For over 30 years, Art has helped plan sponsors and fiduciaries identify, prioritize, and minimize the litigation and liability risks associated with the management and administration of employee benefit programs through plan drafting, employee communications strategies, plan governance ideas, and “best practice” policies and procedures. Art is experienced in drafting employee benefit plan documents and summary plan descriptions and assists senior executive and board members in understanding their fiduciary responsibilities related to plan governance and taking steps to minimize those responsibilities and the attendant litigation and liability risks.
With broad experience addressing the legal considerations that are unique to health and welfare benefit plans, Art regularly advises plan sponsors, insurers, and health plan service providers on a broad array of issues relating to ERISA, COBRA, the Affordable Care Act (ACA), and HIPAA privacy and security. He has substantial experience negotiating administrative service agreements, business associate agreements, and nondisclosure and data transmission agreements related to the operation and administration of self-funded medical plans. He advises health insurance companies and brokers on designing, documenting, and administering insurance products and services in a manner that comports with applicable law, most notably the ACA.
In ERISA claims and dispute resolution, Art routinely helps claims administrators and administrative committees maintain compliant claims procedures, communicate the procedures to participants, and adhere to the timeline, notice, and substantive requirements of the procedure and federal law to help preserve administrative discretion and minimize litigation and liability risk. When litigation is unavoidable, Art aggressively represents plan sponsors, service providers, employee benefit plans, and plan fiduciaries in the defense of ERISA benefits and fiduciary breach claims. He has argued ERISA cases in federal courts in New York State, including the Second Circuit Court of Appeals. Art also represents plan sponsors and fiduciaries in connection with US Department of Labor investigations and enforcement matters.
In addition, Art draws on his prior in-house financial services industry experience and his prior experience as an owner of an ERISA compliance and recordkeeping firm to provide pragmatic legal advice regarding qualified plan design, 401(k) recordkeeping and administration, and investment program management.
In the area of employee benefit plan documentation and administration, Art:
- Led a team that helped a large public company organize and restructure complex benefit programs into a single, comprehensive ERISA welfare benefits plan and drafted a consolidated ERISA plan document and summary plan description.
- Provided counsel on the implementation and administration of policies and procedures to ensure compliance with FMLA, COBRA, the Children's Health Insurance Program Reauthorization Act, the Genetic Information Nondiscrimination Act, the Wellstone-Domenici Mental Health Parity Act, proposed cafeteria plan regulations, and the Affordable Care Act for a large public company.
In the area of health and wellness benefit plans, Art:
- Provided a large public company with counsel on the implementation and administration of wellness and smoker-cessation initiatives that included advice on HIPAA non-discrimination rules compliance and provided counsel with respect to the implementation and administration of a disease management and electronic health record initiative that included advice regarding compliance with HIPAA and state law privacy and security laws.
- Developed 18 risk management strategies for consideration by employers and other sponsors of self-funded medical plans. These strategies, informed by case law, are designed to reduce litigation and liability risks and include "best practice" recommendations relating to plan document provisions, policies and procedures, and plan governance.
- Led a team providing comprehensive review and negotiation of numerous administrative service agreements related to a large public company client with a complex health care program that included wellness initiatives and electronic health records.
In the area of ERISA litigation, Art:
- Assisted in the successful defense of a national employee benefit plan service provider in a fiduciary breach lawsuit that reached the Second Circuit Court of Appeals.
- Obtained the dismissal of a benefit and fiduciary breach claim arising from a decline in the participant’s account value following a sudden and precipitous decline in the market value of plan investments.
- Secured a favorable ruling on behalf of a claimant in one of the earliest ERISA fiduciary breach suits following the US Supreme Court’s decision in Varity Corp. v. Howe.
In the area of governmental investigations and audits, Art:
- Helped a plan sponsor and fiduciary avoid civil enforcement action arising from an alleged multi-year prohibited transaction. The matter was resolved through voluntary compliance and without penalty.
Regarding compliance standards governing retirement plan recordkeeping and investment programs, Art:
- Led a multidisciplinary team to help a large medical practice restructure its 401(k) recordkeeping and investment management program utilizing a carefully designed and implemented RFP process that included the negotiation of service agreements and fiduciary protections for the benefit of the practice and that minimized (to the extent possible) that fees would meet the reasonableness standard.
- University at Buffalo, J.D.
- Hobart and William Smith Colleges, B.A.
- New York
- U.S. Court of Appeals, 2nd Circuit
- U.S. District Court, Northern District of New York
- U.S. District Court, Western District of New York
- "When 403(b) Prudence Claims Survive Dismissal," Law360, May 16, 2018
- "Inside the Final DOL Regulations on Disability Claims," Law360, February 26, 2018
- Barclay Damon, "Managing and Insuring ERISA Litigation and Liability Risks" Webinar, May 2, 2018
- Panel member for numerous New York State Bar Association-sponsored programs covering employer liability in managed health care, estate planning for qualified plan benefits, and misclassified workers
- Panelist on a national Strafford program covering tax and ERISA rules governing employee benefit plan overpayments
- Co-Author, Thomson Reuter's treatise Taxation of Distributions from Qualified Plans
- "IRS Regulations Clarify Definitions Relating to Same-Sex Marriages," T.D. 9785
- "ERISA Benefit Engagements, Attorney Client Privilege, and Work Product Doctrine," CLE Program 2015
- "The Supreme Court Addresses Federal Health Care Subsidies and Same-Sex Marriage," Employers' Advisor Blog Archives, July 2015
- "EEOC Proposes Wellness Program Rule," Employee Benefits Alert, May 2015
- "In Pursuit of Benefit Plan Overpayments," Employers' Advisor Blog Archives, April 2015
- "New Preventive Services Under the Affordable Care Act," Employee Benefits Alert, December 2014
- "Post-Retirement Medical Benefits Under Siege," Employers' Advisor Blog Archives, September 2014
- "New Obamacare Benefit Mandate Takes Aim at Breast Cancer," Employers' Advisor Blog Archives, June 2014
- "Does Obamacare Strike the Right Balance Between Women’s Contraceptive Rights and Religious Freedom?" Employers' Advisor Blog Archives, January 2014
- "Employee Benefits Implications of Supreme Court’s Defense of Marriage Act Decision," June 2013
- 19th Annual Labor & Employment Conference, Amherst, New York, 2013
- 28th Annual School Client Conference, Buffalo, New York, 2013
- Buffalo Business First Legal Elite Award
- Best Lawyers (Buffalo): Lawyer of the Year - Employee Benefits (ERISA) Law
- The Best Lawyers in America®: Employee Benefits (ERISA) Law and Litigation, 2006-2019
- Selected to Super Lawyers Upstate New York: Employee Benefits, 2008-2018
- Martindale-Hubbell “AV Preeminent” Peer Review Rated for Very High to Preeminent Ethical Standards and Legal Ability