Insurance Regulatory

Recognizing the need for a seamless and fully integrated insurance practice, Baker Donelson developed its Insurance Regulatory Group to meet the growing state and federal regulatory challenges to the insurance industry. Our Group is comprised of former senior regulators with more than 50 years of combined service at the highest levels of state insurance departments, senior public policy advisors and lawyers experienced in the expanding role of the federal government in insurance regulation, and seasoned attorneys who have spent decades representing the insurance industry in regulatory matters. We understand the business, legal and regulatory challenges of all types of insurance including health, property and casualty, life and annuities, commercial, reinsurance, workers' compensation, professional liability, disability, title, credit, surplus lines, wind pools and residual markets. Our experience on all sides of the regulatory equation and with both state and federal regulators uniquely qualifies us to help our clients successfully meet every conceivable insurance regulatory challenge.

Our Commitment

We are committed to providing each client with the best possible professional service, while remaining cost-effective and time efficient. We begin each engagement by making sure that we understand the client's objectives. We assemble the Firm team best qualified to help the client achieve those specific goals. We then work with the client to develop and execute an action plan designed for success. We also use our extensive contact base to collaborate with other industry professionals and experts when needed to achieve the desired result.

Our Team

Our Insurance Regulatory Group is distinguished by both its in-depth, hands-on experience with all types of insurance regulatory issues and the extraordinary leadership our team members have demonstrated throughout their careers.

• Sheila P. Burke, senior public policy advisor in our Washington, D.C. office, has over 19 years of federal public policy and legislative experience at the highest levels on Capitol Hill. As former Deputy Staff Director of the U. S. Senate Finance Committee, former Chief of Staff to Senate Majority Leader Bob Dole and former Secretary of the U.S. Senate, Ms. Burke has been directly involved in federal legislation and regulatory actions relating to Medicare, Medicaid, the Maternal and Child Health programs and previous federal efforts to reform health care. A former Executive Dean of the John F. Kennedy School of Government at Harvard University, she currently teaches a health policy course and co-directs a public policy simulation exercise at Harvard, and is a Faculty Research Fellow at Harvard's Malcolm Weiner Center for Social Policy. She currently serves as a Research Professor at the Public Policy Institute; as a Distinguished Visitor at the O'Neill Institute for National and Global Health Law at Georgetown University; on the Board of Directors of the Bipartisan Policy Center in Washington; on the Kaiser Foundation Commission on Medicaid and the Uninsured; on the Commission to Build a Healthier America, Robert Wood Johnson Foundation; on the Presidential Advisory Council, National Academy of Public Administration; and as Chair of the Committee on Future Directions for the National Healthcare Quality and Disparities Report, Institute of Medicine, National Academy of Sciences. Ms. Burke formerly served as Chairman of the Board of Trustees, The Henry J. Kaiser Family Foundation and as a member of the Medicare Payment Advisory Commission (MEDPAC). Ms. Burke's initial career as a nurse gives her a common sense understanding of the practical impact of healthcare and health insurance regulatory issues. She is an elected fellow to the American Academy of Nursing, and a member of the nursing honor society, Sigma Theta Tau, and the American Nurses Association. Ms. Burke currently serves on the Boards of The Chubb Corporation and WellPoint, Inc., further evidencing the value attached to her insights into national health policy and health insurance issues.
• Alisa Chestler, attorney in our Washington, D.C. office, previously served as Vice President, Associate General Counsel, at APS Healthcare, Inc., a national specialty health company, and as in-house counsel with CareFirst BlueCross BlueShield and Magellan Health Services. As a former "consumer" of outside legal services, Ms. Chestler understands what corporate counsel and senior management for health care companies and insurers need and expect from outside counsel. Ms. Chestler is equally adept at recognizing new regulatory issues and providing timely alerts and analysis, as she is helping clients respond to systemic compliance challenges, such as the mandatory reporting requirements under Medicare Secondary Payor rules for employers and insurers and implementation of the new federal Patient Protection and Affordable Care Act (PPACA). She has extensive experience with Medicare and Medicaid, all types of federal and state regulatory compliance issues, negotiation of vendor and provider contracts, operational issues, policy and procedural development, litigation management, administrative hearings, health plan operations and negotiations, credentialing, licensing and responding to market conduct examinations. Ms. Chestler serves as Chair of the Compliance Committee of the Care Continuum Alliance, formerly the Disease Management Association of America.
• George Dale, senior public policy advisor in our Jackson, Mississippi office, served 32 years as the elected Insurance Commissioner for the State of Mississippi. Commissioner Dale is a nationally recognized leader in insurance regulatory matters. As head of the Mississippi Insurance Department, Commissioner Dale dealt with every conceivable type of regulatory problem and all types of insurance. He often worked closely with senior industry executives, state insurance commissioners and state insurance departments from across the country, and he has maintained those relationships. Commissioner Dale has decades of experience in finding common ground between the regulator's responsibilities and the industry's needs. Having experienced eight hurricanes from Camille to Katrina, Commissioner Dale has a special understanding of the challenges such catastrophic disasters bring to the insurance industry, regulators, policyholders, local and state governments, the business community and insurance markets. Commissioner Dale is active in the National Association of Insurance Commissioners (NAIC), serving since 2009 as President of the Passé Club comprised of former state insurance commissioners and directors.
• Lee Harrell, attorney in our Jackson, Mississippi office, served as General Counsel and Deputy Commissioner of the Mississippi Insurance Department for 16 years. Mr. Harrell oversaw all departmental legal, regulatory and administrative matters; managed the Department's response to Hurricane Katrina; and played a key role in the multi-state investigation and prosecution of Martin Frankel, perpetrator of the largest insurance fraud scheme in American history. It is difficult to imagine any type of insurance regulatory matter with which Mr. Harrell is not familiar, from routine licensures to complex rate filings and complicated corporate reorganizations. Mr. Harrell has been directly involved in numerous receiverships and has been a keynote speaker at multiple national meetings of the International Association of Insurance Receivers. Mr. Harrell participated in or supervised every market conduct and financial examination conducted by the Mississippi Insurance Department during his tenure at the Department, many of which required coordination with other state insurance departments and local, state and federal regulatory and law enforcement agencies. Like Commissioner Dale, Mr. Harrell has worked with senior industry executives, insurance commissioners and state insurance departments across the country, as well as numerous actuaries, accountants and other attorneys who work in the insurance regulatory area. Mr. Harrell has also been a regular participant at meetings of the National Association of Insurance Commissioners and the SouthEastern Regulators Association (SERA).
• Errol King, attorney in our Baton Rouge, Louisiana office, serves as General Counsel and as a member of the Louisiana Managed Health Care Advisory Board, which advises the Louisiana Insurance Commissioner on managed care issues. Mr. King works with regional and national clients in the areas of provider contracting, risk management, state and federal regulatory issues, Medicare/Medicaid and health care litigation, including ERISA cases. Recognized as a leader in his field, Mr. King has spoken to industry and legal groups over 33 times and authored 14 articles on health care and health insurance issues. Mr. King is a member of the Federation of Regulatory Counsel, Inc., and is listed among the Best Lawyers in America® and Louisiana Super Lawyers.
• William S. Mendenhall, attorney in our Jackson, Mississippi office, has over 25 years experience representing insurance companies in a multitude of transactional and regulated matters, complicated mergers and acquisitions, complex filings, and contentious regulatory hearings and litigation. As primary corporate and regulatory counsel to one of Mississippi's largest domestic insurance companies, Mr. Mendenhall understands both the business and regulatory sides of the insurance industry. Mr. Mendenhall is listed in Best Lawyers in America®, Chambers Leading Lawyers, and Mid-South Super Lawyers. Mr. Mendenhall has served as Chairman of the Mississippi Law Institute and President of Stewpot Community Services, Inc.
• Alan Moore, attorney in our Jackson, Mississippi office, has over 35 years of legal and business experience with insurance regulatory matters such as routine and complex rate filings, insurance-related legislation, change of control and holding company issues, financial statements and examinations, and product development. His 12 years as the owner/CEO of a small privately held life insurance company gives him a practical understanding of the insurance business and its regulation. Mr. Moore has served as President of the Leadership Mississippi Alumni Association, Chairman of the Mississippi World Trade Center Board of Directors, and Chairman of the Advisory Board of the William Winter Institute for Racial Reconciliation at the University of Mississippi. Mr. Moore is listed in Best Lawyers in America®, and is Chair of the Firm's Insurance Regulatory Group.
• Dickie Patterson, attorney in our Baton Rouge, Louisiana office, formerly served as the Deputy Commissioner, Office of Health Insurance, for the Louisiana Department of Insurance, where he had compliance oversight responsibility for health insurance companies in Louisiana. Mr. Patterson also formerly served as General Counsel for the largest workers' compensation insurer in Louisiana. Mr. Patterson's experience on both the regulatory and industry side of health insurance and workers' compensation issues enables him to understand competing interests and build consensus on regulatory, legislative and public policy issues. For example, Mr. Patterson led a successful nationwide effort by workers' compensation insurance companies to amend the privacy sections of the federal Health Insurance Portability and Accountability Act (HIPAA) prior to passage to ensure the flow of injured workers' health information from health care providers to workers' compensation payors. Mr. Patterson is listed among Best Lawyers in America®.
• D. Jeffrey Wagner, attorney in our Jackson, Mississippi office, brings a unique and highly important perspective and experience to our Group. Mr. Wagner was employed by a major reinsurance company for five years as an actuarial student with financial analysis and reporting responsibilities, before becoming an attorney. This background gives Mr. Wagner special insight into actuarial opinions and studies and other actuarial-based information, which are often critical elements in product development, underwriting standards, financial reports and financial examinations, rate filings, and other insurance matters. In addition to his insurance regulatory work, Mr. Wagner has significant experience in complex financial, commercial, organizational, and contracting transactions for corporate, non-profit and public clients.
• W. Scott Welch, attorney in our Jackson, Mississippi office, has over 40 years experience as lead counsel in numerous complex insurance related matters, with more than 125 reported decisions in the state and federal courts in Mississippi and the United States Court of Appeals for the Fifth Circuit. Mr. Welch recently served as lead counsel for major insurers in huge class action claims litigation, a complex market conduct examination and a Wind Pool class action law suit, all related to Hurricane Katrina. Mr. Welch is past President of The Mississippi Bar Association, and past National President of the American Board of Trial Advocates (ABOTA) and the Foundation of ABOTA. Mr. Welch was a state delegate to the American Bar Association (ABA) House of Delegates (2001-2006) and on the ABA Board of Governors (2006-2009). As a member of the ABA Board of Governors, Mr. Welch served as its Liaison to the Tort Trial and Insurance Practice Section. Mr. Welch is listed in Chambers Leading Lawyers and Lawdragon 500 Leading Lawyers.

Our Experience

With a team comprised of former senior state insurance regulators, leaders in federal insurance-related legislative and public policy issues, former in-house industry lawyers, attorneys familiar with all types of compliance challenges and financial and market conduct examinations, lawyers with experience on the management and actuarial side of the industry, and attorneys with decades of experience as lead counsel in high profile class action and industry-changing litigation, the Baker Donelson Insurance Regulatory Group quite literally understands the insurance industry and its regulatory world, inside out.

Catastrophic Disasters: Unless you have worked through the legal, regulatory and business nightmares which follow a catastrophic disaster such as a multi-state Category 4 or 5 hurricane, it is difficult to understand the full range, complexity and sheer quantity of insurance-related challenges which are immediately visited on regulators, insurers, policyholders, local and state governments, and the general public. Hurricane Katrina brought unprecedented losses to the insurance industry and extraordinary regulatory challenges, including tens of thousands of claims; massive class action claims-related litigation; state and federal investigations; state and federal legislative proposals; company insolvencies, withdrawals and rate adjustments; wind pool disputes and litigation; comprehensive market conduct and claims resolution target examinations; and the design and implementation of new remediation, claims settlement and mitigation programs. Working together, Commissioner Dale and Mr. Harrell managed all activities of the Mississippi Insurance Department in the protracted aftermath of Hurricane Katrina. Other team members played lead roles on behalf of the insurance industry in huge class action lawsuits, multiple and overlapping state and federal investigations, highly contentious financial and market conduct target examinations, and complicated insolvencies and corporate reorganizations resulting from the financial impact of the hurricane. Our experience on multiple sides of that catastrophe gives us a unique ability to help our clients when, not if, the next catastrophic disaster strikes, whether caused by nature or man-made.

Compliance and Self Audits: The former state regulators, former senior inside lawyers for insurance companies, and senior trial attorneys on our team have been involved on all sides of financial and market conduct examinations, giving us a wrap-around perspective on how to conduct, prepare for and respond to regularly scheduled examinations and complex, public, highly contested "for cause" examinations. As needed, we have collaborated with consulting actuaries, independent auditors and certified public accountants to help our clients. We always try to resolve financial and market conduct issues promptly without protracted hearings or litigation, and without creating additional legal or regulatory issues. But if a hearing or litigation is necessary, we have the experience and manpower to aggressively defend and protect our clients. Because we have a 360 degree view of the regulatory world, we also know how to minimize our clients' exposure by proactively establishing sound corporate governance and best practices programs and conducting self-audits and reviews.

Expert Testimony, Consultation and Strategic Planning: Three members of our team have more than 50 combined years of experience in considering and deciding complex regulatory matters while serving in senior positions within state insurance departments, giving them unique insights and high credibility when providing expert testimony and strategic advice. Our broad experience in federal healthcare legislation and regulation, federal health insurance regulation, and state insurance regulation enables us to bring added value to both state insurance departments and health insurance companies developing action plans and long term strategies in response to the new Patient Protection and Affordable Care Act. With her Capitol Hill background, participation on numerous healthcare public policy boards and study groups, and inside "C Suite" knowledge of the insurance industry, Ms. Burke is especially well qualified to assist in corporate strategic planning.

Fraud and White Collar Crime: Our team has experience on the investigative, prosecutorial and defense sides of insurance related criminal matters, giving us a full understanding of the regulator's duty to investigate fraud and recover assets, the government's authority and discretion to prosecute, and the defendant's right to an aggressive defense. Prior to joining the Firm, team members coordinated both state and federal criminal investigations and assisted in the prosecution of cases related to misappropriation, forgery, the Racketeer Influenced and Corrupt Organizations Act (RICO) and other white collar crimes. Team members have prosecuted and defended against civil penalties and restitution claims, and have been deeply involved in all aspects of complicated, multi-state insolvencies and asset recovery efforts on behalf of receivers/liquidators and other parties. For example, as part of the investigatory team which first discovered the fraudulent dealings of Martin Frankel, Commissioner Dale and Mr. Harrell helped coordinate over 100 multi-jurisdictional legal proceedings and law suits and assisted federal and state law enforcement authorities during the investigation of Frankel's misappropriation of over $200 million from seven companies in five states. We have also represented multiple clients appearing as witnesses before federal and state grand juries.

Industry and Trade Association Support: We routinely participate in the National Association of Insurance Commissioners (NAIC) meetings and are familiar with the leadership role played by NAIC on both state and federal levels, including under the Patient Protection and Affordable Care Act. We regularly attend meetings of the SouthEastern Regulators Association (SERA) and coordinate with other trade associations on various insurance matters. Our active participation in these organizations enables us to provide our clients with the up-to-date, inside knowledge and support they need to accomplish their goals.

Insolvencies and Asset Recoveries: Our attorneys have represented both insurance departments and companies in complicated, multi-state insolvencies and asset recovery proceedings and litigation. We have placed and defended companies in administrative supervision and liquidation, and have consistently achieved favorable results.

Licensing: Differences in state licensure laws can pose a major problem for any company seeking to do business in a particular state or simultaneously in multiple states. We have special insight into this challenge through our work with state departments of insurance across the country; our participation in NAIC, SERA and other national and regional regulatory trade organizations; and our experience with multi-state insurance-related licensees of all types, such as producers, agencies, third party administrators, managing general agents, health maintenance organizations, preferred provider organizations and utilization review companies. Our experience with numerous state insurance regulators is especially helpful in handling multi-state licensing engagements on an efficient and cost-effective basis.

Organizational and Transactional Matters: Our attorneys have represented clients in all types of organizational and transactional matters ranging from the formation of insurance companies to reorganizations to dissolutions and everything in between. We have formed insurers, reinsurers and captive companies, and have obtained the necessary Certificates of Authority to operate these entities. We have experience with a wide variety of reinsurance matters, including assumption and proportional and excess indemnity. We have handled the creation, expansion and liquidation of holding company systems and other reorganizations, and corporate restructurings including mutualizations, demutualizations and redomestications. We handle private and public securities offerings, stock splits and reverse stock splits. We have accomplished all types of insurance company mergers and acquisitions, including multi-state and cross-entity statutory mergers, share exchanges, recapitalizations and asset acquisitions. We have handled divestitures and liquidations. As an example of our ability to handle large, unusual transactions, we represented the Mississippi Insurance Department in its review of a complicated, one-of-a-kind corporate restructuring of Mississippi's largest property and casualty insurer with approximately $1.6 billion in assets. This project included retaining and managing outside experts on behalf of the Department; interpreting complicated corporate organizational documents; advising the Department on applicable holding company and change of control statutes; analyzing and organizing more than 20,000 documents produced by the applicants; and planning and conducting the change of control hearing.

Patient Protection and Affordable Care Act (PPACA) and Other Federal Regulation: Our team includes senior public policy advisors and attorneys experienced in the development of PPACA and knowledgeable of the vast array of regulations being promulgated under PPACA, former state regulators who understand the challenges faced by state insurance departments trying to comply with PPACA, and individuals who understand the impact of PPACA on the business side of health insurance. We monitor federal and state actions related to PPACA daily and advise a wide range of stakeholders, including health insurance companies, state insurance departments, industry trade associations and organizations, and others, on how they are impacted and how to respond and comply - an ever changing challenge. The issues raised by PPACA are expansive and fluid, requiring continuing attention as new regulations are rolled out. For example, we regularly assist state insurance departments and companies with premium rate review requirements, medical loss ratio issues, and health insurance exchange regulation and development under PPACA. We have also advised numerous clients on other areas of federal oversight of the health care and health insurance industries for many years, long before the recent enactment of PPACA. Our attorneys and senior public policy advisors are experienced with the Gramm-Leach-Bliley Act (GLB), the Health Insurance Portability and Accountability Act (HIPAA), the Fair Credit Reporting Act, Sarbanes-Oxley, the American Recovery and Reinvestment Act (ARRA), and other federal statutes and regulatory schemes applicable to health care and health insurance.

Privacy, Data Security, Confidentiality and Document Production: Our attorneys are familiar with the various privacy laws including GLB, HIPAA, HITECH and other federal and state requirements, and are well-versed in all types of privacy, data security and document management issues. We have assisted clients in responding to security breaches and have successfully minimized the potential harm to all parties. We can assist clients in developing, testing and monitoring a seamless, privacy-based data security system. We have initiated and responded to numerous public records and FOIA requests. We have direct experience in preserving the confidentiality of company records disclosed to regulators in market conduct and financial examinations. Our team also routinely manages electronic discovery and document production requests and subpoenas, including those in connection with state and federal criminal proceedings.

Public Policy Initiatives: The importance of strategic and tactical counsel to understand and influence public policy and related legislative, regulatory and administrative actions on insurance issues cannot be understated. We often help our clients with public policy initiatives, legislative lobbying, and administrative advocacy at both the state and federal levels. We develop and execute multi-tiered policy campaigns, and draft, monitor, promote or work against legislation on a single and multi-state basis and on Capitol Hill. We help shape specific state and federal administrative actions, including the promulgation of rules and regulations. We have testified before state administrative and legislative bodies and before the United States Congress. We are particularly focused at this time on monitoring and advising clients on the shifting regulatory and statutory landscape surrounding the health insurance industry under PPACA and other federal statutes and regulations.

Rate Hearings, Administrative Enforcement Actions, Mediations and Litigation: Most regulatory disagreements are resolved through negotiation. However, if a more formal process is needed for our clients to reach their goals, we have the experience to be successful. We have participated in numerous administrative hearings and mediations; defended against state regulatory actions; played lead roles in guaranty fund disputes and litigation; managed multi-state judicial liquidations and asset recovery proceedings; defended class action litigation related to premium insurance taxes, provider discounts, race-based premiums and claims practices following Hurricane Katrina; negotiated and litigated wind pool assessment disputes; and both managed and defended complicated financial and market conduct examinations. Traditionally, premium rate filings have been handled by in-house company teams and negotiated quietly with state regulators. Post-Katrina, property and casualty rate filings have become more contentious. The new federal Patient Protection and Affordable Care Act imposes controls and requires an aggressive review of health insurance premium rates. All of this has combined to increase the number of public confrontations between insurance companies and state regulators charged with approving rates. Because of our experience on both sides of that regulatory equation, and our hands-on experience in conducting and participating in numerous state administrative and regulatory hearings, we are exceptionally well positioned to help our clients achieve the rates they require.

Why Baker Donelson?

Many law firms promote their experience in insurance regulatory matters. What sets Baker Donelson apart?

• The insurance industry is unique, with its own business models, legal issues and processes, and regulatory challenges. With our experience on each of the business, legal and regulatory sides, we know this industry and its regulatory issues from A to Z.
• The insurance regulatory community is comprised of a relatively small number of state and federal regulators, industry leaders, trade organizations and interest groups. As former high level state regulators, former senior inside corporate counsel, experienced attorneys, and senior state and federal public policy advisers, we know this community and how it operates.
• Our experience on all sides of the insurance regulatory world enables us to recognize key issues and decision points, focus on what is essential and find solutions timely and efficiently.
• Because we understand what regulators do, why they do it and how they do it, we know how to respond to and work with regulators, and we know how to design self-audit and internal compliance programs to minimize regulatory problems on the front end.
• Because we know who the decision makers are within the U.S. Department of Health and Human Services and state insurance departments nationwide, and the processes by which regulatory decisions are made at both the state and federal levels, we are especially well positioned to help all types of clients navigate the Patient Protection and Affordable Care Act and its regulatory progeny in Washington and in the states.
• Our geographic footprint with 18 offices in Alabama, Florida, Georgia, Louisiana, Mississippi, Tennessee, Texas and Washington, D.C. and our experience and contacts with state and federal insurance regulators throughout the country serve our insurance clients well in multi-state, regional and national initiatives.
• With over 600 lawyers, Baker Donelson is able to provide our insurance clients with excellent legal services in other practice areas important to the insurance industry such as corporate finance and securities; real estate; tax; commercial and business litigation; information security management; employment law; asset and risk management; lobbying and public policy; financial services and banking; and intellectual property.
• Because of our leadership experience in prior, extraordinary insurance challenges and our overall depth with over 600 attorneys and public policy advisers, we are especially well-positioned to assist clients facing unusually difficult and significant challenges such as catastrophic disasters, complex fraud and asset recovery efforts, multi-state licensing challenges, contentious rate review filings, financial and market conduct examinations, and responses to and compliance with the Patient Protection and Affordable Care Act.
• Baker Donelson promotes a culture of public service, civic enrichment and leadership. As a Firm and individually, we are known and respected in our local office communities and states. Many of our current and former attorneys and advisors have served in high federal, state and local elected and appointed positions, including Chief of Staff to the President of the United States; U. S. Senate Majority Leader; Secretary of State; Ambassadors to Japan, Turkey, Saudi Arabia and the Sultanate of Oman; Secretary of the Navy; Chief of Staff of the Supreme Court of the United States; Director of the Administrative Office of the United States Courts; Member of President's Domestic Policy Council; Secretary of the Senate; Majority and Minority Staff Director of the U. S. Senate Committee on Appropriations; Counsel to the Deputy Secretary for the U. S. Department of Health and Human Services; Governors of the States of Mississippi and Tennessee; United States Circuit Court of Appeals Judge; United States District Courts Judges; and United States Attorneys.
• We understand that people from different backgrounds provide valuable perspectives and approaches to solving legal problems. Diversity in person and thought is an integral part of our Firm's value system.
• Most importantly, we always put our clients first.