February 2002
Government Relations
Practice Organization
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The Senate-passed Bipartisan Patient Protection Act (S. 1052) incorporates many compromise amendments that offer employers greater protection from liability. These compromises constrain potential legal excesses with common sense limitations on HMO legal accountability while preserving fair redress for injured patients.

Compromises already made:

• Employers may fully protect themselves from liability by naming a “designated decisionmaker” to be responsible and accountable for all medically reviewable decisions. Only the few employers who elect not to name a designated decisionmaker and who choose to directly involve themselves in making medically reviewable decisions for their employees are held accountable for those decisions, just as they should be (Sen. Snowe’s Amendment).
• Patients are required to fully exhaust the appeals process before filing suit with two limited exceptions. A patient facing irreparable harm may seek injunctive relief before exhausting the review, or if the reviewers are delinquent in returning their decision, a patient may bring an action prior to the review’s completion (Sen. Thompson’s Amendment).
• Class action lawsuits are sensibly limited to those beneficiaries in a single health plan (Sen. DeWine’s Amendment).
• Private actions under RICO concerning the manner in which health plans have marketed or provided information about the health plan are prohibited (Sen. DeWine’s Amendment).
• Attorneys’ contingency fees for cases brought in federal court are capped at 33% (Sen. Warner’s Amendment).
• In a move that balances multi-state employers’ desire for uniformity with states’ interest in preserving an area of the law traditionally reserved to them, only state health insurance laws that are certified as “substantially compliant” with the federal law are preserved from preemption (Sen. Breaux and Sen. Jeffords’ Amendment).

February 2002
APA Practice Organization