What kinds of group plan suits could PPACA spawn?

(LHP photo/Allison Bell) (LHP photo/Allison Bell)

Lawyers who represent both the plaintiffs and the defendants in benefits law cases are starting to think about how the Patient Protection and Affordable Care Act of 2010 (PPACA) could affect litigation.

Neil Ekblom, a health care lawyer in the New York office of LeClair Ryan, talked about some of the kinds of suits that could surface in connection with the PPACA private health insurance laws during a teleconference organized by his firm.

Other lawyers at the firm talked about PPACA matters such as implementation of the employer "shared responsibility" coverage mandate; how the PPACA rules could affect mergers and acquisitions; and PPACA-related changes in whistleblower rules.

PPACA will require many employers to pay for a "minimum value" percentage of  "minimum essential coverage" that offers "essential health benefits" for employees who work at least 30 hours per week or 130 hours per month or else pay a penalty tax.

PPACA also will require employers and insurers to meet many new notice requirements, Ekblom said, according to a written version of his presentation provided by LeClair Ryan.

PPACA already requires employer plans that offer dependent coverage to make the coverage available to dependents up to age 26; to pay for some preventive services, such as vaccinations, without imposing out-of-pocket costs; and to phase out benefits limits.

Those changes and the health insurance market rule changes will interact with the Employee Retirement Income Security Act (ERISA), Title XXVII of the Public Health Services Act, the private claims provisions of the Fair Labor Standards Act, and Chapter 100 of the Internal Revenue Code, Ekblom said.

Some employers already are suing in federal court to try to keep the U.S. Department of Health and Human Services from making them comply with regulations that could require them to cover contraceptives.

When patients or others try to enforce private claims in court, the targets could include benefit plans and the plans' fiduciaries as well as insurers, Ekblom said.

Workers could sue to:

  • Seek coverage for essential health benefits.
  • Challenge employers that try to stick with old, pre-PPACA rules by claiming grandfather status.
  • Challenge employer efforts to use the state health insurance exchanges to be created by PPACA.

Workers and consumers in the individual market also are likely to sue to try to get coverage for anything not covered, to challenge internal or external claim decision reviews, and to use a variety of federal laws to challenge workforce restructuring moves, Ekblom said.

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