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Regulation and Compliance > Litigation

PPACA World: Where’s the litigation?

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The Patient Protection and Affordable Care Act of 2010 (PPACA) has spawned many constitutional challenges, and a flood of legal advisory work.

Lawyers have filled the Web with guides explaining the terrors that could face employers, insurers, benefit plan administrators and brokers that fail to get PPACA-related paperwork right.

See also: How could anyone object to wellness programs?

But, at this point, the flow of litigation resulting from the effects of PPACA as a law, as opposed to efforts by PPACA opponents to kill the law, seems light.

Andrew Struve, a partner at Manatt, Phelps & Phillips LLP, gave that assessment last week in an interview. Other Manatt lawyers have been helping states set up and run state-based public exchanges. Struve himself is co-chair of the firm’s health care litigation practice. He monitors filings of new PPACA court cases closely.

Up till now, “we haven’t seen that much private litigation surrounding implementation difficulties,” Struve said. “I would have anticipated a lot more litigation.”

Struve said he has not seen much PPACA-related operational litigation, either.

Consumers may be filing occasional suits involving questions about whether they are receiving the services they are supposed to be receiving, but the tight new PPACA limits on individual coverage medical underwriting have eliminated most suits involving questions about medical underwriting, Struve said.

PPACA is encouraging health care providers to team up to coordinate care and share the financial risk involved with providing care. “Some of those partnerships will not work out,” Struve said.

Today, Struve said, the new provider organizations are still in the process of getting married, or going on their honeymoons, not talking to divorce lawyers.

Struve said his current PPACA-related work mostly involves litigation prevention, as opposed to active court cases. ”Part of the art of winning a fight is avoiding one,” Struve said.

Struve said agents and brokers who want to inoculate themselves against PPACA-related litigation should use the same principles they’ve always used.

“Transparency,” Struve said. “Disclosure. Understanding what the [employer] group’s experience is, what their access issues are.”

Employers that are moving from one insurer to another, or from one benefits administrator to another, should make sure to get the communications and actuarial work right, to prevent the kinds of misunderstandings that could lead to serious conflicts, Struve said.

See also: PPACA creeps into state and local courts: 5 early cases


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