Full Court Press
Mar 15, 2017


Lawmakers in the U.S. House of Representatives are moving the ball on tort reform at the start of the 115th Congress. Not since the "Contract for America" era of the mid-1990s has tort reform jumped at mid-court in federal politics.








This week, the Fairness in Class Action Litigation Act (H.R. 985passed the House. The measure would permit class-action lawsuits to proceed in federal court only if every person in the class had an injury of the same type and scope. House Judiciary Committee Chairman, and lead sponsor of the bill, Rep. Bob Goodlatte (R-VA), intends the measure to maximize recoveries by deserving victims and weed out meritless claims.



Also moving on, the Innocent Party Protection Act (H.R. 725passed the House this week. This legislation protects individuals from being caught in "dragnet lawsuits" and allows defendants to more readily remove cases to federal court. In the same bracket, the Lawsuit Abuse Reduction Act (H.R. 720), which passed the House this week, would make it easier for the victims of a frivolous lawsuit to seek compensation for meritless suits. The bill would also mandate federal judges to penalize attorneys for filing baseless cases.



The Protecting Access to Care Act (H.R. 1215passed out of the House Judiciary Committee last week. If enacted, this measure would limit medical malpractice injury suits to $250,000 for non-economic damages, including pain and suffering. Currently, there is no federal limit on medical malpractice claims. Although states have already adopted caps on non-economic damages, some state high courts have declared such limits unconstitutional. We are sitting courtside as each of these measures march to the Senate, a round that has ousted similar measures in years past.



A sleeper health care issue is getting hot this March, just as lawmakers tangle with a massive effort to repeal, replace, and score the Affordable Care Act (ACA). The Preserving Employee Wellness Programs Act(H.R. 1313), a measure that would allow employer workplace wellness programs to demand genetic information was approved by a House committee this week. This genetic testing bill will likely advance along with other ACA-related measures that do not affect federal spending.



Workplace wellness programs, which can create employee healthcare saving opportunities, typically include basic biometric screenings, access to gym memberships, and healthcare-related questionnaires. However, two cornerstone laws currently prohibit wellness programs from drawing on genetic testing: the Americans with Disabilities Act (ADA) and the 2008 Genetic Information Nondiscrimination Act (GINA). However, under H.R. 1313, the protections for health and genetic information provided by GINA and the ADA would not apply to workplace wellness programs that comply with the ACA's very limited requirements for the programs. Among the many marquee names in the field this year, we are following GINA closely.

Making Our Way Around The Country


The Department of Labor (DOL) and the Bureau of Labor Statistics (BLS) issued a proposed "Survey of Occupational Injuries and Illnesses." Respondents will include employers who maintain related records in accordance with the Occupational Safety and Health Act (OSH Act) and employers who are normally exempt from such record keeping. The agency will take comments on the survey until April 6, 2017. The survey is designed to measure the overall rate of work injuries and illnesses by industry. The DOL seeks to improve coordination among OSHA, BLS, State Health Directors and the National Institute for Occupational Safety and Health (NIOSH) about differences between federal injury reporting and state workers' compensation. Recent BLS reports have demonstrated a significant reduction in serious occupational injuries and illnesses, just as the administration has targeted the roll back of several worker safety regulations.



The Minnesota Department of Labor and Industry released its retrospective report on the state's workers' compensation system. The 93-page report examined an 18-year history of claim costs, the average cost of premiums, and the breakdown of claim expenses. Despite higher benefits per claim, the North Star State's overall costs are down because of a declining number of claims.



The Committee on Government, Technology and Security of the Kansas House of Representatives debated H.B. 2332, a measure to amplify confidentiality protections to information stored in the cloud. The bill affirms that the attorney-client privilege cannot be compromised by placing communications in cloud storage. A person or entity providing electronic communications or remote computer storage would be prohibited from knowingly disclosing contents to anyone other than a customer or subscriber. Lawyers in the Kansas House laud the bill, but question the status of other privileges such as doctor-patient confidences. Now, if this bill were to pass to the Senate, non-lawyers will have to pick up the debate.



Keeping pace with the state's upper chamber, the Florida House Insurance & Banking Subcommittee opened hearings last week to "workshop" the House's legislative response to Florida Supreme Court rulings that struck down attorney fees and permanent disability benefits. Key provisions of the draft legislation cap attorney's fees at $250 an hour and regulate outpatient care to the Medicare fee schedule. Workers' Compensation will remain a central issue this legislative session, as Florida employers face $1.5 billion in rate increases because of the 2016 state supreme court decisions.



The National Collegiate Athletic Association (NCAA) men's basketball tournament tips off tomorrow - complete with shocking buzzer beaters, unexpected upsets and increased intra-office... camaraderie. And for all of this excitement, the next three breathless weeks of basketball will likely cost employers $2.1 billion in lost productivity. It is a tradition in tournament play not to look beyond the game in front you. So, at least for now, the West Regional has not yet sparked a civil war at The Way. Go! U Northwestern and Let's Go Irish

About The Way

The Way is Gallagher Bassett's weekly governmental briefing on state and federal affairs that affect our industry. We thank you for starting your Wednesday morning with us. Please be sure to follow #GBTheWay for additional news and updates as we make our way throughout the country on the issues affecting our industry. For more information, please connect with GB on LinkedIn, follow us on Twitter, or contact the authors, Greg McKenna or Cari Miller, directly.


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