Fletcher Does Not

•  The Ganske-Dingell-Norwood-Berry bill protects employers first by using a "designated decision maker" who assumes all liability for the employer. The insurance company is automatically the designated decision maker, unless the employer affirmatively acts to change this.

The Fletcher bill does not offer this automatic protection. In fact, there is no requirement that the issuer be the designated decision maker and there is no guarantee that there will be a designated decision maker. If there is no designated decision maker appointed, liability falls on the employer.

• The Ganske-Dingell-Norwood-Berry bill also protects employers by using the "direct participation" standard for employers who either actively choose not to use the designated decision maker protection or who run their own insurance plan in-house and do not contract with a third party administrator or insurer. Under this standard, unless the employer directly participated in the decision that caused harm, the employer would be protected. Just paying claims is not enough. The direct participation protection also explicitly lists instances that are not direct participation, such as advocating for employees.

The Fletcher bill does not include the direct participation protection, which means that self-insured, self-administered employer health plans that do not use insurance companies, or other employers who choose not to use a designated decision maker, will be liable. These employers will not be protected under the Fletcher bill.

• The Ganske-Dingell-Norwood-Berry bill ensures that an injured patient will always be able to obtain recourse. Under this bill, employers are protected by the designated decision maker, and the patient can sue any other responsible party. And, a patient does not need to have a specific cause of action created in a state against a designated decision maker in order to get redress.

Under the Fletcher bill, a patient has no ability to hold anyone but the designated decision maker responsible. If there is none, or there is not a cause of action specifically against designated decision makers, or if the designated decision maker can point the finger at someone else, a patient has no remedy.

• The Ganske-Dingell-Norwood-Berry bill protects patients and employers without loopholes that leave injured patients without redress. This bill does not allow insurance companies and other entities to create layer upon layer of decision makers, leaving it impossible for patients to ever sort out who is liable.

The Fletcher bill allows insurance companies to designate decision makers, and there could be multiple decision makers for many different tasks. Unscrupulous insurance companies could set up multiple decision makers who would point fingers at one another, leaving patients with no recourse.

• The Ganske-Dingell-Norwood-Berry bill only creates liability in Federal court for very limited circumstances – for injuries resulting from improper coverage, eligibility, or express benefit exclusion decisions. It does not open up liability for any plan-related trouble.

The Fletcher bill would make plans liable for endless errors and omissions in Federal court pertaining to a claim for benefits.

• The Ganske-Dingell-Norwood-Berry bill exempts self-insured, self-administered employer health plans from any liability in Federal court for contract decisions that cause injuries.

The Fletcher bill provides no such protections for these plans.

• The Ganske-Dingell-Norwood-Berry bill protects individual board members, trustees, or volunteers of employer plans from personal liability by virtue of being on a board of trustees of an employer.

The Fletcher bill offers no such protection.

• The Ganske-Dingell-Norwood-Berry bill completely protects physicians and other health care professionals and prevents HMOs from shifting their liability to doctors. The bill includes an "indemnification" provision which prevents HMOs from shirking their liability to doctors.

The Fletcher bill contains no such protection.