1.ERISA preemption not To apply
to certain State law causes of action
(a)Section 514 of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1144) is
amended—
(1)by redesignating
subsections (d) and (e) as subsection (e) and (f), respectively, and
(2)by inserting after
subsection (c) the following new subsection:
(d)Preemption not
To apply to causes of action under state law involving medically reviewable
decision
(1)Except as provided in
this subsection, nothing in this title (including section 502) shall be
construed to supersede or otherwise alter, amend, modify, invalidate, or impair
any cause of action under State law of a participant or beneficiary under a
group health plan (or the estate of such a participant or beneficiary) against
the plan, the plan sponsor, any health insurance issuer offering health
insurance coverage in connection with the plan, or any managed care entity in
connection with the plan to recover damages resulting from personal injury or
for wrongful death if such cause of action arises by reason of a medically
reviewable decision.
(2)Definitions and
related rulesFor purposes of this subsection—
(A)Medically
reviewable decisionThe term medically reviewable
decision
means a denial of a claim for benefits under the plan.
(B)The term personal injury
means a physical
injury and includes an injury arising out of the treatment (or failure to
treat) a mental illness or disease.
(C)The term claim
for benefits
means any request for coverage (including authorization of
coverage), for eligibility, or for payment (or reimbursement for payment) in
whole or in part, for an item or service under a group health plan or health
insurance coverage.
(D)Denial of claim
for benefitsThe term denial
means, with respect
to a claim for benefits, a denial (in whole or in part) of, or a failure to act
on a timely basis upon, the claim for benefits and includes a failure to
provide benefits (including items and services) required to be provided under
this title.
(E)
(i)The term managed care entity
means, in
connection with a group health plan and subject to clause (ii), any entity that
is involved in determining the manner in which or the extent to which items or
services (or reimbursement therefor) are to be provided as benefits under the
plan.
(ii)Treatment of
treating physicians, other treating health care professionals, and treating
hospitalsSuch term does not include a treating physician or
other treating health care professional of the participant or beneficiary and
also does not include a treating hospital insofar as it is acting solely in the
capacity of providing treatment or care to the participant or beneficiary.
Nothing in the preceding sentence shall be construed to preempt vicarious
liability of any plan, plan sponsor, health insurance issuer, or managed care
entity.
(3)Exclusion of
employers and other plan sponsors
(A)Causes of action
against employers and plan sponsors precludedSubject to
subparagraph (B), paragraph (1) does not apply with respect to—
(i)any cause of
action against an employer or other plan sponsor maintaining the plan (or
against an employee of such an employer or sponsor acting within the scope of
employment), or
(ii)a
right of recovery, indemnity, or contribution by a person against an employer
or other plan sponsor (or such an employee) for damages assessed against the
person pursuant to a cause of action to which paragraph (1) applies.
(B)Certain causes
of action permittedNotwithstanding subparagraph (A), paragraph
(1) applies with respect to any cause of action that is brought by a
participant or beneficiary under a group health plan (or the estate of such a
participant or beneficiary) to recover damages resulting from personal injury
or for wrongful death against any employer or other plan sponsor maintaining
the plan (or against an employee of such an employer or sponsor acting within
the scope of employment) if such cause of action arises by reason of a
medically reviewable decision, to the extent that there was direct
participation by the employer or other plan sponsor (or employee) in the
decision.
(C)
(i)Direct
participation in decisionsFor purposes of subparagraph (B), the
term direct participation
means, in connection with a decision
described in subparagraph (B), the actual making of such decision or the actual
exercise of control in making such decision or in the conduct constituting the
failure.
(ii)For purposes of clause (i), the employer or plan
sponsor (or employee) shall not be construed to be engaged in direct
participation because of any form of decisionmaking or other conduct that is
merely collateral or precedent to the decision described in subparagraph (B) on
a particular claim for benefits of a particular participant or beneficiary,
including (but not limited to)—
(I)any participation
by the employer or other plan sponsor (or employee) in the selection of the
group health plan or health insurance coverage involved or the third party
administrator or other agent;
(II)any engagement by
the employer or other plan sponsor (or employee) in any cost-benefit analysis
undertaken in connection with the selection of, or continued maintenance of,
the plan or coverage involved;
(III)any
participation by the employer or other plan sponsor (or employee) in the
process of creating, continuing, modifying, or terminating the plan or any
benefit under the plan, if such process was not substantially focused solely on
the particular situation of the participant or beneficiary referred to in
paragraph (1)(A); and
(IV)any participation
by the employer or other plan sponsor (or employee) in the design of any
benefit under the plan, including the amount of copayment and limits connected
with such
benefit.
.
(b)Section 502(b)(4) of such Act (29 U.S.C. 1132(b)(4)) is
amended by striking 514(e)(3)
and inserting
514(f)(3)
.
(c)The amendments made by
this section shall apply to acts and omissions (from which a cause of action
arises) occurring on or after the date of the enactment of this Act.