I 

111TH CONGRESS 

1ST SESSION H. R. 3925 

To amend the Employee Retirement Income Security Act of 1974 to preclude 

preemption of a State cause of action relating to a denial of a claim 

for benefits under a health care plan. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 26, 2009 

Mr. MCDERMOTT introduced the following bill; which was referred to the 

Committee on Education and Labor 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 to preclude preemption of a State cause of 

action relating to a denial of a claim for benefits under 

a health care plan. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. ERISA PREEMPTION NOT TO APPLY TO CER4 TAIN STATE LAW CAUSES OF ACTION. 

5 (a) IN GENERAL.—Section 514 of the Employee Re6 tirement Income Security Act of 1974 (29 U.S.C. 1144) 

7 is amended— 


jbell on DSKDVH8Z91PROD with BILLS
2 

•HR 3925 IH

1 (1) by redesignating subsections (d) and (e) as 

2 subsection (e) and (f), respectively, and 

3 (2) by inserting after subsection (c) the fol4 lowing new subsection: 

5 ‘‘(d) PREEMPTION NOT TO APPLY TO CAUSES OF

6 ACTION UNDER STATE LAW INVOLVING MEDICALLY RE7 VIEWABLE DECISION.— 

8 ‘‘(1) IN GENERAL.—Except as provided in this 

9 subsection, nothing in this title (including section 

10 502) shall be construed to supersede or otherwise 

11 alter, amend, modify, invalidate, or impair any cause 

12 of action under State law of a participant or bene13 ficiary under a group health plan (or the estate of 

14 such a participant or beneficiary) against the plan, 

15 the plan sponsor, any health insurance issuer offer16 ing health insurance coverage in connection with the 

17 plan, or any managed care entity in connection with 

18 the plan to recover damages resulting from personal 

19 injury or for wrongful death if such cause of action 

20 arises by reason of a medically reviewable decision. 

21 ‘‘(2) DEFINITIONS AND RELATED RULES.—For 

22 purposes of this subsection— 

23 ‘‘(A) MEDICALLY REVIEWABLE DECI24 SION.—The term ‘medically reviewable decision’ 


jbell on DSKDVH8Z91PROD with BILLS
3 

•HR 3925 IH

1 means a denial of a claim for benefits under the 

2 plan. 

3 ‘‘(B) PERSONAL INJURY.—The term ‘per4 sonal injury’ means a physical injury and in5 cludes an injury arising out of the treatment 

6 (or failure to treat) a mental illness or disease. 

7 ‘‘(C) CLAIM FOR BENEFIT.—The term 

8 ‘claim for benefits’ means any request for cov9 erage (including authorization of coverage), for 

10 eligibility, or for payment (or reimbursement 

11 for payment) in whole or in part, for an item 

12 or service under a group health plan or health 

13 insurance coverage. 

14 ‘‘(D) DENIAL OF CLAIM FOR BENEFITS.— 

15 The term ‘denial’ means, with respect to a 

16 claim for benefits, a denial (in whole or in part) 

17 of, or a failure to act on a timely basis upon, 

18 the claim for benefits and includes a failure to 

19 provide benefits (including items and services) 

20 required to be provided under this title. 

21 ‘‘(E) MANAGED CARE ENTITY.— 

22 ‘‘(i) IN GENERAL.—The term ‘man23 aged care entity’ means, in connection with 

24 a group health plan and subject to clause 

25 (ii), any entity that is involved in deterVerDate Nov 24 2008 01:41 Oct 27, 2009 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3925.IH H3925

jbell on DSKDVH8Z91PROD with BILLS
4 

•HR 3925 IH

1 mining the manner in which or the extent 

2 to which items or services (or reimburse3 ment therefor) are to be provided as bene4 fits under the plan. 

5 ‘‘(ii) TREATMENT OF TREATING PHY6 SICIANS, OTHER TREATING HEALTH CARE

7 PROFESSIONALS, AND TREATING HOS8 PITALS.—Such term does not include a 

9 treating physician or other treating health 

10 care professional of the participant or ben11 eficiary and also does not include a treat12 ing hospital insofar as it is acting solely in 

13 the capacity of providing treatment or care 

14 to the participant or beneficiary. Nothing 

15 in the preceding sentence shall be con16 strued to preempt vicarious liability of any 

17 plan, plan sponsor, health insurance issuer, 

18 or managed care entity. 

19 ‘‘(3) EXCLUSION OF EMPLOYERS AND OTHER

20 PLAN SPONSORS.— 

21 ‘‘(A) CAUSES OF ACTION AGAINST EM22 PLOYERS AND PLAN SPONSORS PRECLUDED.— 

23 Subject to subparagraph (B), paragraph (1) 

24 does not apply with respect to— 


jbell on DSKDVH8Z91PROD with BILLS
5 

•HR 3925 IH

1 ‘‘(i) any cause of action against an 

2 employer or other plan sponsor maintain3 ing the plan (or against an employee of 

4 such an employer or sponsor acting within 

5 the scope of employment), or 

6 ‘‘(ii) a right of recovery, indemnity, or 

7 contribution by a person against an em8 ployer or other plan sponsor (or such an 

9 employee) for damages assessed against 

10 the person pursuant to a cause of action to 

11 which paragraph (1) applies. 

12 ‘‘(B) CERTAIN CAUSES OF ACTION PER13 MITTED.—Notwithstanding subparagraph (A), 

14 paragraph (1) applies with respect to any cause 

15 of action that is brought by a participant or 

16 beneficiary under a group health plan (or the 

17 estate of such a participant or beneficiary) to 

18 recover damages resulting from personal injury 

19 or for wrongful death against any employer or 

20 other plan sponsor maintaining the plan (or 

21 against an employee of such an employer or 

22 sponsor acting within the scope of employment) 

23 if such cause of action arises by reason of a 

24 medically reviewable decision, to the extent that 

25 there was direct participation by the employer 


jbell on DSKDVH8Z91PROD with BILLS
6 

•HR 3925 IH

1 or other plan sponsor (or employee) in the deci2 sion. 

3 ‘‘(C) DIRECT PARTICIPATION.— 

4 ‘‘(i) DIRECT PARTICIPATION IN DECI5 SIONS.—For purposes of subparagraph 

6 (B), the term ‘direct participation’ means, 

7 in connection with a decision described in 

8 subparagraph (B), the actual making of 

9 such decision or the actual exercise of con10 trol in making such decision or in the con11 duct constituting the failure. 

12 ‘‘(ii) RULES OF CONSTRUCTION.—For 

13 purposes of clause (i), the employer or plan 

14 sponsor (or employee) shall not be con15 strued to be engaged in direct participation 

16 because of any form of decisionmaking or 

17 other conduct that is merely collateral or 

18 precedent to the decision described in sub19 paragraph (B) on a particular claim for 

20 benefits of a particular participant or bene21 ficiary, including (but not limited to)— 

22 ‘‘(I) any participation by the em23 ployer or other plan sponsor (or em24 ployee) in the selection of the group 

25 health plan or health insurance covVerDate Nov 24 2008 01:41 Oct 27, 2009 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3925.IH H3925

jbell on DSKDVH8Z91PROD with BILLS
7 

•HR 3925 IH

1 erage involved or the third party ad2 ministrator or other agent; 

3 ‘‘(II) any engagement by the em4 ployer or other plan sponsor (or em5 ployee) in any cost-benefit analysis 

6 undertaken in connection with the se7 lection of, or continued maintenance 

8 of, the plan or coverage involved; 

9 ‘‘(III) any participation by the 

10 employer or other plan sponsor (or 

11 employee) in the process of creating, 

12 continuing, modifying, or terminating 

13 the plan or any benefit under the 

14 plan, if such process was not substan15 tially focused solely on the particular 

16 situation of the participant or bene17 ficiary referred to in paragraph 

18 (1)(A); and 

19 ‘‘(IV) any participation by the 

20 employer or other plan sponsor (or 

21 employee) in the design of any benefit 

22 under the plan, including the amount 

23 of copayment and limits connected 

24 with such benefit.’’. 


jbell on DSKDVH8Z91PROD with BILLS
8 

•HR 3925 IH

1 (b) CONFORMING AMENDMENT.—Section 502(b)(4) 

2 of such Act (29 U.S.C. 1132(b)(4)) is amended by striking 

3 ‘‘514(e)(3)’’ and inserting ‘‘514(f)(3)’’. 

4 (c) EFFECTIVE DATE.—The amendments made by 

5 this section shall apply to acts and omissions (from which 

6 a cause of action arises) occurring on or after the date 

7 of the enactment of this Act. 

Æ 


jbell on DSKDVH8Z91PROD with BILLS