II

105TH CONGRESS

1ST SESSION S. 1136

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

that the State preemption rules shall not apply to certain actions under

State law to protect health insurance policyholders.

IN THE SENATE OF THE UNITED STATES

JULY 31, 1997

Mr. DURBIN introduced the following bill; which was read twice and referred

to the Committee on Labor and Human Resources

A BILL

To amend the Employee Retirement Income Security Act

of 1974 to provide that the State preemption rules shall

not apply to certain actions under State law to protect

health insurance policyholders.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Employee Health In5 surance Accountability Act of 1997’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds that—
2

•S 1136 IS

1 (1) employer-sponsored health insurers’ treat2 ment rules and coverage determinations affect pa3 tients’ receipt of health care by restricting the health

4 services that are available to patients;

5 (2) physicians’ behavior is affected by employer6 sponsored health insurers’ treatment and coverage

7 determinations;

8 (3) medical malpractice is almost exclusively

9 within the jurisdiction of the States;

10 (4) section 514(a) of the Employer Retirement

11 Income Security Act of 1974 (29 U.S.C. 1144(a)

12 (‘‘ERISA’’)) generally preempts State lawsuits

13 against the entities that provide employee benefits

14 and retirement plans while allowing lawsuits against

15 physicians;

16 (5) there is a split among the United States

17 Courts of Appeals on whether ERISA preempts

18 medical malpractice suits against employer-spon19 sored health insurers;

20 (6) in the jurisdictions in which the Courts of

21 Appeals have held that ERISA preempts medical

22 malpractice suits against employer-sponsored health

23 insurers, patients who may have been injured due to

24 their employer-sponsored health insurers’ treatment

25 and coverage determinations have been left without
3

•S 1136 IS

1 a right of action under which to bring a lawsuit to

2 seek just redress for their injuries; and

3 (7) it is, therefore, necessary to amend ERISA

4 to clarify that State medical malpractice suits

5 against an employer-sponsored health insurer are

6 not preempted.

7 (b) PURPOSES.—The purposes of this Act are as fol8 lows:

9 (1) To restore accountability to employer-spon10 sored health insurers for the impact of their treat11 ment rules and coverage determinations on patients’

12 health.

13 (2) To increase patient protection from adverse

14 effects on their health due to their employer-spon15 sored health insurers’ treatment rules and coverage

16 determinations.

17 (3) To provide patients with legal redress when

18 their employer-sponsored health insurers’ treatment

19 rules and coverage determinations cause them harm.

20 (4) To provide more equitable assignment of li21 ability among health care decision-makers so that

22 plaintiffs are not forced to attempt to hold physi23 cians liable for the treatment rules and coverage de24 terminations of employer-sponsored health insurers.
4

•S 1136 IS

1 SEC. 3. ERISA PREEMPTION NOT TO APPLY TO CERTAIN

2 ACTIONS INVOLVING HEALTH INSURANCE

3 POLICYHOLDERS.

4 (a) IN GENERAL.—Section 514(b) of the Employee

5 Retirement Income Savings Act of 1974 (29 U.S.C.

6 1144(b)) is amended by redesignating paragraph (9) as

7 paragraph (10) and by inserting after paragraph (8) the

8 following paragraph:

9 ‘‘(9) Subsection (a) shall not be construed to

10 preempt any cause of action under State law to re11 cover damages for medical malpractice, personal in12 jury, or wrongful death against any entity that

13 arises out of the provision by such entity of insur14 ance or administrative services to or for an employee

15 welfare benefit plan maintained to provide health

16 care benefits.’’

17 (b) EFFECTIVE DATE.—The amendment made by

18 subsection (a) shall apply to causes of action arising on

19 or after the date of enactment of this Act.

Æ