166
of copayment and limits connected
with such benefit.
‘‘(iii) IRRELEVANCE OF CERTAIN COL-
LATERAL
EFFORTS
MADE
BY
EMPLOYER
OR PLAN SPONSOR.—For purposes of this
subparagraph, an employer or plan sponsor
shall not be treated as engaged in direct
participation in a decision with respect to
any claim for benefits or denial thereof in
the case of any particular participant or
beneficiary solely by reason of—
‘‘(I) any efforts that may have
been made by the employer or plan
sponsor to advocate for authorization
of coverage for that or any other par-
ticipant or beneficiary (or any group
of participants or beneficiaries), or
‘‘(II) any provision that may
have been made by the employer or
plan sponsor for benefits which are
not covered under the terms and con-
ditions of the plan for that or any
other participant or beneficiary (or
any group of participants or bene-
ficiaries).
167
‘‘(D) APPLICATION TO CERTAIN PLANS.—
‘‘(i) IN
GENERAL.—Notwithstanding
any other provision of this subsection, no
group health plan described in clause (ii)
(or plan sponsor of such a plan) shall be
liable under paragraph (1) for the perform-
ance of, or the failure to perform, any non-
medically reviewable duty under the plan.
‘‘(ii) DEFINITION.—A group health
plan described in this clause is—
‘‘(I) a group health plan that is
self-insured and self administered by
an employer (including an employee of
such an employer acting within the
scope of employment); or
‘‘(II) a multiemployer plan as de-
fined in section 3(37)(A) (including
an employee of a contributing em-
ployer or of the plan, or a fiduciary
of the plan, acting within the scope of
employment or fiduciary responsi-
bility) that is self-insured and self-ad-
ministered.
‘‘(6) EXCLUSION OF PHYSICIANS AND OTHER
HEALTH CARE PROFESSIONALS.—
168
‘‘(A) IN GENERAL.—No treating physician
or other treating health care professional of the
participant or beneficiary, and no person acting
under the direction of such a physician or
health care professional, shall be liable under
paragraph (1) for the performance of, or the
failure to perform, any non-medically reviewable
duty of the plan, the plan sponsor, or any
health insurance issuer offering health insur-
ance coverage in connection with the plan.
‘‘(B) DEFINITIONS.—For purposes of sub-
paragraph (A)—
‘‘(i) HEALTH CARE PROFESSIONAL.—
The term ‘health care professional’ means
an individual who is licensed, accredited, or
certified under State law to provide speci-
fied health care services and who is oper-
ating within the scope of such licensure,
accreditation, or certification.
‘‘(ii) NON-MEDICALLY
REVIEWABLE
DUTY.—The term ‘non-medically review-
able duty’ means a duty the discharge of
which does not include the making of a
medically reviewable decision.
169
‘‘(7) EXCLUSION OF HOSPITALS.—No treating
hospital of the participant or beneficiary shall be lia-
ble under paragraph (1) for the performance of, or
the failure to perform, any non-medically reviewable
duty (as defined in paragraph (6)(B)(ii)) of the
plan, the plan sponsor, or any health insurance
issuer offering health insurance coverage in connec-
tion with the plan.
‘‘(8) RULE
OF
CONSTRUCTION
RELATING
TO
EXCLUSION
FROM
LIABILITY
OF
PHYSICIANS,
HEALTH CARE PROFESSIONALS, AND HOSPITALS.—
Nothing in paragraph (6) or (7) shall be construed
to limit the liability (whether direct or vicarious) of
the plan, the plan sponsor, or any health insurance
issuer offering health insurance coverage in connec-
tion with the plan.
‘‘(9) REQUIREMENT OF EXHAUSTION.—
‘‘(A) IN GENERAL.—A cause of action may
not be brought under paragraph (1) in connec-
tion with any denial of a claim for benefits of
any individual until all administrative processes
under sections 102 and 103 of the Bipartisan
Patient Protection Act (if applicable) have been
exhausted.
170
‘‘(B) EXCEPTION FOR NEEDED CARE.—A
participant or beneficiary may seek relief exclu-
sively in Federal court under subsection
502(a)(1)(B) prior to the exhaustion of admin-
istrative remedies under sections 102, 103, or
104 of the Bipartisan Patient Protection Act
(as required under subparagraph (A)) if it is
demonstrated to the court that the exhaustion
of such remedies would cause irreparable harm
to the health of the participant or beneficiary.
Notwithstanding the awarding of relief under
subsection 502(a)(1)(B) pursuant to this sub-
paragraph, no relief shall be available as a re-
sult of, or arising under, paragraph (1)(A) or
paragraph (10)(B), with respect to a partici-
pant or beneficiary, unless the requirements of
subparagraph (A) are met.
‘‘(C) RECEIPT OF BENEFITS DURING AP-
PEALS PROCESS.—Receipt by the participant or
beneficiary of the benefits involved in the claim
for benefits during the pendency of any admin-
istrative processes referred to in subparagraph
(A) or of any action commenced under this
subsection—
171
‘‘(i) shall not preclude continuation of
all such administrative processes to their
conclusion if so moved by any party, and
‘‘(ii) shall not preclude any liability
under subsection (a)(1)(C) and this sub-
section in connection with such claim.
The court in any action commenced under this
subsection shall take into account any receipt of
benefits during such administrative processes or
such action in determining the amount of the
damages awarded.
‘‘(D) 
ADMISSIBLE.—Any 
determination
made by a reviewer in an administrative pro-
ceeding under section 103 of the Bipartisan Pa-
tient Protection Act shall be admissible in any
Federal court proceeding and shall be presented
to the trier of fact.
‘‘(10) STATUTORY DAMAGES.—
‘‘(A) IN
GENERAL.—The remedies set
forth in this subsection (n) shall be the exclu-
sive remedies for causes of action brought
under this subsection.
‘‘(B) ASSESSMENT OF CIVIL PENALTIES.—
In addition to the remedies provided for in
paragraph (1) (relating to the failure to provide
172
contract benefits in accordance with the plan),
a civil assessment, in an amount not to exceed
$5,000,000, payable to the claimant may be
awarded in any action under such paragraph if
the claimant establishes by clear and convincing
evidence that the alleged conduct carried out by
the defendant demonstrated bad faith and fla-
grant disregard for the rights of the participant
or beneficiary under the plan and was a proxi-
mate cause of the personal injury or death that
is the subject of the claim.
‘‘(11) LIMITATION ON ATTORNEYS’ FEES.—
‘‘(A) IN GENERAL.—Notwithstanding any
other provision of law, or any arrangement,
agreement, or contract regarding an attorney’s
fee, the amount of an attorney’s contingency fee
allowable for a cause of action brought pursu-
ant to this subsection shall not exceed 1⁄3 of the
total amount of the plaintiff’s recovery (not in-
cluding the reimbursement of actual out-of-
pocket expenses of the attorney).
‘‘(B) 
DETERMINATION
BY
DISTRICT
COURT.—The last Federal district court in
which the action was pending upon the final
disposition, including all appeals, of the action
173
shall have jurisdiction to review the attorney’s
fee to ensure that the fee is a reasonable one.
‘‘(12) LIMITATION OF ACTION.—Paragraph (1)
shall not apply in connection with any action com-
menced after 3 years after the later of—
‘‘(A) the date on which the plaintiff first
knew, or reasonably should have known, of the
personal injury or death resulting from the fail-
ure described in paragraph (1), or
‘‘(B) the date as of which the requirements
of paragraph (9) are first met.
‘‘(13) TOLLING
PROVISION.—The statute of
limitations for any cause of action arising under
State law relating to a denial of a claim for benefits
that is the subject of an action brought in Federal
court under this subsection shall be tolled until such
time as the Federal court makes a final disposition,
including all appeals, of whether such claim should
properly be within the jurisdiction of the Federal
court. The tolling period shall be determined by the
applicable Federal or State law, whichever period is
greater.
‘‘(14) PURCHASE OF INSURANCE TO COVER LI-
ABILITY.—Nothing in section 410 shall be construed
to preclude the purchase by a group health plan of
174
insurance to cover any liability or losses arising
under a cause of action under subsection (a)(1)(C)
and this subsection.
‘‘(15) EXCLUSION
OF
DIRECTED
RECORD-
KEEPERS.—
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (C), paragraph (1) shall not apply with
respect to a directed recordkeeper in connection
with a group health plan.
‘‘(B) 
DIRECTED
RECORDKEEPER.—For
purposes of this paragraph, the term ‘directed
recordkeeper’ means, in connection with a
group health plan, a person engaged in directed
recordkeeping activities pursuant to the specific
instructions of the plan or the employer or
other plan sponsor, including the distribution of
enrollment information and distribution of dis-
closure materials under this Act or title I of the
Bipartisan Patient Protection Act and whose
duties do not include making decisions on
claims for benefits.
‘‘(C) 
LIMITATION.—Subparagraph 
(A)
does not apply in connection with any directed
recordkeeper to the extent that the directed rec-
ordkeeper fails to follow the specific instruction
175
of the plan or the employer or other plan spon-
sor.
‘‘(16) EXCLUSION
OF
HEALTH
INSURANCE
AGENTS.—Paragraph (1) does not apply with re-
spect to a person whose sole involvement with the
group health plan is providing advice or administra-
tive services to the employer or other plan sponsor
relating to the selection of health insurance coverage
offered in connection with the plan.
‘‘(17) NO EFFECT ON STATE LAW.—No provi-
sion of State law (as defined in section 514(c)(1))
shall be treated as superseded or otherwise altered,
amended, modified, invalidated, or impaired by rea-
son of the provisions of subsection (a)(1)(C) and this
subsection.
‘‘(18) RELIEF FROM LIABILITY FOR EMPLOYER
OR
OTHER
PLAN
SPONSOR
BY
MEANS
OF
DES-
IGNATED DECISIONMAKER.—
‘‘(A) IN
GENERAL.—Notwithstanding the
direct participation (as defined in paragraph
(5)(C)(i)) of an employer or plan sponsor, in
any case in which there is (or is deemed under
subparagraph (B) to be) a designated decision-
maker under subparagraph (B) that meets the
176
requirements of subsection (o)(1) for an em-
ployer or other plan sponsor—
‘‘(i) all liability of such employer or
plan sponsor involved (and any employee of
such employer or sponsor acting within the
scope of employment) under this sub-
section in connection with any participant
or beneficiary shall be transferred to, and
assumed by, the designated decisionmaker,
and
‘‘(ii) with respect to such liability, the
designated decisionmaker shall be sub-
stituted for the employer or sponsor (or
employee) in the action and may not raise
any defense that the employer or sponsor
(or employee) could not raise if such a de-
cisionmaker were not so deemed.
‘‘(B) AUTOMATIC DESIGNATION.—A health
insurance issuer shall be deemed to be a des-
ignated decisionmaker for purposes of subpara-
graph (A) with respect to the participants and
beneficiaries of an employer or plan sponsor,
whether or not the employer or plan sponsor
makes such a designation, and shall be deemed
to have assumed unconditionally all liability of
245
dividual’, shall include every infant member of the species
homo sapiens who is born alive at any stage of develop-
ment.
‘‘(b) As used in this section, the term ‘born alive’,
with respect to a member of the species homo sapiens,
means the complete expulsion or extraction from his or
her mother of that member, at any stage of development,
who after such expulsion or extraction breathes or has a
beating heart, pulsation of the umbilical cord, or definite
movement of voluntary muscles, regardless of whether the
umbilical cord has been cut, and regardless of whether the
expulsion or extraction occurs as a result of natural or
induced labor, caesarean section, or induced abortion.
‘‘(c) Nothing in this section shall be construed to af-
firm, deny, expand, or contract any legal status or legal
right applicable to any member of the species homo sapi-
ens at any point prior to being born alive as defined in
this section.’’.
(b) CLERICAL AMENDMENT.—The table of sections
at the beginning of chapter 1 of title 1, United States
Code, is amended by adding at the end the following new
item:
‘‘8. ‘Person’, ‘human being’, ‘child’, and ‘individual’ as including born-alive in-
fant.’’.
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