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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. ERISA PREEMPTION NOT TO APPLY TO CER-
TAIN STATE LAW CAUSES OF ACTION. 
(a) IN GENERAL.—Section 514 of the Employee Re-
tirement Income Security Act of 1974 (29 U.S.C. 1144) 
is amended— 
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(1) by redesignating subsections (d) and (e) as 
subsection (e) and (f), respectively, and 
(2) by inserting after subsection (c) the fol-
lowing new subsection: 
‘‘(d) PREEMPTION NOT TO APPLY TO CAUSES OF 
ACTION UNDER STATE LAW INVOLVING MEDICALLY RE-
VIEWABLE DECISION.— 
‘‘(1) IN GENERAL.—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 bene-
ficiary under a group health plan (or the estate of 
such a participant or beneficiary) against the plan, 
the plan sponsor, any health insurance issuer offer-
ing 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 RULES.—For 
purposes of this subsection— 
‘‘(A) 
MEDICALLY
REVIEWABLE
DECI-
SION.—The term ‘medically reviewable decision’ 
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means a denial of a claim for benefits under the 
plan. 
‘‘(B) PERSONAL INJURY.—The term ‘per-
sonal injury’ means a physical injury and in-
cludes an injury arising out of the treatment 
(or failure to treat) a mental illness or disease. 
‘‘(C) CLAIM
FOR
BENEFIT.—The term 
‘claim for benefits’ means any request for cov-
erage (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 BENEFITS.— 
The 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) MANAGED CARE ENTITY.— 
‘‘(i) IN
GENERAL.—The term ‘man-
aged care entity’ means, in connection with 
a group health plan and subject to clause 
(ii), any entity that is involved in deter-
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mining the manner in which or the extent 
to which items or services (or reimburse-
ment therefor) are to be provided as bene-
fits under the plan. 
‘‘(ii) TREATMENT OF TREATING PHY-
SICIANS, OTHER TREATING HEALTH CARE 
PROFESSIONALS, 
AND
TREATING
HOS-
PITALS.—Such term does not include a 
treating physician or other treating health 
care professional of the participant or ben-
eficiary and also does not include a treat-
ing 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 con-
strued 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
EM-
PLOYERS AND PLAN SPONSORS PRECLUDED.— 
Subject to subparagraph (B), paragraph (1) 
does not apply with respect to— 
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‘‘(i) any cause of action against an 
employer or other plan sponsor maintain-
ing 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 em-
ployer 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
PER-
MITTED.—Notwithstanding 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 
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or other plan sponsor (or employee) in the deci-
sion. 
‘‘(C) DIRECT PARTICIPATION.— 
‘‘(i) DIRECT PARTICIPATION IN DECI-
SIONS.—For 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 con-
trol in making such decision or in the con-
duct constituting the failure. 
‘‘(ii) RULES OF CONSTRUCTION.—For 
purposes of clause (i), the employer or plan 
sponsor (or employee) shall not be con-
strued 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 sub-
paragraph (B) on a particular claim for 
benefits of a particular participant or bene-
ficiary, including (but not limited to)— 
‘‘(I) any participation by the em-
ployer or other plan sponsor (or em-
ployee) in the selection of the group 
health plan or health insurance cov-
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erage involved or the third party ad-
ministrator or other agent; 
‘‘(II) any engagement by the em-
ployer or other plan sponsor (or em-
ployee) in any cost-benefit analysis 
undertaken in connection with the se-
lection 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 substan-
tially focused solely on the particular 
situation of the participant or bene-
ficiary 
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.’’. 
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(b) CONFORMING AMENDMENT.—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) EFFECTIVE DATE.—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. 
Æ 
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