Case Information
*2 BEFORE: STAPLETON, ROTH and LEWIS, Circuit Judges
(Opinion Filed June 19, l995 )
Attarah B. Feenane (Argued) Stephen C. Josel Stephen C. Josel & Associates, P.C. 2019 Walnut Street Philadelphia, PA 19103 Attorneys for Appellant in No. 94-1373 Edward S. Wardell (Argued) Jeffrey S. Craig Kelley, Wardell & Craig 41 Grove Street Haddonfield, NJ 08033 and
David F. Simon
U.S. Healthcare, Inc.
P.O. Box 1180
980 Jolly Road
Blue Bell, PA 19422 Attorneys for Appellee U.S. Healthcare, Inc.
in Nos. 94-1373 & 94-1661 Thomas S. Williamson, Jr.
Solicitor of Labor Marc I. Machiz
Assistant Solicitor Plan Benefits Security Division Karen L. Handorf Counsel for Special Litigation G. William Scott (Argued) Trial Attorney
U.S. Department of Labor Office of the Solicitor Plan Benefits Security Division P.O. Box 1914
Washington, D.C. 20013 Attorneys for Amicus Curiae U.S. Secretary of Labor in Nos. 94-1373 & 94-1661 Jeremy D. Mishkin Richard M. Simins Montgomery, McCracken, Walker & Rhoads Three Parkway - 20th Floor *4 Philadelphia, PA 19102 Attorneys for Amicus Curiae New Jersey HMO Association in No. 94-1661 *5 OPINION OF THE COURT
STAPLETON, Circuit Judge:
The plaintiffs in these two cases filed suit in state
court against health maintenance organizations ("HMOs") organized
by U.S. Healthcare, Inc., claiming damages, under various
theories, for injuries arising from the medical malpractice of
HMO-affiliated hospitals and medical personnel. The defendant
HMOs removed both cases to federal court, arguing (1) that the
injured person in each case had obtained medical care as a
benefit from a welfare-benefit plan governed by the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.
§ 1001-1461 (1988), (2) that removal is proper under the
Metropolitan Life Insurance Co. v. Taylor,
We hold that on the record before us, the plaintiffs' claims are not claims "to recover [plan] benefits due . . . under the terms of [the] plan, to enforce . . . rights under the terms *6 of the plan, or to clarify . . . rights to future benefits under the terms of the plan" as those phrases are used in § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). Accordingly, we hold that Metropolitan Life's "complete preemption" exception is inapplicable and that removal of these claims from state court was improper. We will reverse the judgments of the district courts and will remand each case to district court with instructions to remand the cases to the state courts from which they were removed.
I.
A. Suffering from various ailments, Darryl Dukes visited his primary care physician, defendant Dr. William W. Banks, M.D., who identified a problem with Darryl's ears. A few days later, Banks performed surgery and prepared a prescription ordering that blood studies be performed. Darryl presented that prescription to the laboratory of Germantown Hospital and Medical Center but the hospital refused to perform the tests. The record does not reveal the reasons for the hospital's refusal.
The next day, Darryl sought treatment from defendant Dr. Edward B. Hosten, M.D. at the Charles R. Drew Mental Health Center, who also ordered a blood test. This time, the test was performed. Darryl's condition nevertheless continued to worsen and he died shortly thereafter. Darryl's blood sugar level was extremely high at the time of his death. That condition *7 allegedly would have or could have been diagnosed through a timely blood test.
Darryl received his medical treatment through the United States Health Care Systems of Pennsylvania, Inc., a federally qualified health maintenance organization organized by U.S. Healthcare. As a qualified HMO under the federal Health Maintenance Organization Act of 1973, 42 U.S.C. §§ 300e-300e-17 (1988), this U.S. Healthcare HMO provides basic and supplemental health services to its members on a pre-paid basis. [1] As is often the case, Darryl received his membership in the HMO through his participation in an ERISA-covered welfare plan sponsored by his employer.
Darryl's wife, Cecilia Dukes, brought suit in state
court alleging medical malpractice and other negligence against
numerous defendants, including Banks, Hosten, the Germantown
Hospital, and the Drew Center. She also brought suit against the
HMO, alleging that as the organization through which Darryl
received his medical treatment, it was responsible, under a
*8
Pennsylvania state law ostensible agency theory (the "agency
theory"), for the negligence of the various doctors and other
medical-service providers. See Boyd v. Albert Einstein Medical
Ctr.,
The HMO removed the case to district court pursuant to the Metropolitan Life complete-preemption exception to the "well- pleaded complaint rule." In its notice of removal, it claimed that the HMO is part of -- or at least plays a role in -- the ERISA plan to provide health benefits and that Dukes' claims, properly construed, "are directed to the structure and operation of the employer benefit plan." (Dukes app. at 31.) In its view, Dukes' claims therefore "relate to" the welfare plan and accordingly are preempted under ERISA § 514(a), 29 U.S.C.
§ 1144(a).
Dukes moved for a remand and the HMO moved to dismiss.
The district court denied Dukes' motion and granted the HMO's,
explaining that Dukes' claims "related to" an ERISA plan -- and
thus were preempted -- because (1) "any ostensible agency claim
must be made on the basis of what the benefit plan provides and
*9
is therefore 'related' to it" and (2) "the treatment received
must be measured against the benefit plan and is therefore also
'related' to it." Dukes v. United States Health Care Sys., Inc.,
B.
Ronald and Linda Visconti are the biological parents of Serena Visconti, who was stillborn. During the third trimester of her pregnancy with Serena, Linda apparently developed symptoms typical of preeclampsia. The Viscontis claim that Linda's obstetrician, Dr. Wisniewski, negligently ignored these symptoms and that this negligence caused Serena's death.
Like Darryl Dukes, Linda received her medical treatment through a federally qualified HMO organized by U.S. Healthcare. This HMO was called the Health Maintenance Organization of Pennsylvania/New Jersey. The Viscontis received their membership in the HMO through an ERISA-covered welfare plan.
Ronald Visconti, as administrator of Serena's estate, and Ronald and Linda, in their own right (collectively, "the Viscontis"), brought suit in the Philadelphia County Court of Common Pleas. They attempted to hold the HMO liable for Dr. Wisniewski's malpractice under ostensible and actual agency theories, alleging that when Linda became pregnant, the HMO held out Dr. Wisniewski as a competent and qualified participating obstetrician/gynecologist. They also sued the HMO under a direct *10 negligence theory, claiming, among other things, that the HMO was negligent in its selection, employment, and oversight of the medical personnel who performed the actual medical treatment.
The HMO removed the case to federal court, asserting that the Viscontis' claims were completely preempted by ERISA. It then filed a motion to dismiss, and the Viscontis filed a motion to remand, contending that removal was improper and that ERISA did not preempt their state law claims. The district court denied the Viscontis' motion but granted the HMO's motion to dismiss. Visconti ex rel. Visconti v. U.S. Health Care , 857 F.
Supp. 1097, 1105 (E.D. Pa. 1994).
The Visconti and Dukes cases have been consolidated on appeal.
II.
The HMOs removed these cases to federal court pursuant
to 28 U.S.C. § 1441, alleging that the district courts had
original jurisdiction over the claims, because the claims
"[arose] under the Constitution, treaties or laws of the United
States." § 1441(b); 28 U.S.C. § 1331. To determine whether a
claim "arises under" federal law -- and thus is removable -- we
begin with the "well-pleaded complaint rule." See Metropolitan
Life Ins. Co. v. Taylor,
Under the well-pleaded complaint rule, a cause of
action "arises under" federal law, and removal is proper, only if
*11
a federal question is presented on the face of the plaintiff's
properly pleaded complaint. Franchise Tax Bd. v. Construction
Laborers Vacation Trust,
The Supreme Court has recognized an exception to the
well-pleaded complaint rule -- the "complete preemption"
exception -- under which "Congress may so completely pre-empt a
particular area that any civil complaint raising this select
group of claims is necessarily federal in character."
Metropolitan Life,
the pre-emptive force of [the federal statutory provision] is so powerful as to displace entirely any state cause of action [addressed by the federal statute]. Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of [the federal provision].
Franchise Tax Bd. ,
The Supreme Court has determined that Congress intended
the complete-preemption doctrine to apply to state law causes of
action which fit within the scope of ERISA's civil-enforcement
provisions.
[2]
Metropolitan Life,
state common law causes of action asserting improper processing of a claim for benefits under an employee benefit plan are (..continued)
relevant for the purposes of this appeal, § 502(a)(1)(B), states in pertinent part:
(a) Persons empowered to bring a civil action A civil action may be brought -- (1) by a participant or beneficiary -- . . . .
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan . . . .
removable to federal court); Anderson v. Electronic Data Sys.
Corp.,
That the Supreme Court has recognized a limited
exception to the well-pleaded complaint rule for state law claims
which fit within the scope of § 502 by no means implies that all
claims preempted by ERISA are subject to removal. Instead, as
the U. S. Court of Appeals for the Sixth Circuit wrote recently,
"[r]emoval and preemption are two distinct concepts." Warner v.
Ford Motor Co.,
The difference between preemption and complete
preemption is important. When the doctrine of complete
*16
preemption does not apply, but the plaintiff's state claim is
arguably preempted under § 514(a), the district court, being
without removal jurisdiction, cannot resolve the dispute
regarding preemption. It lacks power to do anything other than
remand to the state court where the preemption issue can be
addressed and resolved. Franchise Tax Bd.,
Allstate,
III.
The district courts in these cases found that the plaintiffs' state law claims against the U.S. Healthcare HMOs fall within the scope of § 502(a)(1)(B) and that the Metropolitan Life complete-preemption doctrine therefore permits removal. [3] We disagree.
To determine whether the state law claims fall within the scope of § 502(a)(1)(B), we must determine whether those claims, properly construed, are "to recover benefits due . . . under the terms of [the] plan, to enforce . . . rights under the terms of the plan, or to clarify . . . rights to future benefits under the terms of the plan." In making that determination, it would be helpful to have a complete understanding in each case of the relationships among the HMO, the employer, and the other *17 defendants, the nature of the plan benefits, and the rights of participants and beneficiaries under the plan. We are somewhat hampered here because these cases come to us on appeal from orders granting motions to dismiss. Because of this procedural status, the parties have had little chance to develop the records and, accordingly, we know very little about the nature of the plan benefits or about the role -- if any -- that U.S.
Healthcare's HMOs play in the respective ERISA welfare plans.
We recognize that there are issues in dispute. The plaintiffs and the Department of Labor as amicus curie, for example, claim that the U.S. Healthcare HMOs are separate from the ERISA plans and that the sole benefit that participants and beneficiaries receive from each plan is the plaintiffs' membership in the HMOs. In their view, the plaintiffs' claims thus have nothing at all to do with § 502(a)(1)(B) because no one contests that the plaintiffs in fact have received their plan benefits (their membership in the HMO). Instead, under their view, the plaintiffs' claims merely attack the behavior of an entity completely external to the ERISA plan.
U.S. Healthcare, on the other hand, claims that the plan benefits are more than just the plan participants' or beneficiaries' memberships in the respective HMOs; it argues that the medical care received is itself the plan benefit. As a corollary to that position, it also disagrees with the plaintiffs' view that the HMOs are completely distinct from the respective ERISA plans, arguing that the HMOs in fact play a role in the delivery of plan benefits. It further maintains that *18 ERISA is implicated because both the plaintiffs' agency claims and their direct negligence claims relate to the quality of the plan benefits and the HMOs' role as the entity that arranges for those benefits for the ERISA plans.
We need not here resolve these disputes about how to characterize the plan benefits or the HMOs' role in the respective ERISA plans. We will assume, without deciding, that the medical care provided (and not merely the plaintiffs' memberships in the respective HMOs) is the plan benefit for the purposes of ERISA. We will also assume that the HMOs, either as a part of or on behalf of the ERISA plans, arrange for the delivery of those plan benefits. We thus assume, for example, that removal jurisdiction would exist if the plaintiffs were alleging that the HMOs refused to provide the services to which membership entitled them.
Given those assumptions, we nevertheless conclude that removal was improper. We are compelled to this conclusion because the plaintiffs' claims, even when construed as U.S. Healthcare suggests, merely attack the quality of the benefits they received: The plaintiffs here simply do not claim that the plans erroneously withheld benefits due. Nor do they ask the state courts to enforce their rights under the terms of their respective plans or to clarify their rights to future benefits. As a result, the plaintiffs' claims fall outside of the scope of § 502(a)(1)(B) and these cases must be remanded to the state courts from which they were removed.
A.
Nothing in the complaints indicates that the plaintiffs are complaining about their ERISA welfare plans' failure to provide benefits due under the plan. Dukes does not allege, for example, that the Germantown Hospital refused to perform blood studies on Darryl because the ERISA plan refused to pay for those studies. Similarly, the Viscontis do not contend that Serena's death was due to their welfare plan's refusal to pay for or otherwise provide for medical services. Instead of claiming that the welfare plans in any way withheld some quantum of plan benefits due, the plaintiffs in both cases complain about the low quality of the medical treatment that they actually received and argue that the U.S. Healthcare HMO should be held liable under agency and negligence principles.
We are confident that a claim about the quality of a
benefit received is not a claim under § 502(a)(1)(B) to "recover
benefits due . . . under the terms of [the] plan." To reach that
conclusion, "we begin as we do in any exercise of statutory
construction with the text of the provision in question, and move
on, as need be, to the structure and purpose of the Act in which
it occurs." New York State Conference of Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., Nos. 93-1408, 93-1414, 93-
1415,
The text lends no support to U.S. Healthcare's
argument. On its face, a suit "to recover benefits due . . . under the terms of [the] plan" is concerned exclusively with whether or not the benefits due under the plan were actually *20 provided. The statute simply says nothing about the quality of benefits received.
Nor does anything in the legislative history,
structure, or purpose of ERISA suggest that Congress viewed
§ 502(a)(1)(B) as creating a remedy for a participant injured by
medical malpractice. When Congress enacted ERISA it was
concerned in large part with the various mechanisms and
institutions involved in the funding and payment of plan
benefits. That is, Congress was concerned "that owing to the
inadequacy of current minimum [financial and administrative]
standards, the soundness and stability of plans with respect to
adequate funds to pay promised benefits may be endangered." § 2,
29 U.S.C. § 1001(a). Thus, Congress sought to assure that
promised benefits would be available when plan participants had
need of them and § 502 was intended to provide each individual
participant with a remedy in the event that promises made by the
plan were not kept. We find nothing in the legislative history
suggesting that § 502 was intended as a part of a federal scheme
to control the quality of the benefits received by plan
participants. Quality control of benefits, such as the health
care benefits provided here, is a field traditionally occupied by
state regulation and we interpret the silence of Congress as
reflecting an intent that it remain such. See, e.g., Travelers
Ins. Co.,
B.
We also reject the HMOs' attempts to characterize the plaintiffs' state court complaints as attempts to enforce their "rights under the terms of the [respective welfare] plan[s]." That phrase is included, we believe, so as to provide a means of enforcing any contract rights other than the right to benefits, as for example the various plan-created rights of plan participants to benefit-claim and benefit-eligibility procedures. Just as § 502(a)(1)(B) provides the means by which a participant can insist on the promised benefits, so too does it provide the means for insisting on the plan-created rights other than plan benefits. [4]
*22 The HMOs point to no plan-created right implicated by the plaintiffs' state law medical malpractice claims. The best they can do is assert that the plaintiffs' medical malpractice claims "attempt to define a participant's rights under the plan." (Appellee's bf. in Visconti, at 9.) We cannot accept that characterization. The plaintiffs are not attempting to define new "rights under the terms of the plan"; instead, they are attempting to assert their already-existing rights under the generally-applicable state law of agency and tort. Inherent in the phrases "rights under the terms of the plan" and "benefits due . . . under the terms of [the] plan" is the notion that the plan participants and beneficiaries will receive something to which they would not be otherwise entitled. But patients enjoy the right to be free from medical malpractice regardless of (..continued)
other things, that plan participants will receive membership "in one or more qualified health maintenance organizations," § 2520.102-5(b)(1), and that upon request each available HMO will provide certain written information, namely
(i) the nature of services provided to members; (ii) conditions pertaining to eligibility to receive such services (other than general conditions pertaining to eligibility for participation in the plan) and circumstances under which services may be denied; and (iii) the procedures to be followed in obtaining such services, and the procedures available for the review of claims for services which are denied in whole or in part.
§ 2520.102-5(b)(3).
whether or not their medical care is provided through an ERISA plan.
C.
Much of the above analysis also precludes us from concluding that the plaintiffs are asking the state courts to "clarify [their] rights to future benefits under the terms of the plan." As noted, there is no allegation here that the HMOs have withheld plan benefits due. Moreover, nothing in the complaints remotely resembles a request that the court clarify a right to a future benefit; instead, the plaintiffs' complaints center on past events.
D.
We recognize that the distinction between the quantity of benefits due under a welfare plan and the quality of those benefits will not always be clear in situations like this where the benefit contracted for is health care services rather than money to pay for such services. There well may be cases in which the quality of a patient's medical care or the skills of the personnel provided to administer that care will be so low that the treatment received simply will not qualify as health care at all. In such a case, it well may be appropriate to conclude that the plan participant or beneficiary has been denied benefits due under the plan. This is not such a case, however. While the Dukes complaint alleges that the Germantown Hospital committed malpractice when it decided not to perform certain blood tests, *24 no one would conclude from that malpractice that Germantown Hospital was not acting as a health care provider when it made those decisions. Similarly, while the Viscontis claim that Dr. Wisniewski was incompetent, there is no indication that he was not performing health care services at the time he allegedly committed the malpractice charged.
We also recognize the possibility that an ERISA plan may describe a benefit in terms that can accurately be described as related to the quality of the service. Thus, for example, a plan might promise that all X-rays would be analyzed by radiologists with a prescribed level of advanced training. A plan participant whose X-ray was analyzed by a physician with less than the prescribed training might well be entitled to enforce the plan's promise through a suit under § 502(a)(1)(B) to secure a denied benefit.
Much of the HMOs' argument in these cases is at root a
contention that the employer and the HMO impliedly contracted
that the health care services provided would be of acceptable
quality and, accordingly, that these damage suits rest on a
failure to provide services of acceptable quality. Since we do
not have before us the documents reflecting the agreements
between the employers and the HMOs, we are not in a position to
determine whether such a commitment was implicit in their
respective agreements. However, the burden of establishing
removal jurisdiction rests with the defendant. Abels v. State
Farm Fire & Cas. Co.,
Moreover, we hasten to add that while we have no doubt that all concerned expected the medical services arranged for by the HMOs to be of acceptable quality, this seems to us beside the point. The relevant inquiry is not whether there was an expectation of acceptably competent services, but rather whether there was an agreement to displace the quality standard found in the otherwise applicable law with a contract standard.
It may well be that an employer and an HMO could agree that a quality of health care standard articulated in their contract would replace the standards that would otherwise be supplied by the applicable state law of tort. We express no view on whether an ERISA plan sponsor may thus by contract opt out of state tort law and into a federal law of ERISA contract. We will reserve that issue until a case arises presenting it. [5] Nothing in this record suggests an agreement to displace the otherwise applicable state laws of agency and tort.
IV.
*26
The HMOs take heart in a recent case, Corcoran v.
United Healthcare, Inc.,
Corcoran began as a state law wrongful death action against Blue Cross and Blue Shield of Alabama ("Blue Cross") and United Heathcare ("United"), in which Florence Corcoran charged that the defendants were responsible for the death of her unborn fetus. An employee at South Central Bell Telephone, Corcoran was a member of Bell's Medical Assistance Plan ("the Bell Plan"), a self-funded welfare-benefit plan which provides medical benefits to eligible Bell employees. The Bell Plan was administered by Blue Cross.
One provision of the plan, the "Quality Care Program" ("QCP") required plan participants and beneficiaries to obtain advance approval for certain medical procedures and overnight hospital visits. Such cost-containment programs typically are known as "utilization review" or "pre-certification review" programs. Under the QCP, once a patient's doctor recommended *27 surgery or hospitalization, the staff assigned to the QCP was required to perform an independent review of the patient's condition to determine both the need for the surgery and the appropriate length of hospitalization. As is often the case, the Bell Plan hired a third party -- United -- to perform the QCP for the Plan. See generally Susan J. Stayn, Note, Securing Access to Care in Health Maintenance Organizations: Toward a Uniform Model of Grievance and Appeal Procedures, 94 Colum. L. Rev. 1694, 1677- 83 (1994).
Corcoran's doctor, in response to difficulties Corcoran was experiencing with her pregnancy, recommended that Corcoran be hospitalized. As a result, Corcoran applied to the Bell Plan for disability benefits for the remainder of her pregnancy. Despite the recommendation of Corcoran's doctor, United determined that hospitalization was unnecessary, and instead authorized only 10 hours a day of home nursing care. The fetus went into distress and died during a period of time when the nurse assigned to Corcoran was not on duty. Corcoran subsequently filed suit in Louisiana state court against Blue Cross and United.
United removed the case to federal district court, claiming that Corcoran's claims were completely preempted by ERISA. The district court then granted United's motion to dismiss and Corcoran appealed.
The U.S. Court of Appeals for the Fifth Circuit ruled
that ERISA preempted Corcoran's claim against United and --
implicitly, at least -- that Corcoran's claims were completely
preempted. It explained that while United was in fact giving
*28
medical advice, it gave that advice as part of its role of making
benefit determinations for the plan.
The HMOs argue that we should read Corcoran broadly to
hold that medical malpractice claims against an HMO should be
removable under Metropolitan Life whenever an HMO provides the
complained-about medical treatment as a benefit of an ERISA-
covered health plan. They note that several district courts have
adopted versions of their suggested approach. See, e.g., Ricci
v. Gooberman,
The HMOs' reliance on Corcoran is misplaced. Although
United's decisions in Corcoran were in part medical decisions,
United, unlike the HMOs here, did not provide, arrange for, or
supervise the doctors who provided the actual medical treatment
for plan participants. (Blue Cross played that role in
Corcoran.) Instead, United only performed an administrative
function inherent in the "utilization review." The difference
between the "utilization review" and the "arranging for medical
treatment" roles is crucial for the purposes of § 502(a)(1)(B)
because only in a utilization-review role is an entity in a
*30
position to deny benefits due under an ERISA welfare plan.
[6]
965
F.2d at 1333 n.16 (noting that ERISA is implicated in
"utilization review" decisions but not medical-treatment
decisions because only the former are "made in connection with a
cost containment plan"); see also Kuhl,
In these cases, the defendant HMOs play two roles, not just one. [7] In addition to the utilization-review role played by United in Corcoran, the HMOs also arrange for the actual medical treatment for plan participants. Only this second role is relevant for this appeal, however: on the faces of these complaints there is no allegation that the HMOs somehow should be held liable for any decisions they might have made while acting *31 in their utilization-review roles. [8] Stated another way, unlike Corcoran, there is no allegation here that the HMOs denied anyone any benefits that they were due under the plan. Instead, the plaintiffs here are attempting to hold the HMOs liable for their role as the arrangers of their decedents' medical treatment.
For this reason, these cases are more like Lupo v.
Human Affairs Int'l, Inc.,
V.
For the foregoing reasons, the district courts'
judgments in these cases will be reversed and remanded with instructions to remand the cases to the state courts from which they came. Our holding that the districts courts lack removal jurisdiction, of course, leaves open for resolution by the state courts the issue of whether the plaintiffs' claims are preempted under § 514(a).
Notes
[1] . HMOs often contain costs through a strategy known as
"utilization review." See generally John D. Blum, An Analysis of
Legal Liability in Health Care Utilization Review and Case
Management, 26 Hous. L. Rev. 191, 192-93 (1989); Susan J. Stayn,
Note, Securing Access to Care in Health Maintenance
Organizations: Toward a Uniform Model of Grievance and Appeal
Procedures, 94 Colum. L. Rev. 1674, 1677-83 (1994). Unlike
traditional insurance policies, HMOs usually decide whether to
reimburse patients for medical care prospectively -- through
utilization or "pre-certification" review. The HMO may either
perform the utilization review itself or assign the task to a
third-party contractor. Id. at 1681; see also Corcoran v. United
Healthcare, Inc.,
[2] . ERISA's "six carefully integrated civil enforcement provisions" are found in § 502. Massachusetts Mut. Life Ins. Co. v. Russell,473 U.S. 134 , 146 (1985). The statutory provision
[3] . There is no contention that the plaintiffs' state law claims implicate any of ERISA's civil enforcement provisions other than those set out in § 502(a)(1)(B). Accordingly, we direct our discussion to whether the plaintiffs' claims fall within the scope of § 502(a)(1)(B).
[4] . ERISA ordinarily requires that welfare plans set out a description of the rights of the participants and their beneficiaries in a summary plan description ("SPD"). 29 U.S.C. § 1022(b); see also 29 C.F.R. § 2520.102-2(a) (the plan description must "apprise the plan's participants and beneficiaries of their rights and obligations under the plan"); 29 C.F.R. § 2520.102-3(j)(2) (SPD for an ERISA welfare plan must include "a statement of the conditions pertaining to eligibility to receive benefits"); 29 C.F.R. § 250.102-3(l) (SPD must include "a statement clearly identifying circumstances which may result in disqualification, ineligibility, or denial, loss, forfeiture or suspension of any benefits"); 29 C.F.R. § 102-3(s) (SPD must include a statement describing "[t]he procedures to be followed in presenting claims for benefits under the plan and the remedies available under the plan for the redress of claims which are denied in whole or in part"). That requirement is relaxed in situations where the ERISA plan chooses to provide benefits through a qualified HMO. Under 29 C.F.R. § 2520.102-5(a), if health benefits are provided through an HMO, the SPD need not contain the usual description of the rights of participants or beneficiaries, provided the SPD contains a notice stating, among
[5] . It would seem to Judge Roth that, if a plan were to adopt its own standard of acceptable health care to be made available to beneficiaries, the plan should provide concurrently, through insurance or otherwise, an appropriate remedy to beneficiaries for any failure of the plan care providers to meet that standard or, in the alternative, should inform plan beneficiaries that tort law remedies for medical malpratice would not be available to them under the plan.
[6] . As noted in Part III, we are assuming, without deciding, that the medical care provided (and not merely the plaintiffs' memberships in the respective HMOs) is the plan benefit for the purposes of ERISA. So viewed, when acting in their utilization- review role, the HMOs are making benefit determinations.
[7] . There is nothing unusual about this. HMOs often arrange for the medical treatment and perform the utilization review (instead of hiring a third party). See, e.g., Elsesser, 802 F. Supp. at 1290-91 (HMO playing both roles); see also Stayn, supra, at 1677.
[8] . The only possible exception is Dukes' allegation that the Germantown Hospital refused to perform blood studies on Darryl. Still, on the record before the court, there is no indication that the hospital refused to perform those studies because of the ERISA plan's refusal to pay.