H.R. 7780 — what changed

added “(i) to meet the requirements of subsection (a)(1)(F), (b)(3), (c), or (d) of section 702 or section 701 or 702(b)(1) with respect to genetic information; or

added “(ii) to meet the requirements of subsection (a) of section 712 with respect to parity in mental health and substance use disorder benefits.”

removed “(12) in any case relating to the provision of mental health benefits and substance use disorder benefits under a group health plan or under group health insurance coverage offered by a health insurance issuer in connection with a group health plan (as such terms are defined in section 733), by the Secretary, or by a participant, beneficiary, or fiduciary, to enforce any provision of this title or the terms of the plan or coverage relating to such benefits against a group health plan, a health insurance issuer, a fiduciary of a plan, or any other person that contracts with a group health plan to provide group health insurance coverage or assistance in the administration of a group health plan (including a third party administrator, managed behavioral health organization, and a pharmacy benefit manager), if such person participates in or conceals a violation of any requirement of part 7 relating to such benefits or a wrongful denial of a claim for mental health benefits or substance use disorder benefits under the terms of the plan or coverage, to obtain appropriate relief, in addition to any other relief otherwise available under this section, including—

removed “(A) to recover all losses to participants and beneficiaries;

removed “(B) to reform impermissible plan or coverage terms and policies (as written or in operation) in accordance with the requirements of this title and its implementing regulations; or

removed “(C) to ensure the readjudication of claims and payment of benefits in accordance with the plan or coverage terms without any impermissible limitation, plan or coverage term, or policy.”

“(n)

“(1) In any civil action brought by, or on behalf of, a participant or beneficiary pursuant to this section or with respect to a common law claim involving a plan or plan benefit, notwithstanding any other provision of law—

“(A) no predispute arbitration provision shall be valid or enforceable if it requires arbitration of a matter related to a claim brought under this section;

“(B) no postdispute arbitration provision shall be valid or enforceable unless—

“(i) the provision was not required by any person, obtained by coercion or threat of adverse action, or made a condition of participating in a plan, receiving benefits under a plan, or receiving any other employment, work, or any employment-related or work-related privilege or benefit;

“(ii) each participant or beneficiary agreeing to the provision was informed, through a paper notice, in a manner reasonably calculated to be understood by the average plan participant, of the right of the participant or beneficiary under subparagraph (C) to refuse to agree to the provision without retaliation or threat of retaliation;

“(iii) each participant or beneficiary agreeing to the provision so agreed after a waiting period of not fewer than 45 days, beginning on the date on which the participant or beneficiary was provided both the final text of the provision and the disclosures required under clause (ii); and

“(iv) each participant or beneficiary agreeing to the provision affirmatively consented to the provision in writing;

“(C) no covered provision shall be valid or enforceable, if prior to a dispute to which the covered provision applies, a participant or beneficiary undertakes or promises not to pursue, bring, join, litigate, or support any kind of individual, joint, class, representative, or collective claim available under this section in any forum that, but for such covered provision, is of competent jurisdiction;

“(D) no covered provision shall be valid or enforceable, if after a dispute to which the covered provision applies arises, a participant or beneficiary undertakes or promises not to pursue, bring, join, litigate, or support any kind of individual, joint, class, representative, or collective claim under this section in any forum that, but for such covered provision, is of competent jurisdiction, unless the covered provision meets the requirements of subparagraph (B); and

“(E) no covered provision related to a plan other than a multiemployer plan shall be valid or enforceable that purports to confer discretionary authority to any person with respect to benefit determinations or interpretation of plan language, or to provide a standard of review of such determinations or interpretation by a reviewing court in an action brought under this section that would require anything other than de novo review of such determinations or interpretation.

“(2) In this subsection—

“(A) the term “covered provision” means any document, instrument, or agreement related to a plan or plan benefit, regardless of whether such provision appears in a plan document or in a separate agreement;

changed “(B) the term “predispute arbitration provision” means a covered provision, other than a covered provision that the Secretary finds to be the product of bona fide collective bargaining, that requires a participant or beneficiary to arbitrate a dispute related to the plan or an amendment to the plan that had not yet arisen at the time such provision took effect;

changed “(C) the term “postdispute arbitration provision” means a covered provision, other than a covered provision that the Secretary finds to be the product of bona fide collective bargaining, that requires a participant or beneficiary to arbitrate a dispute related to the plan or an amendment to the plan that arose before the time such provision took effect; and

“(D) the term “retaliation” means any action in violation of section 510.

“(3)

“(A) Any dispute as to whether a covered provision that requires a participant or beneficiary to arbitrate a dispute related to a plan is valid and enforceable shall be determined by a court, rather than an arbitrator, regardless of whether any contractual provision purports to delegate such determinations to the arbitrator and irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement.

“(B) For purposes of this subsection, a dispute shall be considered to arise only when a plaintiff has actual knowledge (within the meaning of such term in section 413) of a breach or violation giving rise to a claim under this section.”