398
Thomas, J., dissenting
effectively provides for a second opinion to better ensure sound medical practice is simply irrelevant to the question whether it, in fact, provides a binding mechanism for a participant or beneficiary to pursue a claim for benefits because it is on this latter basis that § 4-10 is pre-empted.
The Court's attempt to diminish § 4-10's effect by characterizing it as one where "the reviewer's determination would presumably replace that of the HMO," ante, at 380 (emphasis added), is puzzling given that the statute makes such a determination conclusive and the Court of Appeals treated it as a binding adjudication. For these same reasons, it is troubling that the Court views the review under § 4-10 as nothing more than a practice "of obtaining a second [medical] opinion." Ante, at 383. The independent reviewer may, like most arbitrators, possess special expertise or knowledge in the area subject to arbitration. But while a second medical opinion is nothing more than that—an opinion—a determination under § 4-10 is a conclusive determination with respect to the award of benefits. And the Court's reference to Pegram v. Herdrich, 530 U. S. 211 (2000), as support for its Alice in Wonderland-like claim that the § 4-10 proceeding is "far removed from any notion of an enforcement scheme," ante, at 383, is equally perplexing, given that the treatment is long over and the issue presented is purely an eligibility decision with respect to reimbursement.7
7 I also disagree with the Court's suggestion that, following Pegram v. Herdrich, 530 U. S. 211 (2000), HMOs are exempted from ERISA whenever a coverage or reimbursement decision relies in any respect on medical judgment. Ante, at 383, 386, n. 17. Pegram decided the limited question whether relief was available under § 1109 for claims of fiduciary breach against HMOs based on its physicians' medical decisions. Quite sensibly, in my view, that question was answered in the negative because otherwise, "for all practical purposes, every claim of fiduciary breach by an HMO physician making a mixed decision would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians." 530 U. S., at 235.
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