Full opinion text
GILMORE, District Judge. ORDER Pending before the Court are Defendants’ motion to dismiss, which has been converted into a motion for summary judgment, (Instrument No. 10), and Plaintiffs’ motion for summary judgment, (Instrument No. 20). Based on the parties’ submissions and the applicable law, the Court finds that Defendants’ and Plaintiffs’ motions should be GRANTED in PART and DENIED in PART. I. Background Plaintiffs Corporate Health Insurance, Inc., Aetna Health Plans of Texas, Inc., Aet-na Health Plans of North Texas, Inc., and Aetna Life Insurance Company bring this action against Defendants Texas Department of Insurance (the “Department”) and Elton Bomer (“Bomer”), Commissioner of the Texas Department of Insurance, and Dan Morales (“Morales”), Attorney General of the state of Texas, in their official capacities, seeking declaratory and injunctive relief. Plaintiffs request a declaration that Texas Senate Bill 386, the Health Care Liability Act (the “Act”), codified as Tex. Civ. Prao. & Rem. Code ANN. §§ 88.001-88.003 (West 1998), and which adds or amends Tex. Ins. Code ANN. arts. 20A.09, 20A.12, 20A.12A, 21.58A, and 21.58C (West 1998), is preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.A. § 1001 et seq. (West 1985 & Supp.1998), and by the Federal Employees Health Benefit Act (“FEHBA”), 5 U.S.C.A. § 8901 et seq. (West 1967 & Supp.1996). Plaintiffs also seek, if necessary, to enjoin the enforcement of the Act as it relates to employee benefit plans covered by ERISA and FEHBA. The Act allows an individual to sue a health insurance carrier, health maintenance organization, or other managed care entity for damages proximately caused by the entity’s failure to exercise ordinary care when ’ making a health care treatment decision. Tex. Civ. PhaC. & Rem. Code Ann. § 88.002(a) (West 1998). In addition, under the Act, these entities may be held liable for substandard health care treatment decisions made by them employees, agents, or representatives. Id. § 88.002(b). The Act also establishes an independent review' process for adverse benefit determinations and requires an insured or enrollee to submit his or her claim challenging an adverse benefit determination to a review by an independent review organization if such a review is requested by the managed care entity. Id. § 88.003(e). Additional responsibilities for HMOs and further requirements concerning the review of an adverse benefit determination by an independent review organization are also addressed by the Act. See Tex. Ins. Code Ann. arts. 20A.09, 20A.12, 20A.12A, 21.58A, and 21.58C (West 1998). On July 21, 1997, Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and to dismiss Plaintiffs’ suit against the Department and Bomer as improper parties. Defendants argue that dismissal is appropriate for the following reasons: Senate Bill 386 regulates the quality of care provided by the HMO[s] operating in Texas. ERISA and FEHBA, in contrast, govern what types of regulations may be placed on an employee benefit plan. The plain meaning of the statute shows that the purpose of Senate Bill 386 is to prevent health plans from escaping liability for the medical decisions they “make,” “control” or “influence.” Senate Bill 386 does not seek to regulate how HMO’s make benefit or coverage determinations; nor does it proscribe requirements governing the structure of a benefit plan. Accordingly, the ERISA and FEHBA preemption clauses do not apply to Senate Bill 386. (Defendants’ Summary of Argument, Instrument No. 25 at 1). If the Court were to determine that certain provisions of the Act relate to employee welfare benefit plans, Defendants ask this Court to sever any “non-liability” provisions of the Act that it finds to be preempted, saving the valid quality of care liability provisions. (Defendants’ Reply, Instrument No. 24 at 8 n. 3). Defendants also contend that the Eleventh Amendment bars suit against both the Texas Department of Insurance and Bomer because the state of Texas is immune from suit. Furthermore, according to Defendants, there is “a real question” as to whether Elton Bomer is a proper party given the Plaintiffs’ allegations in their complaint. (Defendants’ Brief, Instrument No. 11 at 38 n. 37). On July 29, 1997, Plaintiffs filed a motion for summary judgment/ contending that the Act “impermissibly interferes with the purpose, structure and balance of ERISA and FEHBA, thereby injecting state law into an area exclusively reserved for Congress.” (Plaintiffs’ Summary of Argument, Instrument No. 21 at 1). Plaintiffs contend that the language in the Act expressly “refers to” ERISA plans, and that the Act has a connection with ERISA plans because it purports to impose state law liability on ERISA entities and to mandate the structure of plan benefits and their administration. Plaintiffs also maintain that the Act wrongfully binds employers and plan administrators to particular choices and impermissibly creates an alternate enforcement mechanism. On April 24,1998, the Court held a hearing on Defendants’ motion to dismiss and Plaintiffs’ motion for summary judgment. At the hearing, the Court informed the parties that Defendants’ motion to dismiss would be converted into a motion for summary judgment. Then, on May 15, 1998, Plaintiffs filed their First Amended Complaint for Declaratory Judgment and Permanent Injunction, adding Morales as a defendant in this case. II. 12(b)(6) Motion to Dismiss Standard of Review Rule 12(b)(6) allows for dismissal if a plaintiff fails “to state a claim upon which relief may be granted[.]” Fed. R. Crv. P. 12(b)(6). Such dismissals, however, are rare, Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir.1986), and only granted where “it appears beyond- doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Dismissal can be based either on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. 851 F.Supp. 254, 259 (N.D.Tex.1994). In determining whether a dismissal is warranted pursuant to Rule 12(b)(6), the Court accepts as true all allegations contained in the plaintiffs complaint. Gargiul v. Tompkins, 704 F.2d 661, 663 (2d Cir.1983), vacated on other grounds, 465 U.S. 1016, 104 S.Ct. 1263, 79 L.Ed.2d 670 (1984); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982). In addition, all reasonable inferences are to be drawn in favor of the plaintiffs claims. Kaiser Aluminum, 677 F.2d at 1050. “To qualify for dismissal under Rule 12(b)(6), a complaint must on its face show a bar to relief.” Clark, 794 F.2d at 970. If the court, in its discretion, accepts for consideration matters that are beyond the pleadings then the motion to dismiss is converted into a motion for summary judgment under Rule 12(b). Rule 12(b) states, in pertinent part, that: [i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.... Fed. R. Civ. P. 12(b). A court is more likely to consider matters outside the pleadings if the “ ‘extra-leading material is comprehensive and will enable a rational determination of a summary judgment motion[.]’ ” Isquith for and on Behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 193 n. 3 (5th Cir.1988) (quoting 5 Chaeles A Wright & Arthur R. Miller, Federal PRACTICE And Procedure § 1366 (1969)). However, the Court is unlikely to do so when it is scanty, incomplete, or inconclusive. Id. The court must give all parties notice of such a conversion and provide them with an opportunity both to be heard and to present further materials in support of their positions on the motion. Nowlin v. Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir.1994). Following conversion, the court should permit the parties to engage in discovery as appropriate before ruling on the converted motion. Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir.1990). In this case, having-received for consideration matters that are beyond the pleadings of the parties such as affidavits, contracts for health benefit plans, and statistical data, the Court will convert Defendants’ motion to dismiss into a motion for summary judgment. Given that Plaintiffs subsequently filed a motion for summary judgment on the same issues, Plaintiffs have received ample notice that the ease may be decided at this stage on the merits. Furthermore, at the motions hearing held on April 24, 1998, the Court informed the parties of its intention to convert Defendants’ motion into a motion for summary judgment. The parties also had an additional opportunity to be heard at the hearing and to present any additional evidence'. Thus, both parties had sufficient notice of the conversion. III. Summary Judgment Standard Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Crv. P. 56. A fact is •“material” if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. If the evidence rebutting the motion for summary judgment is only colorable or not significantly probative, summary judgment should be granted. Id. at 249-50, 106 S.Ct. at 2511; see Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1088 (5th Cir.1990). Under Rule 56(c) of the Federal Rules of Civil Procedure, the moving party bears the initial burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial and for identifying those portions of the record that demonstrate such absence. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987). Where the moving party has met its Rule 56(e) burden, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts ... [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting Fed. R. Civ. P. 56(e)) (emphasis in original); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Leonard, 828 F.2d at 294. To sustain the burden, the nonmoving party must produce evidence admissible at trial. Anderson, 477 U.S. at 255, 106 S.Ct. at 2514; Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992) (“To avoid a summary judgment, the nonmoving party must adduce admissible evidence which creates a fact issue ...”). IV. Improper Parties Defendants argue that the Department and Bomer are improper parties to this suit. (Defendants’ Motion, Instrument No. 10 at 10; Defendants’ Reply, Instrument No. 24 at 10). First, Defendants contend that the Eleventh Amendment bars suit against both parties. The Eleventh Amendment provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subject of any foreign state.” U.S.Const. amend. XI. In addition, the Eleventh Amendment “bars suit against a state entity ... regardless of whether money damages or injunctive relief is sought. In determining whether an entity is entitled to ... immunity, [the court] ... ‘must examine the particular entity in question and its powers and characteristics as created by state law....’” Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir.1986) (quoting Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 727 (5th Cir.1982)). Several factors are considered in determining whether an agency is an arm of the state including: (1) whether state statutes and case law view the agency as an arm of the state; (2) the source of the entity’s funding; (3) whether the entity is concerned with local or statewide problems; (4) the degree of the agency’s authority which is independent from the state; (5) whether the entity can sue and be sued in its own name; and. (6) whether it has the right to hold and use property. Guidry, 799 F.2d at 186-87. “Positive answers to the latter two inquiries mitigate against an entity’s being an alter ego of the State and thus against Eleventh Amendment immunity.” Correa v. City of Bay City, 981 F.Supp. 477, 479 (S.D.Tex.1997). The Department is clearly a state agency, created by the laws of the state of Texas. See Tex. Ins. Code Ann. art. 1.01 et seq. (West 1998); El Paso Elec. Co. v. Texas Dep’t of Ins., 937 S.W.2d 432, 434 (Tex.1996). Its primary responsibility is “to regulate the business of insurance in this state.” Tex. Ins. Code Ann. art. 1.01 A (West 1998). The Department is in the executive branch of the state government, and is controlled by an executive officer, the Commissioner, who is appointed by the Department with the advice and consent of the Senate of Texas. Id. art. 1.09. Several members of the Department, such as deputies, assistants, and other personnel, are appointed by the Commissioner. Id. art. 1.02. All of the above factors favor a finding that the Department is an arm of the State of Texas and therefore entitled to Eleventh Amendment immunity. See Correa, 981 F.Supp. at 479. Consequently, the Court DISMISSES the Department from this lawsuit. With respect to state officials, “‘a gaping hole in the shield of sovereign immunity created by the [Eleventh [AJmendment and the Supreme Court’ is the doctrine” of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Saltz v. Tennessee Dep’t of Employment Sec., 976 F.2d 966, 968 (5th Cir.1992) (quoting Brennan v. Stewart, 834 F.2d 1248, 1252 (1988)). Under the Ex Parte Young doctrine, “a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury.” Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979). “The essential ingredients of the Ex Parte Young doctrine are that a suit must be brought against individual persons in their official capacities as agents of the state and the relief sought must be declaratory or injunc-tive in nature and prospective in effect.” Saltz, 976 F.2d at 968 (footnote omitted); see also CIGNA Healthplan of La. v. State of Louisiana, 82 F.3d 642, 644 n. 1 (5th Cir.1996) (recognizing “the federal courts have jurisdiction to hear suits against state officials where, as here, the plaintiffs seek only prospective declaratory or injunctive relief to prevent a continuing violation of federal law”). In this ease, Plaintiffs have sued Bomer in his official capacity and also seek prospective injunctive relief, not monetary damages. Therefore, Defendants’ argument that suit against Bomer is barred by the Eleventh Amendment fails. Second, Defendants argue that “[tjhere may be a real question whether Commissioner Bomer is a proper party” based on the Plaintiffs’ allegations in their complaint. (Defendants’ Brief, Instrument No. 11 at 38 n. 37). According to Defendants, Plaintiffs’ “only allegation ... [regarding Bomer’s] official administrative capacity ... [concerns] his responsibility for enforcing state insurance law. The only role for the Commissioner in Senate Bill 386 is to approve IROs (independent review organization) and it is very unclear whether ... [Plaintiffs are] alleging [that] the IRO procedures are preempted.” (Id. at 38 n. 37). In response, Plaintiffs maintain that Bomer is a proper party to this suit because as the Commissioner, Bomer “is responsible for ensuring compliance with ... the establishment and supervision of independent review organizations.” (Plaintiffs’ Motion, Instrument No. 20 at 5). The Court agrees with Plaintiffs’ contention. Clearly, Plaintiffs contest the inclusion of the IRO provisions in the Act. In particular, Plaintiffs state that the “IRO procedure improperly affects the administration of employee benefit plans, and is therefore an unwarranted extension into an area governed by ERISA.... As such, either directly or indirectly, HMOs and PPOs will incur costs in connection with the establishment of IROs under the Act, thereby also supporting a finding of preemption.” (Plaintiffs’ Motion, Instrument No. 20 at 17 n. 17). Plaintiffs elaborated on this position at the hearing held on April 24, 1998. (Transcript, Instrument No. 60 at 21). Furthermore, Defendants concede that Bomer, as the Commissioner, is responsible for approving the IRO procedure. (Defendants’ Brief, Instrument No. 11 at 38 n. 37). Moreover, Defendants do not provide the Court with any authority for their proposition that Bomer is an improper party to this suit. On the contrary, the Commissioner of the Texas Board of Insurance has been named as a defendant in other cases similar to the instant ease. See NGS Am., Inc. v. Barnes, 998 F.2d 296 (5th Cir.1993) (enjoining the Commissioner of Insurance for the state of Texas from enforcing a Texas statute that was preempted by ERISA); E-Systems, Inc. v. Pogue, 929 F.2d 1100 (5th Cir.1991) (holding that the Texas Administrative Services Tax Act was preempted by ERISA and enjoining the Commissioner of Insurance from collecting the tax); Texas Commerce Bancshares, Inc. v. Barnes, 798 F.Supp. 1286 (W.D.Tex.1992) (examining plaintiffs award of attorney fees and costs in ERISA preemption action filed against the Commissioner of Insurance). Consequently, given Bomer’s role with the IRO procedure and other cases where the Commissioner has been named as a defendant, the Court finds that Bomer is a proper party to this suit. V. Insurance Savings Clause Plaintiffs claim that the Act is preempted by ERISA. Thus, as an initial matter, the Court will examine whether the Act is saved from preemption by ERISA’s insurance savings clause. ERISA provides that “nothing in this title shall be construed to exempt or reheve any person from any law of any State which regulates insurance, banking or securities.” 29 U.S.C.A. § 1144(b)(2)(a) (West 1985) (emphasis added). The Supreme Court “delineated the requirements that a state statute must meet in order to come within the insurance facet of the savings clause” in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 741-47, 105 S.Ct. 2380, 2389-93, 85 L.Ed.2d 728 (1985). The Supreme Court in Metropolitan Life took the following conjunctive two-step approach: First, the [C]ourt determined whether the statute in question fitted the common sense definition of insurance regulation. Second, it looked at' three factors: (1)[w]hether the practice (the statute) has the effect of spreading policyholders’ risk; (2) whether the practice is an integral part of the policy relationship between the insurer and the insured; and (3) whether the practice is limited to entities within the insurance industry. If the statute fitted the common sense definition of insurance regulation and the court answered “yes” to each of the questions in the three part test, then the statute fell within the savings clause exempting it from ERISA preemption. Tingle v. Pacific Mut., Ins. Co., 996 F.2d 105, 107 (5th Cir.1993) (footnote omitted) (emphasis added). Therefore, “if a statute fails either to fit the common sense definition of insurance regulation or to satisfy any one element of the three-factor Metropolitan Life test, then the statute is not exempt from preemption by the ERISA insurance savings clause.” CIGNA, 82 F.3d at 650. When the Court begins to apply this test to the Act, it can both start and finish its analysis with the third factor of the Metropolitan Life test: on its face, the Act is obviously not “limited to entities within the insurance industry.” Even though the Act lists health insurance carriers as one group covered by its terms, it also specifies that it applies to health maintenance organizations or other managed care entities for a health care plan. • Tex. Civ. PRAC. & Rem. Code Ann. § 88.002(a) (West 1998). As the Act fails to meet the third factor of the Metropolitan Life test, the Court finds that the statute is not saved from preemption by the insurance exception of Section 514(b) of ERISA. See CIGNA, 82 F.3d at 650 (holding that Louisiana’s Any Willing Provider statute was not exempt from preemption by ERISA’s savings clause because the statute was not limited to entities within the insurance industry). VI. ERISA Preemption Having determined that the Act is not saved by the insurance savings clause, the Court must next examine whether the Act is preempted by Section 514(a) of ERISA. Section 514(a) governs the preemption of state laws by ERISA. More specifically, Section 514(a) provides that ERISA “shall supersede any and all State laws insofar as they ... relate to any employee benefit plan ....” 29 U.S.C.A. § 1144(a) (West 1985) (emphasis added). Under ERISA preemption analysis, a state law relates to an ERISA plan if it has a connection with or reference to such a plan. CIGNA, 82 F.3d at 647. If the Court determines that certain portions of a state statute are preempted by ERISA and therefore, contravene federal law, then the Court may sever those portions from the statute provided that their invalidity does not affect the remainder of the statute. Texas Pharmacy Ass’n v. Prudential Ins. Co. of Am., 105 F.3d 1035, 1039 (5th Cir.1997). The Court’s decision to sever a statute is also based on whether or not that state statute has a provision for severability or nonseverability. Id. Since pre-emption turns on Congress’s intent, the court must begin “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., 514 U.S. 645, 655, 115 S.Ct. 1671, 1676, 131 L.Ed.2d 695 (1995). “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” U.S. v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). Thus, in this case, the Court must determine whether any claims, brought under the Act would relate to an employee benefit plan and would, therefore, be preempted by Section 514(a) of ERISA. A. What is an ERISA Plan? First, the Court must examine what constitutes an ERISA plan. An employee welfare benefit plan (which includes health benefits plans), is defined as: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries,' through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability.... 29 U.S.C.A. § 1002(1) (West Supp.1998) (emphasis added). The first phrase — plan, fund, or program — has been interpreted as requiring an “ongoing administrative program” on the part of the employer. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 2217, 96 L.Ed.2d 1 (1987). A “plan, fund, or program” under ERISA is established if “from the surrounding circumstances a reasonable person can ascertain the intended benefits, class of beneficiaries, the source of financing, and the procedures for receiving benefits.” Donovan v. Dillingham, 688 F.2d 1367, 1371, 1373 (11th Cir.1982); see Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1047-48 (10th Cir.1992). The administrative program, however, need not be elaborate. Peckham, 964 F.2d at 1048. The second phrase of the definition — established or maintained by an employer— is .designed to distinguish situations in which the employer merely acts as a conduit for' the marketing of an insurance policy to individual employees (in which ease no ERISA plan exists), from the situation in which the employer financially pays for some or all of the plan and/or otherwise is involved in its administration (e.g. defining and administering employee eligibility, or listing the plan as a benefit of employment). Rand Rosenblatt, Law and the Amemcan Health CaRE System 190 (Supp.1998). In particular, this second phrase is designed to “ensure that the plan is part of an employment relationship.... [This] requirement seeks to ascertain whether the plan is part of an employment relationship by looking at the degree of participation by the employer in the establishment or maintenance of the plan.” Peckham, 964 F.2d at 1049. In Meredith v. Time Ins. Co., 980 F.2d 352, 355 (5th Cir.1993), the Fifth Circuit outlined its “comprehensive test for determining whether a particular plan qualifies as an ‘employee welfare benefit plan’ ” under ERISA. Under Meredith, the test requires the full analysis of whether a plan: (1) exists; (2) falls within the safe-harbor provision established by the Department of Labor; and (3) satisfies the primary elements of an ERISA “employee benefit plan” — establishment or maintenance by an employer intending to benefit employees. If any part of the inquiry is answered in the negative, the submission is not an ERISA plan.... [The Court’s] analysis is informed by reference to ERISA itself, including germane indications of congressional intent, and to the extent Congress has failed to state its intention on the precise issue in question, we refer to permissible interpretations by the agency charged with administering the statute — the Department of Labor. Id. Furthermore, ERISA does not regulate “bare purchases of health insurance where ... the purchasing employer neither directly or indirectly owns, controls, administers or assumes responsibility for the policy or its benefits.” Taggart Corp. v. Life & Health Benefits Admin., Inc., 617 F.2d 1208, 1211 (5th Cir.1980). Thus, in this case, the Court must determine whether the provisions of the Act relate to any employee benefit plan as defined by Meredith. In this case, Defendants make the following argument: [Plaintiff] AEtna blurs the distinction between an ERISA plan (established by an employer to provide benefits to an employee) and a health plan' (established by health insurance entities as a vehicle for bearing the risks of health insurance and providing coverage to an ERISA plan for those employees). AEtna admits plaintiffs ‘offer products in the form of managed health care coverage to employees who are enrolled in ERISA and FEHBA plans in Texas.’ AEtna may operate as a ‘health plan,’ but AEtna is not an ERISA plan established by an employer. (Defendants’ Reply, Instrument No. 24 at 1). In essence, Defendants argue that Plaintiffs are operating health plans, but that they are not operating ERISA plans that would be preempted by ERISA. The Court agrees. The Act expressly regulates health insurance carriers, health maintenance organizations and managed care entities by specifically addressing their health plans and not the ERISA plans of employers. Under the Act, “[a] health insurance carrier, health maintenance organization, or other managed care entity for a health care plan has the duty to exercise ordinary care when making health care treatment decisions and is liable for harm to an insured or enrollee proximately caused by its failure to exercise such ordinary care.” Tex. Civ. Prac. & Rem. Code Ann. § 88.002(a) (West 1998). A health insurance carrier “means an authorized insurance company that issues policies of accident and sickness” under Article 3.70-1 of the Texas Insurance Code. Tex. Civ. Prao. & Rem. Code Ann. § 88.001(6) (West 1998). A health maintenance organization includes “organization^] licensed under the Texas Health Maintenance Organization Act[.]” Id. § 88.001(7). A managed care entity under the Act is defined as any entity which delivers, administers, or assumes risk for health care services with systems or techniques to control or influence the quality, accessibility, utilization, or costs and prices of such services to a defined enrollee population, but does not include an employer purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer or a pharmacy licensed by the State Board of Pharmacy. Id. § 88.001(8) (emphasis added). The health plans provided by health insurance carriers, health maintenance organizations, or managed care entities, as previously defined, and the health care entities themselves cannot constitute ERISA plans because the third inquiry under the Fifth Circuit’s test — whether the plan satisfies the primary elements of an ERISA “employee benefit plan” — must be answered in the negative. Plaintiffs admit that they “offer products in the form of managed health care coverage to employees who are enrolled in ERISA and FEHBA plans in Texas.” (Plaintiffs’ Motion, Instrument No. 20 at 3). Plaintiffs and the coverage provided by them, however, are not established or maintained by an employer. Plaintiffs concede that they fall “within the term ‘managed care entity’ as defined in the Act[.]” (Id. at 4). A managed care entity does not include “an employer purchasing coverage or acting on behalf of its employees[.]” Tex. Crv. Prac. & Rem. Code Ann. § 88.001(8) (West 1998). Therefore, by definition, Plaintiffs and the managed health care plans that Plaintiffs offer would not satisfy the primary elements of an ERISA employee benefit plan because they are not established or maintained by an employer. Rather, Plaintiffs are medical service providers to ERISA plans and their members. Plaintiffs operate health plans rather than ERISA employee benefit plans. Consequently, the Court finds that Plaintiffs and the particular arrangement or services provided by them, that are addressed under the Act, are not ERISA employee benefit plans since the coverage is not established or maintained by an employer. See CIGNA, 82 F.3d at 648 (recognizing that Plaintiffs, an HMO and a health insurer, were not ERISA plans); Washington Physicians Serv. Ass’n v. Gregoire, 147 F.3d 1039, 1043 (9th Cir.1998) (stating that the statute makes it clear that the term “health plans” “refers to the plan offered by the health carrier (e.g., an HMO), not the benefit plan offered by the employer”); Dukes v. US. Healthcare, 57 F.3d 350, 356 (3d Cir.1995) (noting the Department of Labor’s argument that plaintiffs claims merely attacked “the behavior of an entity completely external to the ERISA plant,] [the HMO]”). Nonetheless, Plaintiffs argue that the fact that Aetna is not an ERISA health plan is of “no significance to the preemption analysis.” (Plaintiffs’ Surreply, Instrument No. 33 at 1). Plaintiffs rely on CIGNA Healthplan of La., Inc. v. State of Louisiana, 82 F.3d 642 (5th Cir.1996), for this argument. In CIGNA, CIGNA Healthplan of Louisiana (“CIGNA”), a licensed HMO, and Connecticut General Life Insurance Company (“CGLIC”), a licensed health insurer, filed suit against Richard Ieyoub, the Attorney General of the state of Louisiana, seeking a declaratory judgment that Louisiana’s Any Willing Provider statute was preempted by ERISA. 82 F.3d at 644. “The Any Willing Provider statute ... mandate[d] that [n]o licensed provider ... who agree[d] to the terms and conditions of the preferred provider contract ... [could] be denied the right to become a preferred provider.’” Id. at 645 (quoting La. Rev. Stat. ANN. § 40:2202(5)(c) (West 1992)). The Fifth Circuit concluded that the statute was preempted by ERISA both because it referred to ERISA-qualified plans by including certain enumerated entities, and because it had a connection with such plans by mandating that “certain benefits available to ERISA plans ... be construed in a particular manner.” Id. at 648-49. Since the Court found that the statute in CIGNA directly affected benefits provided under the plan, the Court did not have to examine whether or not CIGNA or CGLIC was an ERISA plan. Rather, the Court based its decision on the substantial effect that the statute had on all insured plans. Id. at 648. The Court, however, did remark that the fact that CIGNA and CGLIC were not themselves ERISA plans was inconsequential. Id. at 648. It made this statement while discussing the statute’s “connection with” ERISA plans. Id. The Court further explained that CIGNA’s and CGLIC’s status was inconsequential because: [b]y denying insurers, employer, and HMOs the right to structure their benefits in a particular manner, the statute [wa]s effectively requiring ERISA plans to purchase benefits of a particular structure when they contract with organizations like CIGNA and CGLIC. - In that regard, the statute “b[o're] indirectly but substantially on all insured plans” and [wa]s accordingly preempted by ERISA. Id. at 648-49 (quoting Metropolitan Life, 471 U.S. at 739,105 S.Ct. at 2389). In accordance with CIGNA, the Court finds that whether or not Plaintiffs in this case are ERISA plans is inconsequential because, under current Fifth Circuit law, certain severable provisions of the Act, as discussed below, “relate to” ERISA employee benefit plans. B. “Relates To” Analysis A state law relates to an ERISA plan “in the normal sense of the phrase if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983) (emphasis added). The Supreme Court has given the phrase “relates to” a “broad common-sense meaning.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1553, 95 L.Ed.2d 39 (1987). Under this definition, A state law can relate to an ERISA plan even if that law was not specifically designed to affect such plans, and even if its effect is only indirect. If a state law does not expressly concern employee benefit plans, it will be preempted insofar as it applies to benefit plans in particular cases_ CIGNA, 82 F.3d at 647. “The most obvious class of pre-empted state laws are those that are specifically designed to affect ERISA-governed employee benefits plans.” Corcor an v. United Healthcare, Inc., 965 F.2d 1321, 1328 (5th Cir.1992). In determining whether a state law. “related to” an ERISA plan, the Supreme Court has adopted a pragmatic approach. See Travelers, 514 U.S. at 654-57, 115 S.Ct. at 1676-77. In Travelers, the Court stated that it “must go beyond the unhelpful text [of Section 514(a) ] and the frustrating difficulty of defining its key term [‘relates to’], and look instead to the objectives of the ERISA statute as a guide.to the scope of the state law that Congress understood would survive [preemption].” 514 U.S. at 656, 115 S.Ct. at 1677. As stated by the Court in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., in passing Section 514, Congress intended ‘to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burdens of complying with conflicting directives among States or between States and the Federal Government ..., [and to prevent] the potential for conflict in substantive law ... requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction.’ 514 U.S. at 656, 115 S.Ct. at 1677 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142, 111 S.Ct. 478, 484, 112 L.Ed.2d 474 (1990)). Therefore, “[t]he basic thrust of ... [ERISA’s] pre-emption clause ... was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.” Travelers, 514 U.S. at 657,115 S.Ct. at 1677-78. Although the text of Section 514(a) is clearly expansive, in so far as it affects all state laws that relate to ERISA plans, the phrase “relate[s] to” does not “extend to the furthest stretch of its indeterminaey[.]” Id. at 655, 115 S.Ct. at 1677. If that were the case, “then for all practical purposes preemption would never run its course” and courts would be required “to read Congress’s words of limitation as mere sham, and to read the presumption against preemption out of the law whenever Congress speaks to the matter with generality.” Id. Thus, in particular, ERISA’s “relate[s] to” language was not “intended to modify ‘the starting presumption that Congress does not intend to supplant state law ” which falls within areas of traditional state regulation. De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, —, 117 S.Ct. 1747, 1751-52, 138 L.Ed.2d 21 (1997) (quoting Travelers, 514 U.S. at 654-55, 115 S.Ct. at 1676). “The historic powers of the State include the regulation of matters of health and safety.” De Buono, 520 U.S. at —, 117 S.Ct. at 1751-52 (citing Hillsborough County, Fla. v. Automated Med. Laboratories, Inc., 471 U.S. 707, 716, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714 (1985)). The Act, in this case, regulates the medical decisions of health insurance carriers, health maintenance organizations, and other managed care entities, see Tex. Civ. PeaC. & Rem. Code Ann. § 88.002 (West 1998), and therefore, clearly operates in a field that has been traditionally occupied by the States. “[W]here federal law is said to bar state action in fields of traditional state regulation,” this Court should work on the “assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Travelers, 514 U.S. at 654-55, 115 S.Ct. at 1676 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Consequently, Plaintiffs “bear the considerable burden of overcoming ‘the starting presumption that Congress does not intend to supplant state law.’” De Buono, 520 U.S. at —, 117 S.Ct. at 1752. 1. “Reference To” Under the “reference to” inquiry, the Supreme Court has “held preempted a law that ‘imposfed] requirements by reference to [ERISA] covered programs,’ ... a law that specifically exempted ERISA plans from an otherwise generally applicable garnishment provision, ... and a common-law cause of action premised on the existence of an ERISA plan.” California Div. of Labor Standards Enforcement v. Dillingham Constr. N.A., Inc., 519 U.S. 316, —, 117 S.Ct. 832, 837-38, 136 L.Ed.2d 791 (1997) (citations omitted) (quoting District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 131, 113 S.Ct. 580, 584, 121 L.Ed.2d 513 (1992)). Thus, “[w]here a State’s law acts immediately and exclusively upon ERISA plans ... or where the existence of ERISA plans is essential to the law’s operation ... that ‘reference’ will result in pre-emption.” Dillingham, 519 U.S. at —, 117 S.Ct. at 838. In Travelers, the Supreme Court examined New York statutes that imposed “surcharges on bills of patients whose commercial insurance coverage [wa]s purchased by employee health-care plans governed by ERISA and ... on HMOs insofar as their membership fees ... [were] paid by an ERISA plan.” 514 U.S. at 649, 115 S.Ct. at 1673-74. Notably, the surcharge on HMOs was “not an increase in the rates to be paid by an HMO to a hospital, but a direct payment by the HMO to the State’s general fund.” Id. at 650, 115 S.Ct. at 1674. The Court held that the “surcharge statutes ... [could not] be said to make ‘reference to’ ERISA plans in any manner” because the surcharges were “imposed upon patients and HMOs, regardless of whether the commercial coverage or membership, respectively, [wa]s ultimately secured by an ERISA plan, private purchase, or otherwise[.]” Id. at 656, 115 S.Ct. at 1677. Similarly, in this ease, the Act imposes a standard of ordinary care directly upon health insurance carriers and health maintenance organizations when making health care treatment decisions, regardless of whether the commercial coverage or membership therein is ultimately secured by an ERISA plan. See Tex. Civ. Prao. & Rem. Code § 88.001-88.002 (West 1998). The Act also requires managed care entities to exercise ordinary care when making medical decisions. Id. § 88.002(a). However, as already' mentioned, the Act specifically excludes ERISA plans from the definition of a “managed care entity.” See id. § 88.001(8). Section 88.001(8) of the Texas Civil Practice and Remedies Code, as added by the Act, provides that a “managed care entity” does not include “an employer purchasing coverage or acting On behalf of its employees.” Id. Consequently, as in Travelers, the Act cannot be said to make any reference to ERISA plans. Plaintiffs, however, maintain that preemption is' mandated because the Act has an express reference to ERISA plans in several other provisions. (Plaintiffs’ Motion, Instrument No. 20 at 7). In particular, Plaintiffs seem to argue that the mere inclusion of certain terms that allegedly refer to ERISA plans, such as “plan,” “health care plan,” “health maintenance organization,” and “managed care entity,” warrants preemption. (Plaintiffs* Motion, Instrument No. 20 at 7-9). Plaintiffs rely on District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992), and CIGNA for this proposition. In Greater Washington, 506 U.S. at 130, 113 S.Ct. at 583, the Supreme Court determined that “Section 2(c)(2) of the District’s Equity Amendment Act specifically referred] to welfare benefit plans regulated by ERISA and on that basis alone [wa]s preempted.” Section 2(c)(2) of the Equity Amendment Act provided the following: “Any employer who provides health insurance coverage for an employee shall provide health insurance equivalent to the existing health insurance coverage of the employee while the employee receives or is eligible to receive workers’ compensation benefits under this chapter.” Id. at 128, 113 S.Ct. at 582 (quoting D.C. Code Ann. § 36-307(a-1)(1) (Supp.1992) (emphasis added)). Furthermore, the employer had to provide this health insurance coverage for a maximum of 52 weeks “at the same benefit level that the employee had at the time the employee received or was eligible to receive workers’ compensation benefits.” Id. (quoting D.C. Code Ann. § 36-307(a-l)(3) (Supp.1992)). Thus, the health insurance coverage required of employers was “measured by reference to ‘the existing health insurance coverage’ provided by the employer” and had to be maintained at the same benefit level. Id. at 130, 113 S.Ct. at 583-84 (emphasis added) (quoting D.C. Code Ann. § 36-307(a-l)(l) and (3) (Supp.1992)). The Court then determined that “[t]he employee’s ‘existing health insurance coverage,’ in turn, [wa]s a welfare benefit plan under ERISA ... because it involved] a fund or program maintained by an employer for the purpose of providing health benefits for the employee ‘through the purchase of insurance or otherwise.’ ” Id. at 130, 113 S.Ct. at 584 (quoting 29 U.S.C. § 1002(1)). Thus, since the Equity Amendment Act imposed requirements by reference to such employer-sponsored health insurance programs that were subject to ERISA regulation, the Court concluded that the Act was preempted by ERISA Id. at 130-31, 113 S.Ct. at 584. Contrary to Plaintiffs’ contention, in Greater Washington, the Supreme Court did not conclude that the statute referred to ERISA plans simply because it contained certain terminology. Rather, as explained in California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. at —, 117 S.Ct. at 838, the Court reasoned that the reference to ERISA plans resulted in preemption because' the existence of ERISA plans was essential to the statute’s operation. Unlike the statute in Greater Washington, the Act is not premised on the existence of an ERISA plan. It merely requires health insurance carriers, HMOs, and other managed care entities to exercise ordinary care when making medical decisions. The Act imposes this standard on these entities without any reference to or reliance on an ERISA plan. In CIGNA, 82 F.3d at 645^7, the Fifth Circuit held that Louisiana’s Any Willing Provider statute was preempted by ERISA because it referred to ERISA-qualified plans. The statute required all licensed providers “who agre[ed] to the terms and conditions of the preferred provider contract” to be accepted as providers in the preferred provider organization (“PPO”). La. Rev. Stat. Ann. § 40:2202(5)(c) (West 1992) (emphasis added). Under the Health Care Cost Control Act, a “preferred provider contract” was defined as “an agreement ‘between a provider or providers and a group purchaser or purchasers to provide for alternative rates of payment specified in advance for a defined period of time.’ ” CIGNA, 82 F.3d at 647-48 (quoting La. Rev. Stat. Ann. § 40:2022(5)(a) (emphasis added)). The Fifth Circuit then examined the definition of “group purchasers.” Under the statute, group purchasers may have included entities “such as ‘Taft-Hartley trusts or employers who establish or participate in self funded trusts or programs,’ which ‘contract [with health care providersjfor the benefit of their -... employees’ ” CIGNA, 82 F.3d at 648 (quoting La. Rev. Stat. Ann. § 40:2022(5)(a) (emphasis added)). Since the entities encompassed by the term “group purchasers” included ERISA plans, the Court determined that Louisiana’s Health Care Cost Control Act, “and through it the Any Willing Provider statute, expressly refer[red] to ERISA plans.” Id. Unlike the statute in CIGNA, the requirement imposed by the Act does not contain a reference to ERISA plans. The Act states that health insurance carriers, HMOs, and other managed care entities-have a duty to exercise ordinary care when making health care treatment decisions. Tex. Civ. Prac. & Rem. Code Ann. § 88.002 (West 1998). None of these enumerated entities constitute ERISA plans since, by definition, they are not “established or maintained by an employer or by an employee organization ... for the purpose of providing” health care benefits for employees. 29 U.S.C.A. § 1002(1) (West Supp.1998); see Tex. Crv. Prao. & Rem. Code Ann. § 88.001 (West 1998). In this case, the Court finds that, as in Travelers, the existence of- an ERISA plan is not essential to the operation of the Act. Furthermore, the Act does not work “immediately and exclusively upon ERISA plans.” Dillingham, 514 U.S. at-, 117 S.Ct. at 838. Consequently, the Court concludes that the Act “cannot be said to make a ‘reference to’ ERISA plans in any manner.” Travelers, 514 U.S. at 656,115 S.Ct. at 1677. Plaintiffs also suggest that the Act explicitly refers to ERISA plans by its use of the term “health care plan” and “managed care entity.” (Plaintiffs Motion, Instrument No. 20 at 8). The Act defines “health care plan” as “any plan whereby a person undertakes to provide, arrange for, pay for, or reimburse any part of the cost of any health care services.” Tex. Crv. Prao. & Rem. Code Ann. § 88.001(8) (West 1998). The Act then states that a “managed care entity for a health care plan” must exercise ordinary care when making medical decisions. Id. § 88.002(a) (emphasis added). The phrase “health care plan” cannot be isolated from the term “managed care entity” simply to create a reference to an ERISA plan. In this context, “health care plan” cannot constitute an ERISA plan because a “managed care entity ... does not include an employer purchasing coverage or acting on behalf of its employees!;.]” Id. § 88.001(8). 2. “Connection With” “A law that does not refer to ERISA plans may yet be pre-empted if it has a ‘connection with’ ERISA plans.” Dillingham, 519 U.S. at —, 117 S.Ct. at 838. “To determine whether a state law has the forbidden connection, [the court looks] ... both to ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of the state law on ERISA plans.” Id. (quoting Travelers, 514 U.S. at 656, 115 S.Ct. at 1677); see De Buono, 520 U.S. at —, 117 S.Ct. at 1750 (noting the Court’s rejection of a strictly literal reading of Section 514(a) and emphasis on the objectives of the ERISA statute). Here, Plaintiffs contend that the Act has a “connection with” ERISA plans in several ways. Plaintiffs claim that the Act improperly imposes state law liability on ERISA entities, impermissibly mandates the structure of plan benefits and their administration, unlawfully binds plan administrators to particular choices, and wrongfully creates an alternate enforcement mechanism. (Plaintiffs’ Motion, Instrument No. 20 at 9-18). i. Imposition of State Law Liability ■ According to Plaintiffs, the “Fifth Circuit has twice held that attempts to impose state law liability on managed care entities in ‘connection with’ their ‘health care treatment decisions’ fall within the scope of the preemption clause.” (Plaintiffs’ Response, Instrument No. 20 at 10). In particular, Plaintiffs rely on the Fifth Circuit’s decisions in Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Cir.1992), and Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014 (5th Cir.1993) for this argument. In Corcoran, 965 F.2d at 1331, the Fifth Circuit held that a Louisiana tort' action for the wrongful death of an unborn child was preempted by ERISA. In that ease, United Healthcare (“United”), the provider of utilization review services to an employee benefit plan, determined that Mrs. Corcoran’s hospitalization during the final months of her pregnancy was not necessary despite her doctors’ repeated recommendations for complete bed rest. Id. at 1322-24. The contract between United and Mrs. Corcoran’s employer provided that United would “contact the Participant’s physician and based upon the medical evidence and normative data determine whether the Participant should be eligible to receive full plan benefits for the recommended hospitalization and the duration of benefits.” Id. at 1331 (quotation omitted). Contrary to her doctor’s requests, United only authorized ten hours per day of home nursing care for Mrs. Corcoran. Id. at 1324. While the nurse was off-duty, the fetus went into distress and died. Id. Subsequently, the Corcorans brought suit against United for wrongful death, alleging “that their unborn child died as a result of various acts of negligence committed by” the mother’s health plan and United. Id. at 1324. United argued that the Corcorans’ claims were preempted by ERISA because its “decision [was] made in its capacity as a plan fiduciary [and was] about what benefits were authorized under the [p]lan.” Id. at 1329. According to United, the company simply applied previously established eligibility criteria in order to determine whether Mrs. Corcoran was qualified for the benefits provided by the plan. Id. Thus, United maintained that, under prevailing ERISA preemption law, the Corcorans could not “sue in tort to redress injuries flowing from decisions about what benefits are to be paid under a plan.” Id. at 1330. The Corcorans, on the other hand, contended that their cause of action sought “to recover benefits solely for United’s erroneous medical decision that Mrs. Corcoran did not require hospitalization during the last month of her pregnancy.” Id. at 1330. Therefore, the Corcorans continued, United’s exercise of medical judgment fell “outside the purview of ERISA preemption.” Id. Unable to agree with either characterization, the Fifth Circuit concluded that United made “medical decisions ■... in the context of making a determination about the availability of benefits under the plan.” Id. at 1331. The Court reasoned that United decide[d] ‘what the medical plan ... [would] pay for.’ When United’s actions [we]re viewed from this perspective, it ... [became] apparent that the Corcorans [we]re attempting to recover for a tort allegedly committed in the course of handling a benefit determination.” Id. at 1332 (quoting the Quality Care Program (“QCP”) booklet which contains a description of the QCP, a cost-containment service plan, and the services provided by United). Since United made the erroneous medical decision as a “part and parcel of its mandate to decide what benefits [we]re available, under the ... plant,]” the Court concluded that ERISA’s preemption of “state-law claims alleging improper handling of benefit claims [wa]s broad enough to cover the cause of action asserted, here.” Id. “Although imposing liability on United ... [may] have the salutary effect of deterring poor quality medical decisions, ... [the Court found there was] a significant risk that state liability rules would be applied differently to the conduct of utilization review companies in different states.” Id. at 1333. Despite its finding "of preemption, the Court acknowledged “the fact that ... [its] interpretation of the preemption clause ... [left] a gap in remedies within a statute intended to protect participants in employee benefit plans” and suggested a reevaluation of ERISA. Id. at 1333, 1338-39. Indeed, the Fifth Circuit recognized that: [t]he result ERISA compels us to reach means that the Corcorans have no remedy, state or federal, for what may have been a serious mistake. This is troubling for several reasons. First, it eliminates an important check on the thousands of medical decisions routinely made in the burgeoning utilization review system. With liability rules generally inapplicable, there is theoretically less deterrence of substandard medical decision making. Moreover, if the cost of compliance with a standard of care ... need not be factored into utilization review companies’ cost of doing business, bad medical judgments will end up being cost-free to the plans that rely on these companies to contain medical costs. ERISA plans, in turn, will have one less incentive to seek companies that can deliver both high quality services and reasonable prices. Second, in any plan benefit determination, there is always some tension between the interest of the beneficiary in obtaining quality medical care and the interest of the plan in preserving the pool of funds available to compensate all beneficiaries.... Finally, cost containment features such as the one at issue in this case did not exist when Congress passed ERISA. While we are confident that the result we have reached is faithful to Congress’s intent neither to allow state-law causes of actions that related to employee benefit plans nor to provide beneficiaries in the Corcoran’s position with a remedy under ERISA, the world of employee benefit plans has hardly remained static since 1974. Fundamental changes such as the undespread institution of utilization review would seem to warrant a reevaluation of ERISA so that it can continue to serve its noble purpose of safeguarding the interests of employees. Our system, of course, allocates this task to Congress, not the courts, and we acknowledge our role today by interpreting ERISA in a manner consistent with the expressed intentions of its creators. Id. at 1338 (emphasis added). Since Corcor-an, the Supreme Court has reevaluated the “potentially infinite reach of ‘relations’ and ‘connections’ ” under ERISA preemption and has rendered three decisions, namely Travelers, Dillingham, and De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997), that “reveal the proper way to analyze[] ERISA preemption.” American Drug Stores, Inc. v. Harvard Pilgrim Health Care, Inc., 973 F.Supp. 60, 64-65 (D.Mass.1997) (quoting Travelers, 514 U.S. at 656, 115 S.Ct. at 1677). Without the benefit of these recent opinions, the Court in Corcoran stated that “the fact that states traditionally have regulated in a particular area is no impediment to ERISA pre-emption.” 965 F.2d at 1334. As such, the Court did not begin, as the recent Supreme Court cases did, with the presumption against preemption where the statute at issue addresses a historic police power of the states-namely, a matter of health and safety. See Dillingham, 519 U.S. at —, 117 S.Ct. at 838; De Buono, 520 U.S. at —, 117 S.Ct. at 1751-52; Travelers, 514 U.S. at 653-55, 115 S.Ct. at 1676-77. Instead, the Court in Corcoran reasoned that “Congress perhaps could not have predicted the interjection into the ERISA ‘system’ of the medical utilization review process[,]” and therefore, concluded that “Congress enacted a preemption clause so broad and a statute so comprehensive that it would be incompatible with the language, structure, and purpose of the statute to allow tort suits against entities so integrally connected with a plan.” Corcoran, 965 F.2d at 1334 (emphasis added). Although the fact that “the States traditionally regulated ... [certain] areas would not immunize their efforts [,]” since Corcoran, it is clear that there must be an “indication in ERISA ... [or] its legislative history of any intent on the part of Congress to preempt” a traditionally state-regulated substantive law. Dillingham, 519 U.S. at —, 117 S.Ct. at 840-41 (emphasis added). Furthermore, in Corcoran, the Court noted that: [t]he cost of complying with varying substantive standards would increase the cost of providing utilization review services, thereby increasing the cost to health benefit plans of including cost containment features such as the Quality Care Program (or causing them to eliminate this sort of cost containment program altogether) and ultimately decreasing the pool of plan funds available to reimburse participants. 965 F.2d at 1333. However, the Supreme Court in Travelers emphasized that an “indirect economic influence ... does not bind a plan administrator to any particular choice and thus function as a regulation of an ERISA plan itself.” 514 U.S. at 659, 115 S.Ct. at 1679. Moreover, if ERISA were concerned with any state action — such as quality of care standards or hospital workplace regulations — that increased the cost of providing certain benefits, and thereby, potentially affected the choices made by ERISA plans, [then] we could scarcely see the end of ERISA’s preemptive reach, and the words ‘relate to’ would limit nothing. Dillingham, 519 U.S. at —, 117 S.Ct. at 840 (citing Travelers, 514 U.S. at 663-64, 115 S.Ct. at 1681). In light of the Supreme Court’s recent mandate regarding ERISA preemption analysis, perhaps the Fifth Circuit would reach a different decision in Corcoran today. Even so, this Court finds the facts in Corcoran to be distinguishable from the conduct covered by the Act. The plaintiffs in Corcoran filed suit against their HMO regarding a medical decision made in relation to the denial of certain plan benefits. In this case, a suit brought under the Act would relate to the quality of benefits received from a managed care entity when benefits are actually provided, not denied. The Act imposes a duty of ordinary care upon certain entities when making health care treatment decisions and holds those entities liable for damages proximately caused by a failure to exercise that duty. Tex. Civ. Prac. & Rem. Code Ann. § 88.002(a) (West 1998). Furthermore, the Act clearly states that a “health care treatment decision” is “a determination made when medical services are actually provided by the health care pl