Article 3.16. Nongrandfathered Small Employer Plans of California Health And Safety Code >> Division 2. >> Chapter 2.2. >> Article 3.16.
As used in this article, the following definitions shall
apply:
(a) "Child" means a child described in Section 22775 of the
Government Code and subdivisions (n) to (p), inclusive, of Section
599.500 of Title 2 of the California Code of Regulations.
(b) "Dependent" means the spouse or registered domestic partner,
or child, of an eligible employee, subject to applicable terms of the
health care service plan contract covering the employee, and
includes dependents of guaranteed association members if the
association elects to include dependents under its health coverage at
the same time it determines its membership composition pursuant to
subdivision (m).
(c) "Eligible employee" means either of the following:
(1) Any permanent employee who is actively engaged on a full-time
basis in the conduct of the business of the small employer with a
normal workweek of an average of 30 hours per week over the course of
a month, at the small employer's regular places of business, who has
met any statutorily authorized applicable waiting period
requirements. The term includes sole proprietors or partners of a
partnership, if they are actively engaged on a full-time basis in the
small employer's business and included as employees under a health
care service plan contract of a small employer, but does not include
employees who work on a part-time, temporary, or substitute basis. It
includes any eligible employee, as defined in this paragraph, who
obtains coverage through a guaranteed association. Employees of
employers purchasing through a guaranteed association shall be deemed
to be eligible employees if they would otherwise meet the definition
except for the number of persons employed by the employer. Permanent
employees who work at least 20 hours but not more than 29 hours are
deemed to be eligible employees if all four of the following apply:
(A) They otherwise meet the definition of an eligible employee
except for the number of hours worked.
(B) The employer offers the employees health coverage under a
health benefit plan.
(C) All similarly situated individuals are offered coverage under
the health benefit plan.
(D) The employee must have worked at least 20 hours per normal
workweek for at least 50 percent of the weeks in the previous
calendar quarter. The health care service plan may request any
necessary information to document the hours and time period in
question, including, but not limited to, payroll records and employee
wage and tax filings.
(2) Any member of a guaranteed association as defined in
subdivision (m).
(d) "Exchange" means the California Health Benefit Exchange
created by Section 100500 of the Government Code.
(e) "In force business" means an existing health benefit plan
contract issued by the plan to a small employer.
(f) "Late enrollee" means an eligible employee or dependent who
has declined enrollment in a health benefit plan offered by a small
employer at the time of the initial enrollment period provided under
the terms of the health benefit plan consistent with the periods
provided pursuant to Section 1357.503 and who subsequently requests
enrollment in a health benefit plan of that small employer, except
where the employee or dependent qualifies for a special enrollment
period provided pursuant to Section 1357.503. It also means any
member of an association that is a guaranteed association as well as
any other person eligible to purchase through the guaranteed
association when that person has failed to purchase coverage during
the initial enrollment period provided under the terms of the
guaranteed association's plan contract consistent with the periods
provided pursuant to Section 1357.503 and who subsequently requests
enrollment in the plan, except where that member or person qualifies
for a special enrollment period provided pursuant to Section
1357.503.
(g) "New business" means a health care service plan contract
issued to a small employer that is not the plan's in force business.
(h) "Preexisting condition provision" means a contract provision
that excludes coverage for charges or expenses incurred during a
specified period following the enrollee's effective date of coverage,
as to a condition for which medical advice, diagnosis, care, or
treatment was recommended or received during a specified period
immediately preceding the effective date of coverage. No health care
service plan shall limit or exclude coverage for any individual based
on a preexisting condition whether or not any medical advice,
diagnosis, care, or treatment was recommended or received before that
date.
(i) "Creditable coverage" means:
(1) Any individual or group policy, contract, or program that is
written or administered by a disability insurer, health care service
plan, fraternal benefits society, self-insured employer plan, or any
other entity, in this state or elsewhere, and that arranges or
provides medical, hospital, and surgical coverage not designed to
supplement other private or governmental plans. The term includes
continuation or conversion coverage but does not include accident
only, credit, coverage for onsite medical clinics, disability income,
Medicare supplement, long-term care, dental, vision, coverage issued
as a supplement to liability insurance, insurance arising out of a
workers' compensation or similar law, automobile medical payment
insurance, or insurance under which benefits are payable with or
without regard to fault and that is statutorily required to be
contained in any liability insurance policy or equivalent
self-insurance.
(2) The Medicare Program pursuant to Title XVIII of the federal
Social Security Act (42 U.S.C. Sec. 1395 et seq.).
(3) The Medicaid program pursuant to Title XIX of the federal
Social Security Act (42 U.S.C. Sec. 1396 et seq.).
(4) Any other publicly sponsored program, provided in this state
or elsewhere, of medical, hospital, and surgical care.
(5) Chapter 55 (commencing with Section 1071) of Title 10 of the
United States Code (Civilian Health and Medical Program of the
Uniformed Services (CHAMPUS)).
(6) A medical care program of the Indian Health Service or of a
tribal organization.
(7) A health plan offered under Chapter 89 (commencing with
Section 8901) of Title 5 of the United States Code (Federal Employees
Health Benefits Program (FEHBP)).
(8) A public health plan as defined in federal regulations
authorized by Section 2701(c)(1)(I) of the Public Health Service Act,
as amended by Public Law 104-191, the Health Insurance Portability
and Accountability Act of 1996.
(9) A health benefit plan under Section 5(e) of the Peace Corps
Act (22 U.S.C. Sec. 2504(e)).
(10) Any other creditable coverage as defined by subsection (c) of
Section 2704 of Title XXVII of the federal Public Health Service Act
(42 U.S.C. Sec. 300gg-3(c)).
(j) "Rating period" means the period for which premium rates
established by a plan are in effect and shall be no less than 12
months from the date of issuance or renewal of the plan contract.
(k) (1) "Small employer" means any of the following:
(A) For plan years commencing on or after January 1, 2014, and on
or before December 31, 2015, any person, firm, proprietary or
nonprofit corporation, partnership, public agency, or association
that is actively engaged in business or service, that, on at least 50
percent of its working days during the preceding calendar quarter or
preceding calendar year, employed at least one, but no more than 50,
eligible employees, the majority of whom were employed within this
state, that was not formed primarily for purposes of buying health
care service plan contracts, and in which a bona fide
employer-employee relationship exists. For plan years commencing on
or after January 1, 2016, any person, firm, proprietary or nonprofit
corporation, partnership, public agency, or association that is
actively engaged in business or service, that, on at least 50 percent
of its working days during the preceding calendar quarter or
preceding calendar year, employed at least one, but no more than 100,
employees, the majority of whom were employed within this state,
that was not formed primarily for purposes of buying health care
service plan contracts, and in which a bona fide employer-employee
relationship exists. In determining whether to apply the calendar
quarter or calendar year test, a health care service plan shall use
the test that ensures eligibility if only one test would establish
eligibility. In determining the number of employees or eligible
employees, companies that are affiliated companies and that are
eligible to file a combined tax return for purposes of state taxation
shall be considered one employer. Subsequent to the issuance of a
health care service plan contract to a small employer pursuant to
this article, and for the purpose of determining eligibility, the
size of a small employer shall be determined annually. Except as
otherwise specifically provided in this article, provisions of this
article that apply to a small employer shall continue to apply until
the plan contract anniversary following the date the employer no
longer meets the requirements of this definition. It includes any
small employer as defined in this paragraph who purchases coverage
through a guaranteed association, and any employer purchasing
coverage for employees through a guaranteed association. This
subparagraph shall be implemented to the extent consistent with
PPACA, except that the minimum requirement of one employee shall be
implemented only to the extent required by PPACA.
(B) Any guaranteed association, as defined in subdivision (l),
that purchases health coverage for members of the association.
(2) For plan years commencing on or after January 1, 2014, the
definition of an employer, for purposes of determining whether an
employer with one employee shall include sole proprietors, certain
owners of "S" corporations, or other individuals, shall be consistent
with Section 1304 of PPACA.
(3) For plan years commencing on or after January 1, 2016, the
definition of small employer, for purposes of determining employer
eligibility in the small employer market, shall be determined using
the method for counting full-time employees and full-time equivalent
employees set forth in Section 4980H(c)(2) of the Internal Revenue
Code.
(l) "Guaranteed association" means a nonprofit organization
comprised of a group of individuals or employers who associate based
solely on participation in a specified profession or industry,
accepting for membership any individual or employer meeting its
membership criteria, and that (1) includes one or more small
employers as defined in subparagraph (A) of paragraph (1) of
subdivision (k), (2) does not condition membership directly or
indirectly on the health or claims history of any person, (3) uses
membership dues solely for and in consideration of the membership and
membership benefits, except that the amount of the dues shall not
depend on whether the member applies for or purchases insurance
offered to the association, (4) is organized and maintained in good
faith for purposes unrelated to insurance, (5) has been in active
existence on January 1, 1992, and for at least five years prior to
that date, (6) has included health insurance as a membership benefit
for at least five years prior to January 1, 1992, (7) has a
constitution and bylaws, or other analogous governing documents that
provide for election of the governing board of the association by its
members, (8) offers any plan contract that is purchased to all
individual members and employer members in this state, (9) includes
any member choosing to enroll in the plan contracts offered to the
association provided that the member has agreed to make the required
premium payments, and (10) covers at least 1,000 persons with the
health care service plan with which it contracts. The requirement of
1,000 persons may be met if component chapters of a statewide
association contracting separately with the same carrier cover at
least 1,000 persons in the aggregate.
This subdivision applies regardless of whether a contract issued
by a plan is with an association, or a trust formed for or sponsored
by an association, to administer benefits for association members.
For purposes of this subdivision, an association formed by a
merger of two or more associations after January 1, 1992, and
otherwise meeting the criteria of this subdivision shall be deemed to
have been in active existence on January 1, 1992, if its predecessor
organizations had been in active existence on January 1, 1992, and
for at least five years prior to that date and otherwise met the
criteria of this subdivision.
(m) "Members of a guaranteed association" means any individual or
employer meeting the association's membership criteria if that person
is a member of the association and chooses to purchase health
coverage through the association. At the association's discretion, it
also may include employees of association members, association
staff, retired members, retired employees of members, and surviving
spouses and dependents of deceased members. However, if an
association chooses to include these persons as members of the
guaranteed association, the association shall make that election in
advance of purchasing a plan contract. Health care service plans may
require an association to adhere to the membership composition it
selects for up to 12 months.
(n) "Affiliation period" means a period that, under the terms of
the health care service plan contract, must expire before health care
services under the contract become effective.
(o) "Grandfathered health plan" has the meaning set forth in
Section 1251 of PPACA.
(p) "Nongrandfathered small employer health care service plan
contract" means a small employer health care service plan contract
that is not a grandfathered health plan.
(q) "Plan year" has the meaning set forth in Section 144.103 of
Title 45 of the Code of Federal Regulations.
(r) "PPACA" means the federal Patient Protection and Affordable
Care Act (Public Law 111-148), as amended by the federal Health Care
and Education Reconciliation Act of 2010 (Public Law 111-152), and
any rules, regulations, or guidance issued thereunder.
(s) "Small employer health care service plan contract" means a
health care service plan contract issued to a small employer.
(t) "Waiting period" means a period that is required to pass with
respect to an employee before the employee is eligible to be covered
for benefits under the terms of the contract.
(u) "Registered domestic partner" means a person who has
established a domestic partnership as described in Section 297 of the
Family Code.
(v) "Family" means the subscriber and his or her dependent or
dependents.
(w) "Health benefit plan" means a health care service plan
contract that provides medical, hospital, and surgical benefits for
the covered eligible employees of a small employer and their
dependents. The term does not include coverage of Medicare services
pursuant to contracts with the United States government, Medicare
supplement coverage, or coverage under a specialized health care
service plan contract.
This article shall apply only to nongrandfathered small
employer health care service plan contracts and only with respect to
plan years beginning on or after January 1, 2014.
(a) A health care service plan providing or arranging for
the provision of essential health benefits, as defined by the state
pursuant to Section 1302 of PPACA, to small employers shall be
subject to this article if either of the following conditions is met:
(1) Any portion of the premium is paid by a small employer, or any
covered individual is reimbursed, whether through wage adjustments
or otherwise, by a small employer for any portion of the premium.
(2) The plan contract is treated by the small employer or any of
the covered individuals as part of a plan or program for the purposes
of Section 106 or 162 of the Internal Revenue Code.
(b) This article shall not apply to health care service plan
contracts for coverage of Medicare services pursuant to contracts
with the United States government, Medicare supplement, Medi-Cal
contracts with the State Department of Health Care Services,
long-term care coverage, or specialized health care service plan
contracts.
Nothing in this article shall be construed to preclude
the application of this chapter to either of the following:
(a) An association, trust, or other organization acting as a
"health care service plan" as defined under Section 1345.
(b) An association, trust, or other organization or person
presenting information regarding a health care service plan to
persons who may be interested in subscribing or enrolling in the
plan.
(a) (1) On and after October 1, 2013, a plan shall fairly
and affirmatively offer, market, and sell all of the plan's small
employer health care service plan contracts for plan years on or
after January 1, 2014, to all small employers in each service area in
which the plan provides or arranges for the provision of health care
services.
(2) On and after October 1, 2013, a plan shall make available to
each small employer all small employer health care service plan
contracts that the plan offers and sells to small employers or to
associations that include small employers in this state for plan
years on or after January 1, 2014. Health coverage through an
association that is not related to employment shall be considered
individual coverage pursuant to Section 144.102(c) of Title 45 of the
Code of Federal Regulations.
(3) A plan that offers qualified health plans through the Exchange
shall be deemed to be in compliance with paragraphs (1) and (2) with
respect to small employer health care service plan contracts offered
through the Exchange in those geographic regions in which the plan
offers plan contracts through the Exchange.
(b) A plan shall provide enrollment periods consistent with PPACA
and described in Section 155.725 of Title 45 of the Code of Federal
Regulations. Commencing January 1, 2014, a plan shall provide special
enrollment periods consistent with the special enrollment periods
described in Section 1399.849, to the extent permitted by PPACA,
except for the triggering events identified in paragraphs (d)(3) and
(d)(6) of Section 155.420 of Title 45 of the Code of Federal
Regulations with respect to plan contracts offered through the
Exchange.
(c) No plan or solicitor shall induce or otherwise encourage a
small employer to separate or otherwise exclude an eligible employee
from a health care service plan contract that is provided in
connection with employee's employment or membership in a guaranteed
association.
(d) Every plan shall file with the director the reasonable
employee participation requirements and employer contribution
requirements that will be applied in offering its plan contracts.
Participation requirements shall be applied uniformly among all small
employer groups, except that a plan may vary application of minimum
employee participation requirements by the size of the small employer
group and whether the employer contributes 100 percent of the
eligible employee's premium. Employer contribution requirements shall
not vary by employer size. A health care service plan shall not
establish a participation requirement that (1) requires a person who
meets the definition of a dependent in Section 1357.500 to enroll as
a dependent if he or she is otherwise eligible for coverage and
wishes to enroll as an eligible employee and (2) allows a plan to
reject an otherwise eligible small employer because of the number of
persons that waive coverage due to coverage through another employer.
Members of an association eligible for health coverage under
subdivision (m) of Section 1357.500, but not electing any health
coverage through the association, shall not be counted as eligible
employees for purposes of determining whether the guaranteed
association meets a plan's reasonable participation standards.
(e) The plan shall not reject an application from a small employer
for a small employer health care service plan contract if all of the
following conditions are met:
(1) The small employer offers health benefits to 100 percent of
its eligible employees. Employees who waive coverage on the grounds
that they have other group coverage shall not be counted as eligible
employees.
(2) The small employer agrees to make the required premium
payments.
(3) The small employer agrees to inform the small employer's
employees of the availability of coverage and the provision that
those not electing coverage must wait until the next open enrollment
or a special enrollment period to obtain coverage through the group
if they later decide they would like to have coverage.
(4) The employees and their dependents who are to be covered by
the plan contract work or reside in the service area in which the
plan provides or otherwise arranges for the provision of health care
services.
(f) No plan or solicitor shall, directly or indirectly, engage in
the following activities:
(1) Encourage or direct small employers to refrain from filing an
application for coverage with a plan because of the health status,
claims experience, industry, occupation of the small employer, or
geographic location provided that it is within the plan's approved
service area.
(2) Encourage or direct small employers to seek coverage from
another plan because of the health status, claims experience,
industry, occupation of the small employer, or geographic location
provided that it is within the plan's approved service area.
(3) Employ marketing practices or benefit designs that will have
the effect of discouraging the enrollment of individuals with
significant health needs or discriminate based on an individual's
race, color, national origin, present or predicted disability, age,
sex, gender identity, sexual orientation, expected length of life,
degree of medical dependency, quality of life, or other health
conditions.
(g) A plan shall not, directly or indirectly, enter into any
contract, agreement, or arrangement with a solicitor that provides
for or results in the compensation paid to a solicitor for the sale
of a health care service plan contract to be varied because of the
health status, claims experience, industry, occupation, or geographic
location of the small employer. This subdivision does not apply to a
compensation arrangement that provides compensation to a solicitor
on the basis of percentage of premium, provided that the percentage
shall not vary because of the health status, claims experience,
industry, occupation, or geographic area of the small employer.
(h) (1) A policy or contract that covers a small employer, as
defined in Section 1304(b) of PPACA and in Section 1357.500, shall
not establish rules for eligibility, including continued eligibility,
of an individual, or dependent of an individual, to enroll under the
terms of the policy or contract based on any of the following health
status-related factors:
(A) Health status.
(B) Medical condition, including physical and mental illnesses.
(C) Claims experience.
(D) Receipt of health care.
(E) Medical history.
(F) Genetic information.
(G) Evidence of insurability, including conditions arising out of
acts of domestic violence.
(H) Disability.
(I) Any other health status-related factor as determined by any
federal regulations, rules, or guidance issued pursuant to Section
2705 of the federal Public Health Service Act.
(2) Notwithstanding Section 1389.1, a health care service plan
shall not require an eligible employee or dependent to fill out a
health assessment or medical questionnaire prior to enrollment under
a small employer health care service plan contract. A health care
service plan shall not acquire or request information that relates to
a health status-related factor from the applicant or his or her
dependent or any other source prior to enrollment of the individual.
(i) (1) A health care service plan shall consider as a single risk
pool for rating purposes in the small employer market the claims
experience of all enrollees in all nongrandfathered small employer
health benefit plans offered by the health care service plan in this
state, whether offered as health care service plan contracts or
health insurance policies, including those insureds and enrollees who
enroll in coverage through the Exchange and insureds and enrollees
covered by the health care service plan outside of the Exchange.
(2) At least each calendar year, and no more frequently than each
calendar quarter, a health care service plan shall establish an index
rate for the small employer market in the state based on the total
combined claims costs for providing essential health benefits, as
defined pursuant to Section 1302 of PPACA and Section 1367.005,
within the single risk pool required under paragraph (1). The index
rate shall be adjusted on a marketwide basis based on the total
expected marketwide payments and charges under the risk adjustment
and reinsurance programs established for the state pursuant to
Sections 1343 and 1341 of PPACA and Exchange user fees, as described
in subdivision (d) of Section 156.80 of Title 45 of the Code of
Federal Regulations. The premium rate for all of the nongrandfathered
small employer health benefit plans within the single risk pool
required under paragraph (1) shall use the applicable marketwide
adjusted index rate, subject only to the adjustments permitted under
paragraph (3).
(3) A health care service plan may vary premium rates for a
particular nongrandfathered small employer health care service plan
contract from its index rate based only on the following actuarially
justified plan-specific factors:
(A) The actuarial value and cost-sharing design of the plan
contract.
(B) The plan contract's provider network, delivery system
characteristics, and utilization management practices.
(C) The benefits provided under the plan contract that are in
addition to the essential health benefits, as defined pursuant to
Section 1302 of PPACA. These additional benefits shall be pooled with
similar benefits within the single risk pool required under
paragraph (1) and the claims experience from those benefits shall be
utilized to determine rate variations for plan contracts that offer
those benefits in addition to essential health benefits.
(D) With respect to catastrophic plans, as described in subsection
(e) of Section 1302 of PPACA, the expected impact of the specific
eligibility categories for those plans.
(E) Administrative costs, excluding any user fees required by the
Exchange.
(j) A plan shall comply with the requirements of Section 1374.3.
(k) (1) Except as provided in paragraph (2), if Section 2702 of
the federal Public Health Service Act (42 U.S.C. Sec. 300gg-1), as
added by Section 1201 of PPACA, is repealed, this section shall
become inoperative 12 months after the repeal date, in which case
health care service plans subject to this section shall instead be
governed by Section 1357.03 to the extent permitted by federal law,
and all references in this article to this section shall instead
refer to Section 1357.03 except for purposes of paragraph (2).
(2) Subdivision (b) shall remain operative with respect to health
care service plan contracts offered through the Exchange.
(a) For plan contracts subject to this article, an
association that meets the definition of a guaranteed association, as
set forth in Section 1357.500, except for the requirement that 1,000
persons be covered, shall be entitled to purchase small employer
health coverage as if the association were a guaranteed association,
except that the coverage shall be guaranteed only for those members
of an association, as defined in subdivision (m) of Section 1357.500,
(1) who were receiving coverage or had successfully applied for
coverage through the association as of June 30, 1993, (2) who were
receiving coverage through the association as of December 31, 1992,
and whose coverage lapsed at any time thereafter because the
employment through which coverage was received ended or an employer's
contribution to health coverage ended, or (3) who were covered at
any time between June 30, 1993, and July 1, 1994, under a contract
that was in force on June 30, 1993.
(b) An association obtaining health coverage for its members
pursuant to this section shall otherwise be afforded all the rights
of a guaranteed association under this chapter, including, but not
limited to, guaranteed renewability of coverage.
(a) With respect to small employer health care service
plan contracts offered outside the Exchange, after a small employer
submits a completed application form for a plan contract, the health
care service plan shall, within 30 days, notify the employer of the
employer's actual premium charges for that plan contract established
in accordance with Section 1357.512. The employer shall have 30 days
in which to exercise the right to buy coverage at the quoted premium
charges.
(b) Except as provided in subdivision (c), when a small employer
submits a premium payment, based on the quoted premium charges, and
that payment is delivered or postmarked, whichever occurs earlier,
within the first 15 days of the month, coverage under the plan
contract shall become effective no later than the first day of the
following month. When that payment is neither delivered nor
postmarked until after the 15th day of a month, coverage shall become
effective no later than the first day of the second month following
delivery or postmark of the payment.
(c) (1) With respect to a small employer health care service plan
contract offered through the Exchange, a plan shall apply coverage
effective dates consistent with those required under Section 155.720
of Title 45 of the Code of Federal Regulations and of subdivision (e)
of Section 1399.849.
(2) With respect to a small employer health care service plan
contract offered outside the Exchange for which an individual applies
during a special enrollment period described in subdivision (b) of
Section 1357.503, the following provisions shall apply:
(A) Coverage under the plan contract shall become effective no
later than the first day of the first calendar month beginning after
the date the plan receives the request for special enrollment.
(B) Notwithstanding subparagraph (A), in the case of a birth,
adoption, or placement for adoption, coverage under the plan contract
shall become effective on the date of birth, adoption, or placement
for adoption.
(d) During the first 30 days after the effective date of the plan
contract, the small employer shall have the option of changing
coverage to a different plan contract offered by the same health care
service plan. If a small employer notifies the plan of the change
within the first 15 days of a month, coverage under the new plan
contract shall become effective no later than the first day of the
following month. If a small employer notifies the plan of the change
after the 15th day of a month, coverage under the new plan contract
shall become effective no later than the first day of the second
month following notification.
(e) All eligible employees and dependents listed on a small
employer's completed application shall be covered on the effective
date of the health benefit plan.
A small employer health care service plan contract shall
not impose a preexisting condition provision or a waiting or
affiliation period upon any individual.
Nothing in this article shall be construed as prohibiting
a health care service plan from restricting enrollment of late
enrollees to open enrollment periods provided under Section 1357.503
as authorized under Section 2702 of the federal Public Health Service
Act.
A small employer health care service plan contract shall
provide to subscribers and enrollees at least all of the essential
health benefits as defined by the state pursuant to Section 1302 of
PPACA.
(a) To the extent permitted by PPACA, a plan shall not be
required to offer a health care service plan contract or accept
applications for the contract pursuant to this article in the case of
any of the following:
(1) To a small employer, if the eligible employees and dependents
who are to be covered by the plan contract do not live, work, or
reside within a plan's approved service areas.
(2) (A) Within a specific service area or portion of a service
area, if a plan reasonably anticipates and demonstrates to the
satisfaction of the director all of the following:
(i) It will not have sufficient health care delivery resources to
ensure that health care services will be available and accessible to
the eligible employee and dependents of the employee because of its
obligations to existing enrollees.
(ii) It is applying this subparagraph uniformly to all employers
without regard to the claims experience of those employers, and their
employees and dependents, or any health status-related factor
relating to those employees and dependents.
(iii) The action is not unreasonable or clearly inconsistent with
the intent of this chapter.
(B) A plan that cannot offer a health care service plan contract
to small employers because it is lacking in sufficient health care
delivery resources within a service area or a portion of a service
area pursuant to subparagraph (A) may not offer a contract in the
area in which the plan is not offering coverage to small employers to
new employer groups until the later of the following dates:
(i) The 181st day after the date that coverage is denied pursuant
to this paragraph.
(ii) The date the plan notifies the director that it has the
ability to deliver services to small employer groups, and certifies
to the director that from the date of the notice it will enroll all
small employer groups requesting coverage in that area from the plan.
(C) Subparagraph (B) shall not limit the plan's ability to renew
coverage already in force or relieve the plan of the responsibility
to renew that coverage as described in Section 1365.
(D) Coverage offered within a service area after the period
specified in subparagraph (B) shall be subject to the requirements of
this section.
(b) (1) A health care service plan may decline to offer a health
care service plan contract to a small employer if the plan
demonstrates to the satisfaction of the director both of the
following:
(A) It does not have the financial reserves necessary to
underwrite additional coverage. In determining whether this
subparagraph has been satisfied, the director shall consider, but not
be limited to, the plan's compliance with the requirements of
Section 1367, Article 6 (commencing with Section 1375), and the rules
adopted thereunder.
(B) It is applying this paragraph uniformly to all employers
without regard to the claims experience of those employers and their
employees and dependents or any health status-related factor relating
to those employees and dependents.
(2) A plan that denies coverage to a small employer under
paragraph (1) shall not offer coverage in the group market before the
later of the following dates:
(A) The 181st day after the date that coverage is denied pursuant
to paragraph (1).
(B) The date the plan demonstrates to the satisfaction of the
director that the plan has sufficient financial reserves necessary to
underwrite additional coverage.
(3) Paragraph (2) shall not limit the plan's ability to renew
coverage already in force or relieve the plan of the responsibility
to renew that coverage as described in Section 1365.
(4) Coverage offered within a service area after the period
specified in paragraph (2) shall be subject to the requirements of
this section.
(c) Nothing in this article shall be construed to limit the
director's authority to develop and implement a plan of
rehabilitation for a health care service plan whose financial
viability or organizational and administrative capacity has become
impaired, to the extent permitted by PPACA.
The director may require a plan to discontinue the
offering of contracts or acceptance of applications from any small
employer or group upon a determination by the director that the plan
does not have sufficient financial viability, or organizational and
administrative capacity to ensure the delivery of health care
services to its enrollees. In determining whether the conditions of
this section have been met, the director shall consider, but not be
limited to, the plan's compliance with the requirements of Section
1367, Article 6 (commencing with Section 1375), and the rules adopted
thereunder.
(a) The premium rate for a small employer health care
service plan contract issued, amended, or renewed on or after January
1, 2014, shall vary with respect to the particular coverage involved
only by the following:
(1) Age, pursuant to the age bands established by the United
States Secretary of Health and Human Services and the age rating
curve established by the Centers for Medicare and Medicaid Services
pursuant to Section 2701(a)(3) of the federal Public Health Service
Act (42 U.S.C. Sec. 300gg(a)(3)). Rates based on age shall be
determined using the individual's age as of the date of the contract
issuance or renewal, as applicable, and shall not vary by more than
three to one for like individuals of different age who are 21 years
of age or older as described in federal regulations adopted pursuant
to Section 2701(a)(3) of the federal Public Health Service Act (42
U.S.C. Sec. 300gg(a)(3)).
(2) (A) Geographic region. The geographic regions for purposes of
rating shall be the following:
(i) Region 1 shall consist of the Counties of Alpine, Amador,
Butte, Calaveras, Colusa, Del Norte, Glenn, Humboldt, Lake, Lassen,
Mendocino, Modoc, Nevada, Plumas, Shasta, Sierra, Siskiyou, Sutter,
Tehama, Trinity, Tuolumne, and Yuba.
(ii) Region 2 shall consist of the Counties of Marin, Napa,
Solano, and Sonoma.
(iii) Region 3 shall consist of the Counties of El Dorado, Placer,
Sacramento, and Yolo.
(iv) Region 4 shall consist of the City and County of San
Francisco.
(v) Region 5 shall consist of the County of Contra Costa.
(vi) Region 6 shall consist of the County of Alameda.
(vii) Region 7 shall consist of the County of Santa Clara.
(viii) Region 8 shall consist of the County of San Mateo.
(ix) Region 9 shall consist of the Counties of Monterey, San
Benito, and Santa Cruz.
(x) Region 10 shall consist of the Counties of Mariposa, Merced,
San Joaquin, Stanislaus, and Tulare.
(xi) Region 11 shall consist of the Counties of Fresno, Kings, and
Madera.
(xii) Region 12 shall consist of the Counties of San Luis Obispo,
Santa Barbara, and Ventura.
(xiii) Region 13 shall consist of the Counties of Imperial, Inyo,
and Mono.
(xiv) Region 14 shall consist of the County of Kern.
(xv) Region 15 shall consist of the ZIP Codes in the County of Los
Angeles starting with 906 to 912, inclusive, 915, 917, 918, and 935.
(xvi) Region 16 shall consist of the ZIP Codes in the County of
Los Angeles other than those identified in clause (xv).
(xvii) Region 17 shall consist of the Counties of Riverside and
San Bernardino.
(xviii) Region 18 shall consist of the County of Orange.
(xix) Region 19 shall consist of the County of San Diego.
(B) No later than June 1, 2017, the department, in collaboration
with the Exchange and the Department of Insurance, shall review the
geographic rating regions specified in this paragraph and the impacts
of those regions on the health care coverage market in California,
and submit a report to the appropriate policy committees of the
Legislature. The requirement for submitting a report under this
subparagraph is inoperative June 1, 2021, pursuant to Section 10231.5
of the Government Code.
(3) Whether the contract covers an individual or family, as
described in PPACA.
(b) The rate for a health care service plan contract subject to
this section shall not vary by any factor not described in this
section.
(c) The total premium charged to a small employer pursuant to this
section shall be determined by summing the premiums of covered
employees and dependents in accordance with Section 147.102(c)(1) of
Title 45 of the Code of Federal Regulations.
(d) The rating period for rates subject to this section shall be
no less than 12 months from the date of issuance or renewal of the
plan contract.
(e) If Section 2701 of the federal Public Health Service Act (42
U.S.C. Sec. 300gg), as added by Section 1201 of PPACA, is repealed,
this section shall become inoperative 12 months after the repeal
date, in which case rates for health care service plan contracts
subject to this section shall instead be subject to Section 1357.12,
to the extent permitted by federal law, and all references to this
section shall be deemed to be references to Section 1357.12.
In connection with the offering for sale of a small
employer health care service plan contract subject to this article,
each plan shall make a reasonable disclosure, as part of its
solicitation and sales materials, of the following:
(a) The provisions concerning the plan's right to change premium
rates and the factors other than provision of services experience
that affect changes in premium rates. The plan shall disclose that
claims experience cannot be used.
(b) Provisions relating to the guaranteed issue and renewal of
contracts.
(c) A statement that no preexisting condition provisions shall be
allowed.
(d) Provisions relating to the small employer's right to apply for
any small employer health care service plan contract written,
issued, or administered by the plan at the time of application for a
new health care service plan contract, or at the time of renewal of a
health care service plan contract, consistent with the requirements
of PPACA.
(e) The availability, upon request, of a listing of all the plan's
contracts and benefit plan designs offered, both inside and outside
the Exchange, to small employers, including the rates for each
contract.
(f) At the time it offers a contract to a small employer, each
plan shall provide the small employer with a statement of all of its
small employer health care service plan contracts, including the
rates for each plan contract, in the service area in which the
employer's employees and eligible dependents who are to be covered by
the plan contract work or reside. For purposes of this subdivision,
plans that are affiliated plans or that are eligible to file a
consolidated income tax return shall be treated as one health plan.
(g) Each plan shall do all of the following:
(1) Prepare a brochure that summarizes all of its plan contracts
offered to small employers and to make this summary available to any
small employer and to solicitors upon request. The summary shall
include for each contract information on benefits provided, a generic
description of the manner in which services are provided, such as
how access to providers is limited, benefit limitations, required
copayments and deductibles, and a telephone number that can be called
for more detailed benefit information. Plans are required to keep
the information contained in the brochure accurate and up to date
and, upon updating the brochure, send copies to solicitors and
solicitor firms with whom the plan contracts to solicit enrollments
or subscriptions.
(2) For each contract, prepare a more detailed evidence of
coverage and make it available to small employers, solicitors, and
solicitor firms upon request. The evidence of coverage shall contain
all information that a prudent buyer would need to be aware of in
making contract selections.
(3) Provide copies of the current summary brochure to all
solicitors and solicitor firms contracting with the plan to solicit
enrollments or subscriptions from small employers.
For purposes of this subdivision, plans that are affiliated plans
or that are eligible to file a consolidated income tax return shall
be treated as one health plan.
(h) Every solicitor or solicitor firm contracting with one or more
plans to solicit enrollments or subscriptions from small employers
shall do all of the following:
(1) When providing information on contracts to a small employer
but making no specific recommendations on particular plan contracts:
(A) Advise the small employer of the plan's obligation to sell to
any small employer any small employer health care service plan
contract, consistent with PPACA, and provide the small employer, upon
request, with the actual rates that would be charged to that
employer for a given contract.
(B) Notify the small employer that the solicitor or solicitor firm
will procure rate and benefit information for the small employer on
any plan contract offered by a plan whose contract the solicitor
sells.
(C) Notify the small employer that upon request the solicitor or
solicitor firm will provide the small employer with the summary
brochure required under paragraph (1) of subdivision (g) for any plan
contract offered by a plan with which the solicitor or solicitor
firm has contracted to solicit enrollments or subscriptions.
(D) Notify the small employer of the availability of coverage and
the availability of tax credits for certain employers consistent with
PPACA and state law, including any rules, regulations, or guidance
issued in connection therewith.
(2) When recommending a particular benefit plan design or designs,
advise the small employer that, upon request, the agent will provide
the small employer with the brochure required by paragraph (1) of
subdivision (g) containing the benefit plan design or designs being
recommended by the agent or broker.
(3) Prior to filing an application for a small employer for a
particular contract:
(A) For each of the plan contracts offered by the plan whose
contract the solicitor or solicitor firm is offering, provide the
small employer with the benefit summary required in paragraph (1) of
subdivision (g) and the premium for that particular employer.
(B) Notify the small employer that, upon request, the solicitor or
solicitor firm will provide the small employer with an evidence of
coverage brochure for each contract the plan offers.
(C) Obtain a signed statement from the small employer
acknowledging that the small employer has received the disclosures
required by this section.
(a) At least 20 business days prior to renewing or
amending a plan contract subject to this article which will be in
force on the operative date of this article, a plan shall file a
notice of material modification with the director in accordance with
the provisions of Section 1352. The notice of material modification
shall include a statement certifying that the plan is in compliance
with Section 1357.512. Any action by the director, as permitted under
Section 1352, to disapprove, suspend, or postpone the plan's use of
a plan contract shall be in writing, specifying the reasons that the
plan contract does not comply with the requirements of this chapter.
(b) At least 20 business days prior to offering a plan contract
subject to this article, all plans shall file a notice of material
modification with the director in accordance with the provisions of
Section 1352. The notice of material modification shall include a
statement certifying that the plan is in compliance with Section
1357.512. Plans that will be offering to a small employer plan
contracts approved by the director prior to the effective date of
this article shall file a notice of material modification in
accordance with this subdivision. Any action by the director, as
permitted under Section 1352, to disapprove, suspend, or postpone the
plan's use of a plan contract shall be in writing, specifying the
reasons that the plan contract does not comply with the requirements
of this chapter.
(c) Each plan shall maintain at its principal place of business
all of the information required to be filed with the director
pursuant to this section.
(d) Nothing in this section shall be construed to limit the
director's authority to enforce the rating practices set forth in
this article.
(a) Health care service plans may enter into contractual
agreements with qualified associations, as defined in subdivision
(b), under which these qualified associations may assume
responsibility for performing specific administrative services, as
defined in this section, for qualified association members. Health
care service plans that enter into agreements with qualified
associations for assumption of administrative services shall
establish uniform definitions for the administrative services that
may be provided by a qualified association or its third-party
administrator. The health care service plan shall permit all
qualified associations to assume one or more of these functions when
the health care service plan determines the qualified association
demonstrates the administrative capacity to assume these functions.
For the purposes of this section, administrative services provided
by qualified associations or their third-party administrators shall
be services pertaining to eligibility determination, enrollment,
premium collection, sales, or claims administration on a per-claim
basis that would otherwise be provided directly by the health care
service plan or through a third-party administrator on a commission
basis or an agent or solicitor workforce on a commission basis. Each
health care service plan that enters into an agreement with any
qualified association for the provision of administrative services
shall offer all qualified associations with which it contracts the
same premium discounts for performing those services the health care
service plan has permitted the qualified association or its
third-party administrator to assume. The health care service plan
shall report to the department its schedule of discounts for each
administrative service.
In no instance may a health care service plan provide discounts to
qualified associations that are in any way intended to, or
materially result in, a reduction in premium charges to the qualified
association due to the health status of the membership of the
qualified association. In addition to any other remedies available to
the director to enforce this chapter, the director may declare a
contract between a health care service plan and a qualified
association for administrative services pursuant to this section null
and void if the director determines any discounts provided to the
qualified association are intended to, or materially result in, a
reduction in premium charges to the qualified association due to the
health status of the membership of the qualified association.
(b) For the purposes of this section, a qualified association is a
nonprofit corporation comprised of a group of individuals or
employers who associate based solely on participation in a specified
profession or industry that conforms to all of the following
requirements:
(1) It accepts for membership any individual or small employer
meeting its membership criteria.
(2) It does not condition membership directly or indirectly on the
health or claims history of any person.
(3) It uses membership dues solely for and in consideration of the
membership and membership benefits, except that the amount of the
dues shall not depend on whether the member applies for or purchases
insurance offered by the association.
(4) It is organized and maintained in good faith for purposes
unrelated to insurance.
(5) It existed on January 1, 1972, and has been in continuous
existence since that date.
(6) It has a constitution and bylaws or other analogous governing
documents that provide for election of the governing board of the
association by its members.
(7) It offered, marketed, or sold health coverage to its members
for 20 continuous years prior to January 1, 1993.
(8) It agrees to offer only to association members any plan
contract.
(9) It agrees to include any member choosing to enroll in the plan
contract offered by the association, provided that the member agrees
to make required premium payments.
(10) It complies with all provisions of this article.
(11) It had at least 10,000 enrollees covered by association
sponsored plans immediately prior to enactment of Chapter 1128 of the
Statutes of 1992.
(12) It applies any administrative cost at an equal rate to all
members purchasing coverage through the qualified association.
(c) A qualified association shall comply with Section 1357.52.