American Healthshare Plans Act of 2020

II 116TH CONGRESS 2D SESSION S. 3610 To amend the Employee Retirement Income Security Act of 1974 to allow health share pools to be deemed an employer under section 3(5) of such Act for purposes of offering a group health plan or group health insurance coverage, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 5, 2020 Mr. PAUL (for himself, Mr. ROMNEY, Mr. LANKFORD, Mrs. BLACKBURN, Ms. ERNST, Mr. BRAUN, and Mr. SASSE) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Employee Retirement Income Security Act of 1974 to allow health share pools to be deemed an employer under section 3(5) of such Act for purposes of offering a group health plan or group health insurance coverage, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘American Healthshare 4 Plans Act of 2020’’. 5 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3610 IS SEC. 2. HEALTHSHARE POOLS DEEMED AN ‘‘EMPLOYER’’ 1 FOR PURPOSES OF OFFERING GROUP 2 HEALTH PLANS OR GROUP HEALTH INSUR- 3 ANCE COVERAGE. 4 (a) DEFINITION OF EMPLOYER.—Section 3(5) of the 5 Employee Retirement Income Security Act of 1974 (29 6 U.S.C. 1002(5)) is amended by adding at the end the fol- 7 lowing: ‘‘Such term shall be deemed to include, for pur- 8 poses of offering a group health plan (as defined in section 9 733(a)(1)) or group health insurance coverage (as defined 10 in section 733(b)(4)) (which, notwithstanding any other 11 provision of law, may include such a plan or coverage cov- 12 ering prescription or nonprescription drugs as the only 13 benefit offered by the plan or coverage in accordance with 14 section 735(b)(5)(B)), any entity that meets the require- 15 ments under section 735(b).’’. 16 (b) GROUP HEALTH PLANS AND GROUP HEALTH IN- 17 SURANCE COVERAGE.—Part 7 of subtitle B of title I of 18 the Employee Retirement Income Security Act of 1974 19 (29 U.S.C. 1181 et seq.) is amended by adding at the end 20 the following: 21 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3610 IS ‘‘SEC. 735. HEALTHSHARE POOLS DEEMED AN ‘EMPLOYER’ 1 FOR PURPOSES OF OFFERING GROUP 2 HEALTH PLANS OR GROUP HEALTH INSUR- 3 ANCE COVERAGE. 4 ‘‘(a) IN GENERAL.—An entity (referred to in this sec- 5 tion as a ‘healthshare pool’) that meets the requirements 6 under subsection (b) shall be deemed an employer under 7 section 3(5) for purposes of offering a group health plan 8 or group health insurance coverage (which, notwith- 9 standing any other provision of law, may include such a 10 plan or coverage covering prescription or nonprescription 11 drugs as the only benefit offered by the plan or coverage 12 in accordance with subsection (b)(5)(B)). 13 ‘‘(b) REQUIREMENTS FOR HEALTHSHARE POOLS.— 14 The requirements under this subsection are each of the 15 following: 16 ‘‘(1) ORGANIZATION.—The healthshare pool 17 shall— 18 ‘‘(A) be formed and maintained in good 19 faith for a purpose that includes the formation 20 of a risk pool in order to offer group health in- 21 surance coverage or a group health plan to its 22 members; and 23 ‘‘(B) not condition membership in the 24 healthshare pool on any health status-related 25 factor relating to an individual (including an 26 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3610 IS employee of an employer or a dependent of an 1 employee). 2 ‘‘(2) OFFERING GROUP HEALTH PLANS AND 3 GROUP HEALTH INSURANCE COVERAGE.— 4 ‘‘(A) DIFFERENT GROUPS.— 5 ‘‘(i) IN GENERAL.—The healthshare 6 pool, which may be in conjunction with a 7 health insurance issuer that offers group 8 health insurance coverage through the 9 healthshare pool, shall make available a 10 group health plan or group health insur- 11 ance coverage to all members of the 12 healthshare pool (and, in the case of mem- 13 bers that are employers, employees of the 14 employers) at rates that— 15 ‘‘(I) are established by the 16 healthshare pool, or a health insur- 17 ance issuer contracting with such 18 healthshare pool, on a policy or prod- 19 uct specific basis; and 20 ‘‘(II) subject to sections 701 and 21 702, may vary for individuals covered 22 through the healthshare pool. 23 ‘‘(ii) PERMISSIBLE COVERAGE FOR 24 DEPENDENTS.—Such group health plan or 25 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3610 IS group health insurance coverage may be 1 made available under clause (i) to any de- 2 pendents of members of the healthshare 3 pool or dependents of employees of employ- 4 ers that are such members. 5 ‘‘(B) NONDISCRIMINATION IN COVERAGE 6 OFFERED.— 7 ‘‘(i) IN GENERAL.—Subject to clause 8 (ii), the healthshare pool may not offer 9 coverage under a group health plan or 10 group health insurance coverage to a mem- 11 ber of the healthshare pool unless the same 12 coverage is offered to all such members of 13 the healthshare pool. 14 ‘‘(ii) CONSTRUCTION.—Nothing in 15 this subsection shall be construed as re- 16 quiring a health insurance issuer or group 17 health plan to provide coverage outside the 18 service area of the issuer or plan, or pre- 19 venting a health insurance issuer or group 20 health plan from underwriting or from ex- 21 cluding or limiting the coverage on any in- 22 dividual, subject to the requirements under 23 sections 701 and 702. 24 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3610 IS ‘‘(C) ASSUMPTION OF RISK.—The 1 healthshare pool may provide— 2 ‘‘(i) group health insurance coverage 3 through a contract with a health insurance 4 issuer; or 5 ‘‘(ii) a group health plan through self- 6 insurance. 7 ‘‘(3) GEOGRAPHIC AREAS.—Nothing in this 8 subsection shall be construed as preventing the es- 9 tablishment and operation of more than 1 10 healthshare pool in a geographic area or as limiting 11 the number of healthshare pools that may operate in 12 any area. 13 ‘‘(4) PROVISION OF ADMINISTRATIVE SERVICES 14 TO PURCHASERS.—The healthshare pool may pro- 15 vide administrative services for members. Such serv- 16 ices may include accounting, billing, and enrollment 17 information. 18 ‘‘(5) DRUG COVERAGE.—The group health plan 19 or group health insurance coverage offered by the 20 healthshare pool may offer— 21 ‘‘(A) drug coverage, including coverage of 22 over-the-counter drugs, in combination with 23 other benefits covered by the group health plan 24 or group health insurance coverage; or 25 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3610 IS ‘‘(B) notwithstanding any other provision 1 of law, drug coverage, including coverage of 2 over-the-counter drugs, as the only benefit cov- 3 ered by the group health plan or group health 4 insurance coverage. 5 ‘‘(6) MEMBERS.— 6 ‘‘(A) IN GENERAL.—With respect to an in- 7 dividual who is a member of the healthshare 8 pool— 9 ‘‘(i) the individual may enroll for cov- 10 erage under the group health plan or 11 group health insurance coverage offered by 12 the healthshare pool (including, if applica- 13 ble, enrollment for coverage for a depend- 14 ent of such individual); or 15 ‘‘(ii) the employer of the individual 16 may enroll the individual for coverage 17 under the group health plan or group 18 health insurance coverage offered by the 19 healthshare pool (including, if applicable, 20 enrollment for coverage for a dependent of 21 such individual). 22 ‘‘(B) ELIGIBILITY.—An individual shall be 23 eligible to be a member of the healthshare pool 24 if such individual is— 25 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3610 IS ‘‘(i) a member of an entity that estab- 1 lishes or joins the healthshare pool (or a 2 dependent of such a member, as applica- 3 ble); 4 ‘‘(ii) an employee of a member of an 5 entity described in clause (i) (or a depend- 6 ent of such an employee, as applicable); or 7 ‘‘(iii) an employee of an entity (or a 8 dependant of such an employee, as applica- 9 ble) controlled by a member of an entity 10 described in clause (i). 11 ‘‘(C) RULES FOR ENROLLMENT.—Nothing 12 in this paragraph shall preclude the healthshare 13 pool from establishing rules of enrollment and 14 reenrollment of members. Such rules shall be 15 applied consistently to all members within the 16 healthshare pool and shall not be based in any 17 manner on health status-related factors in ac- 18 cordance with sections 701 and 702. 19 ‘‘(c) DETERMINATION OF EMPLOYER AND JOINT EM- 20 PLOYER STATUS.—Participating in or facilitating a group 21 health plan or group health insurance coverage under this 22 section shall not be construed as establishing under any 23 Federal or State law— 24 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 3610 IS ‘‘(1) an employer relationship for any purpose 1 other than offering the group health plan or group 2 health insurance coverage; or 3 ‘‘(2) a joint employer relationship for any pur- 4 pose. 5 ‘‘(d) DEFINITION.—In this section, the term ‘depend- 6 ent’, as applied to a group health plan or group health 7 insurance coverage offered in a State, shall have the mean- 8 ing applied to such term with respect to such plan or cov- 9 erage under the State law applying to such plan or cov- 10 erage. Such term may include the spouse and children of 11 the individual involved in accordance with such State 12 law.’’. 13 SEC. 3. CONFORMING AMENDMENTS. 14 Section 3 of the Employee Retirement Income Secu- 15 rity Act of 1974 (29 U.S.C. 1002) is amended— 16 (1) in paragraph (6), by inserting before the pe- 17 riod ‘‘, except (with respect to an entity meeting the 18 requirements under section 735(b)) such term in- 19 cludes any member of such entity’’; 20 (2) in paragraph (21)— 21 (A) in subparagraph (A), by striking ‘‘sub- 22 paragraph (B)’’ and inserting ‘‘subparagraphs 23 (B) and (C)’’; and 24 (B) by adding at the end the following: 25 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 3610 IS ‘‘(C) With respect to a person that is a member of 1 an entity (referred to in section 735 and this subpara- 2 graph as a ‘healthshare pool’) that meets the requirements 3 of subsection (b) of such section and offers a group health 4 plan (as defined in section 733(a)(1)) or group health in- 5 surance coverage (as defined in section 733(b)(4)) (which, 6 notwithstanding any other provision of law, may include 7 such a plan or coverage covering prescription or non- 8 prescription drugs as the only benefit offered by the plan 9 or coverage), membership in the healthshare pool shall not 10 by itself cause the person to be a fiduciary with respect 11 to the group health plan or group health insurance cov- 12 erage.’’; and 13 (3) in paragraph (40)(A)— 14 (A) in clause (ii), by striking ‘‘, or’’ and in- 15 serting ‘‘,’’; 16 (B) in clause (iii), by striking the period 17 and inserting ‘‘, or’’; and 18 (C) by adding at the end the following: 19 ‘‘(iv) as a group health plan (as defined in sec- 20 tion 733(a)(1)), or group health insurance coverage 21 (as defined in section 733(b)(4)), offered by an enti- 22 ty meeting the requirements under section 735(b) 23 (which, notwithstanding any other provision of law, 24 may include such an entity offering such a plan or 25 VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 3610 IS coverage covering prescription or nonprescription 1 drugs as the only benefit offered by the plan or cov- 2 erage).’’. 3 Æ VerDate Sep 11 2014 18:36 May 07, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S3610.IS S3610 pamtmann on DSKBC07HB2PROD with BILLS