42 U.S.C. § 300gg-91 — Definitions

Page 1655 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg–91 1 See References in Text note below. 111–148, title I, § 1563(c)(15), formerly § 1562(c)(15), title X, § 10107(b)(1), Mar. 23, 2010, 124 Stat. 269, 911.) Editorial Notes AMENDMENTS 2010—Pub. L. 111–148, § 1563(c)(15)(A), formerly § 1562(c)(15)(A), as renumbered by Pub. L. 111–148, § 10107(b)(1), inserted ‘‘and application’’ after ‘‘Preemp- tion’’ in section catchline. Subsec. (c). Pub. L. 111–148, § 1563(c)(15)(B), formerly § 1562(c)(15)(B), as renumbered by Pub. L. 111–148, § 10107(b)(1), added subsec. (c). 1996—Subsec. (b). Pub. L. 104–204, § 605(b)(3), des- ignated existing provisions as par. (1) and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–204 applicable to health insurance coverage offered, sold, issued, renewed, in ef- fect, or operated in the individual market on or after Jan. 1, 1998, see section 605(c) of Pub. L. 104–204, set out as a note under section 300gg–44 of this title. EFFECTIVE DATE Section applicable with respect to health insurance coverage offered, sold, issued, renewed, in effect, or op- erated in the individual market after June 30, 1997, re- gardless of when a period of creditable coverage occurs, see section 111(b) of Pub. L. 104–191, set out as a note under section 300gg–41 of this title. § 300gg–63. General exceptions (a) Exception for certain benefits The requirements of this part shall not apply to any health insurance coverage in relation to its provision of excepted benefits described in section 300gg–91(c)(1) of this title. (b) Exception for certain benefits if certain con- ditions met The requirements of this part shall not apply to any health insurance coverage in relation to its provision of excepted benefits described in paragraph (2), (3), or (4) of section 300gg–91(c) of this title if the benefits are provided under a separate policy, certificate, or contract of insur- ance. (July 1, 1944, ch. 373, title XXVII, § 2763, formerly § 2747, as added Pub. L. 104–191, title I, § 111(a), Aug. 21, 1996, 110 Stat. 1987; renumbered § 2763, Pub. L. 104–204, title VI, § 605(a)(2), Sept. 26, 1996, 110 Stat. 2941.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable with respect to health insurance coverage offered, sold, issued, renewed, in effect, or op- erated in the individual market after June 30, 1997, re- gardless of when a period of creditable coverage occurs, see section 111(b) of Pub. L. 104–191, set out as a note under section 300gg–41 of this title. PART C—DEFINITIONS; MISCELLANEOUS PROVISIONS § 300gg–91. Definitions (a) Group health plan (1) Definition The term ‘‘group health plan’’ means an em- ployee welfare benefit plan (as defined in sec- tion 3(1) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1002(1)]) to the extent that the plan provides medical care (as defined in paragraph (2)) and including items and services paid for as medical care) to em- ployees or their dependents (as defined under the terms of the plan) directly or through in- surance, reimbursement, or otherwise. Except for purposes of part C of title XI of the Social Security Act (42 U.S.C. 1320d et seq.), such term shall not include any qualified small em- ployer health reimbursement arrangement (as defined in section 9831(d)(2) of title 26). (2) Medical care The term ‘‘medical care’’ means amounts paid for— (A) the diagnosis, cure, mitigation, treat- ment, or prevention of disease, or amounts paid for the purpose of affecting any struc- ture or function of the body, (B) amounts paid for transportation pri- marily for and essential to medical care re- ferred to in subparagraph (A), and (C) amounts paid for insurance covering medical care referred to in subparagraphs (A) and (B). (3) Treatment of certain plans as group health plan for notice provision A program under which creditable coverage described in subparagraph (C), (D), (E), or (F) of section 2701(c)(1) 1 is provided shall be treat- ed as a group health plan for purposes of ap- plying section 2701(e).1 (b) Definitions relating to health insurance (1) Health insurance coverage The term ‘‘health insurance coverage’’ means benefits consisting of medical care (provided directly, through insurance or reim- bursement, or otherwise and including items and services paid for as medical care) under any hospital or medical service policy or cer- tificate, hospital or medical service plan con- tract, or health maintenance organization contract offered by a health insurance issuer. (2) Health insurance issuer The term ‘‘health insurance issuer’’ means an insurance company, insurance service, or insurance organization (including a health maintenance organization, as defined in para- graph (3)) which is licensed to engage in the business of insurance in a State and which is subject to State law which regulates insurance (within the meaning of section 514(b)(2) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1144(b)(2)]). Such term does not include a group health plan. (3) Health maintenance organization The term ‘‘health maintenance organiza- tion’’ means— (A) a Federally qualified health mainte- nance organization (as defined in section 300e(a) of this title), (B) an organization recognized under State law as a health maintenance organization, or Page 1656 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg–91 (C) a similar organization regulated under State law for solvency in the same manner and to the same extent as such a health maintenance organization. (4) Group health insurance coverage The term ‘‘group health insurance coverage’’ means, in connection with a group health plan, health insurance coverage offered in con- nection with such plan. (5) Individual health insurance coverage The term ‘‘individual health insurance cov- erage’’ means health insurance coverage of- fered to individuals in the individual market, but does not include short-term limited dura- tion insurance. (c) Excepted benefits For purposes of this subchapter, the term ‘‘ex- cepted benefits’’ means benefits under one or more (or any combination thereof) of the fol- lowing: (1) Benefits not subject to requirements (A) Coverage only for accident, or disability income insurance, or any combination thereof. (B) Coverage issued as a supplement to li- ability insurance. (C) Liability insurance, including general li- ability insurance and automobile liability in- surance. (D) Workers’ compensation or similar insur- ance. (E) Automobile medical payment insurance. (F) Credit-only insurance. (G) Coverage for on-site medical clinics. (H) Other similar insurance coverage, speci- fied in regulations, under which benefits for medical care are secondary or incidental to other insurance benefits. (2) Benefits not subject to requirements if of- fered separately (A) Limited scope dental or vision benefits. (B) Benefits for long-term care, nursing home care, home health care, community- based care, or any combination thereof. (C) Such other similar, limited benefits as are specified in regulations. (3) Benefits not subject to requirements if of- fered as independent, noncoordinated ben- efits (A) Coverage only for a specified disease or illness. (B) Hospital indemnity or other fixed indem- nity insurance. (4) Benefits not subject to requirements if of- fered as separate insurance policy Medicare supplemental health insurance (as defined under section 1395ss(g)(1) of this title), coverage supplemental to the coverage pro- vided under chapter 55 of title 10, and similar supplemental coverage provided to coverage under a group health plan. (d) Other definitions (1) Applicable State authority The term ‘‘applicable State authority’’ means, with respect to a health insurance issuer in a State, the State insurance commis- sioner or official or officials designated by the State to enforce the requirements of this sub- chapter for the State involved with respect to such issuer. (2) Beneficiary The term ‘‘beneficiary’’ has the meaning given such term under section 3(8) of the Em- ployee Retirement Income Security Act of 1974 [29 U.S.C. 1002(8)]. (3) Bona fide association The term ‘‘bona fide association’’ means, with respect to health insurance coverage of- fered in a State, an association which— (A) has been actively in existence for at least 5 years; (B) has been formed and maintained in good faith for purposes other than obtaining insurance; (C) does not condition membership in the association on any health status-related fac- tor relating to an individual (including an employee of an employer or a dependent of an employee); (D) makes health insurance coverage of- fered through the association available to all members regardless of any health status- related factor relating to such members (or individuals eligible for coverage through a member); (E) does not make health insurance cov- erage offered through the association avail- able other than in connection with a mem- ber of the association; and (F) meets such additional requirements as may be imposed under State law. (4) COBRA continuation provision The term ‘‘COBRA continuation provision’’ means any of the following: (A) Section 4980B of title 26, other than subsection (f)(1) of such section insofar as it relates to pediatric vaccines. (B) Part 6 of subtitle B of title I of the Em- ployee Retirement Income Security Act of 1974 [29 U.S.C. 1161 et seq.], other than sec- tion 609 of such Act [29 U.S.C. 1169]. (C) Subchapter XX of this chapter. (5) Employee The term ‘‘employee’’ has the meaning given such term under section 3(6) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1002(6)]. (6) Employer The term ‘‘employer’’ has the meaning given such term under section 3(5) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1002(5)], except that such term shall in- clude only employers of two or more employ- ees. (7) Church plan The term ‘‘church plan’’ has the meaning given such term under section 3(33) of the Em- ployee Retirement Income Security Act of 1974 [29 U.S.C. 1002(33)]. (8) Governmental plan (A) The term ‘‘governmental plan’’ has the meaning given such term under section 3(32) of Page 1657 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg–91 the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1002(32)] and any Federal governmental plan. (B) FEDERAL GOVERNMENTAL PLAN.—The term ‘‘Federal governmental plan’’ means a governmental plan established or maintained for its employees by the Government of the United States or by any agency or instrumen- tality of such Government. (C) NON-FEDERAL GOVERNMENTAL PLAN.—The term ‘‘non-Federal governmental plan’’ means a governmental plan that is not a Federal gov- ernmental plan. (9) Health status-related factor The term ‘‘health status-related factor’’ means any of the factors described in section 2702(a)(1).1 (10) Network plan The term ‘‘network plan’’ means health in- surance coverage of a health insurance issuer under which the financing and delivery of medical care (including items and services paid for as medical care) are provided, in whole or in part, through a defined set of pro- viders under contract with the issuer. (11) Participant The term ‘‘participant’’ has the meaning given such term under section 3(7) of the Em- ployee Retirement Income Security Act of 1974 [29 U.S.C. 1002(7)]. (12) Placed for adoption defined The term ‘‘placement’’, or being ‘‘placed’’, for adoption, in connection with any place- ment for adoption of a child with any person, means the assumption and retention by such person of a legal obligation for total or partial support of such child in anticipation of adop- tion of such child. The child’s placement with such person terminates upon the termination of such legal obligation. (13) Plan sponsor The term ‘‘plan sponsor’’ has the meaning given such term under section 3(16)(B) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1002(16)(B)]. (14) State The term ‘‘State’’ means each of the several States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. (15) Family member The term ‘‘family member’’ means, with re- spect to any individual— (A) a dependent (as such term is used for purposes of section 2701(f)(2)) 1 of such indi- vidual; and (B) any other individual who is a first-de- gree, second-degree, third-degree, or fourth- degree relative of such individual or of an in- dividual described in subparagraph (A). (16) Genetic information (A) In general The term ‘‘genetic information’’ means, with respect to any individual, information about— (i) such individual’s genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or dis- order in family members of such indi- vidual. (B) Inclusion of genetic services and partici- pation in genetic research Such term includes, with respect to any individual, any request for, or receipt of, ge- netic services, or participation in clinical re- search which includes genetic services, by such individual or any family member of such individual. (C) Exclusions The term ‘‘genetic information’’ shall not include information about the sex or age of any individual. (17) Genetic test (A) In general The term ‘‘genetic test’’ means an analysis of human DNA, RNA, chromosomes, pro- teins, or metabolites, that detects genotypes, mutations, or chromosomal changes. (B) Exceptions The term ‘‘genetic test’’ does not mean— (i) an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes; or (ii) an analysis of proteins or metabo- lites that is directly related to a mani- fested disease, disorder, or pathological condition that could reasonably be de- tected by a health care professional with appropriate training and expertise in the field of medicine involved. (18) Genetic services The term ‘‘genetic services’’ means— (A) a genetic test; (B) genetic counseling (including obtain- ing, interpreting, or assessing genetic infor- mation); or (C) genetic education. (19) Underwriting purposes The term ‘‘underwriting purposes’’ means, with respect to any group health plan, or health insurance coverage offered in connec- tion with a group health plan— (A) rules for, or determination of, eligi- bility (including enrollment and continued eligibility) for benefits under the plan or coverage; (B) the computation of premium or con- tribution amounts under the plan or cov- erage; (C) the application of any pre-existing con- dition exclusion under the plan or coverage; and (D) other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits. (20) Qualified health plan The term ‘‘qualified health plan’’ has the meaning given such term in section 18021(a) of this title. Page 1658 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg–91 2 So in original. Probably should be ‘‘term’’. 3 So in original. 4 So in original. Probably should be capitalized. (21) Exchange The term ‘‘Exchange’’ means an American Health Benefit Exchange established under section 18031 of this title. (e) Definitions relating to markets and small em- ployers For purposes of this subchapter: (1) Individual market (A) In general The term ‘‘individual market’’ means the market for health insurance coverage of- fered to individuals other than in connection with a group health plan. (B) Treatment of very small groups (i) In general Subject to clause (ii), such terms 2 in- cludes coverage offered in connection with a group health plan that has fewer than two participants as current employees on the first day of the plan year. (ii) State exception Clause (i) shall not apply in the case of a State that elects to regulate the cov- erage described in such clause as coverage in the small group market. (2) Large employer The term ‘‘large employer’’ means, in con- nection with a group health plan with respect to a calendar year and a plan year, an em- ployer who employed an average of at least 51 employees on business days during the pre- ceding calendar year and who employs at least 2 employees on the first day of the plan year. (3) Large group market The term ‘‘large group market’’ means the health insurance market under which individ- uals obtain health insurance coverage (di- rectly or through any arrangement) on behalf of themselves (and their dependents) through a group health plan maintained by a large em- ployer. (4) Small employer The term ‘‘small employer’’ means, in con- nection with a group health plan with respect to a calendar year and a plan year, an em- ployer who employed an average of at least 1 but not more than 50 employees on business days during the preceding calendar year and who employs at least 1 employees 3 on the first day of the plan year. (5) Small group market The term ‘‘small group market’’ means the health insurance market under which individ- uals obtain health insurance coverage (di- rectly or through any arrangement) on behalf of themselves (and their dependents) through a group health plan maintained by a small em- ployer. (6) Application of certain rules in determina- tion of employer size For purposes of this subsection— (A) Application of aggregation rule for em- ployers all 4 persons treated as a single employer under subsection (b), (c), (m), or (o) of sec- tion 414 of title 26 shall be treated as 1 em- ployer. (B) Employers not in existence in preceding year In the case of an employer which was not in existence throughout the preceding cal- endar year, the determination of whether such employer is a small or large employer shall be based on the average number of em- ployees that it is reasonably expected such employer will employ on business days in the current calendar year. (C) Predecessors Any reference in this subsection to an em- ployer shall include a reference to any pred- ecessor of such employer. (7) State option to extend definition of small employer Notwithstanding paragraphs (2) and (4), nothing in this section shall prevent a State from applying this subsection by treating as a small employer, with respect to a calendar year and a plan year, an employer who em- ployed an average of at least 1 but not more than 100 employees on business days during the preceding calendar year and who employs at least 1 employee on the first day of the plan year. (July 1, 1944, ch. 373, title XXVII, § 2791, as added Pub. L. 104–191, title I, § 102(a), Aug. 21, 1996, 110 Stat. 1972; amended Pub. L. 110–233, title I, § 102(a)(4), May 21, 2008, 122 Stat. 890; Pub. L. 111–148, title I, § 1563(b), (c)(16), formerly § 1562(b), (c)(16), title X, § 10107(b)(1), Mar. 23, 2010, 124 Stat. 264, 269, 911; Pub. L. 114–60, § 2(b), Oct. 7, 2015, 129 Stat. 543; Pub. L. 114–255, div. C, title XVIII, § 18001(c)(1), Dec. 13, 2016, 130 Stat. 1344.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsec. (a)(1), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Part C of title XI of the Act is classified generally to part C (§ 1320d et seq.) of subchapter XI of chapter 7 of this title. For complete classification of this Act to the Code, see sec- tion 1305 of this title and Tables. Section 2701, referred to in subsecs. (a)(3) and (d)(15)(A), is a reference to section 2701 of act July 1, 1944. Section 2701, which was classified to section 300gg of this title, was renumbered section 2704, effective for plan years beginning on or after Jan. 1, 2014, with cer- tain exceptions, and amended, by Pub. L. 111–148, title I, §§ 1201(2), 1563(c)(1), formerly § 1562(c)(1), title X, § 10107(b)(1), Mar. 23, 2010, 124 Stat. 154, 264, 911, and was transferred to section 300gg–3 of this title. A new sec- tion 2701 of act July 1, 1944, related to fair health insur- ance premiums, was added, effective for plan years be- ginning on or after Jan. 1, 2014, and amended, by Pub. L. 111–148, title I, § 1201(4), title X, § 10103(a), Mar. 23, 2010, 124 Stat. 155, 892, and is classified to section 300gg of this title. The Employee Retirement Income Security Act of 1974, referred to in subsec. (d)(4)(B), is Pub. L. 93–406, Sept. 2, 1974, 88 Stat. 829. Part 6 of subtitle B of title I Page 1659 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg–93 of the Act is classified generally to part 6 (§ 1161 et seq.) of subtitle B of subchapter I of chapter 18 of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 29 and Tables. Section 2702, referred to in subsec. (d)(9), is a ref- erence to section 2702 of act July 1, 1944. Section 2702, which was classified to section 300gg–1 of this title, was amended by Pub. L. 111–148, title I, § 1201(3), Mar. 23, 2010, 124 Stat. 154, and was transferred to subsecs. (b) to (f) of section 300gg–4 of this title, effective for plan years beginning on or after Jan. 1, 2014. A new section 2702, related to guaranteed availability of coverage, was added by Pub. L. 111–148, title I, § 1201(4), Mar. 23, 2010, 124 Stat. 156, effective for plan years beginning on or after Jan. 1, 2014, and is classified to section 300gg–1 of this title. AMENDMENTS 2016—Subsec. (a)(1). Pub. L. 114–255 inserted at end ‘‘Except for purposes of part C of title XI of the Social Security Act (42 U.S.C. 1320d et seq.), such term shall not include any qualified small employer health reim- bursement arrangement (as defined in section 9831(d)(2) of title 26).’’ 2015—Subsec. (e)(2). Pub. L. 114–60, § 2(b)(1), sub- stituted ‘‘51’’ for ‘‘101’’. Subsec. (e)(4). Pub. L. 114–60, § 2(b)(2), substituted ‘‘50’’ for ‘‘100’’. Subsec. (e)(7). Pub. L. 114–60, § 2(b)(3), added par. (7). 2010—Subsec. (d)(20), (21). Pub. L. 111–148, § 1563(b), for- merly § 1562(b), as renumbered by Pub. L. 111–148, § 10107(b)(1), added pars. (20) and (21). Subsec. (e)(2). Pub. L. 111–148, § 1563(c)(16)(A), for- merly § 1562(c)(16)(A), as renumbered by Pub. L. 111–148, § 10107(b)(1), substituted ‘‘101’’ for ‘‘51’’. Subsec. (e)(4). Pub. L. 111–148, § 1563(c)(16)(B), formerly § 1562(c)(16)(B), as renumbered by Pub. L. 111–148, § 10107(b)(1), substituted ‘‘100’’ for ‘‘50’’ and ‘‘at least 1’’ for ‘‘at least 2’’ in two places. 2008—Subsec. (d)(15) to (19). Pub. L. 110–233 added pars. (15) to (19). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–255 applicable to plan years beginning after Dec. 31, 2016, see section 18001(c)(3) of Pub. L. 114–255, set out as a note under sec- tion 300bb–8 of this title. EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–233 applicable, with re- spect to group health plans and health insurance cov- erage offered in connection with group health plans, for plan years beginning after the date that is one year after May 21, 2008, and, with respect to health insurance coverage offered, sold, issued, renewed, in effect, or op- erated in the individual market, after the date that is one year after May 21, 2008, see section 102(d)(2) of Pub. L. 110–233, set out as a note under section 300gg–21 of this title. § 300gg–92. Regulations The Secretary, consistent with section 104 of the Health Care Portability and Accountability Act of 1996, may promulgate such regulations as may be necessary or appropriate to carry out the provisions of this subchapter. The Secretary may promulgate any interim final rules as the Secretary determines are appropriate to carry out this subchapter. (July 1, 1944, ch. 373, title XXVII, § 2792, as added Pub. L. 104–191, title I, § 102(a), Aug. 21, 1996, 110 Stat. 1976.) Editorial Notes REFERENCES IN TEXT Section 104 of the Health Care Portability and Ac- countability Act of 1996, referred to in text, probably means section 104 of the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104–191, set out below. Statutory Notes and Related Subsidiaries ASSURING COORDINATION AMONG DEPARTMENTS OF TREASURY, HEALTH AND HUMAN SERVICES, AND LABOR Pub. L. 104–191, title I, § 104, Aug. 21, 1996, 110 Stat. 1978, provided that: ‘‘The Secretary of the Treasury, the Secretary of Health and Human Services, and the Sec- retary of Labor shall ensure, through the execution of an interagency memorandum of understanding among such Secretaries, that— ‘‘(1) regulations, rulings, and interpretations issued by such Secretaries relating to the same matter over which two or more such Secretaries have responsi- bility under this subtitle [subtitle A (§§ 101–104) of title I of Pub. L. 104–191, enacting this section, sec- tions 300gg, 300gg–1, 300gg–11 to 300gg–13, 300gg–21 to 300gg–23, and 300gg–91 of this title, and sections 1181 to 1183 and 1191 to 1191c of Title 29, Labor, amending sections 300e and 300bb–8 of this title and sections 1003, 1021, 1022, 1024, 1132, 1136, and 1144 of Title 29, and enacting provisions set out as notes under section 300gg of this title and section 1181 of Title 29] (and the amendments made by this subtitle and section 401 [enacting sections 9801 to 9806 of Title 26, Internal Revenue Code]) are administered so as to have the same effect at all times; and ‘‘(2) coordination of policies relating to enforcing the same requirements through such Secretaries in order to have a coordinated enforcement strategy that avoids duplication of enforcement efforts and as- signs priorities in enforcement.’’ § 300gg–93. Health insurance consumer informa- tion (a) In general The Secretary shall award grants to States to enable such States (or the Exchanges operating in such States) to establish, expand, or provide support for— (1) offices of health insurance consumer as- sistance; or (2) health insurance ombudsman programs. (b) Eligibility (1) In general To be eligible to receive a grant, a State shall designate an independent office of health insurance consumer assistance, or an ombuds- man, that, directly or in coordination with State health insurance regulators and con- sumer assistance organizations, receives and responds to inquiries and complaints con- cerning health insurance coverage with re- spect to Federal health insurance require- ments and under State law. (2) Criteria A State that receives a grant under this sec- tion shall comply with criteria established by the Secretary for carrying out activities under such grant. (c) Duties The office of health insurance consumer as- sistance or health insurance ombudsman shall— (1) assist with the filing of complaints and appeals, including filing appeals with the in-