42 U.S.C. § 300gg — Fair health insurance premiums

Page 1597 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg 1 So in original. 1 So in original. No subsec. (b) has been enacted. require the provision of data to public health authorities. (July 1, 1944, ch. 373, title XXVI, § 2695G, as added Pub. L. 111–87, § 13, Oct. 30, 2009, 123 Stat. 2902.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective as if enacted on Sept. 30, 2009, see section 2(a)(3)(B) of Pub. L. 111–87, set out as an Effec- tive Date of 2009 Amendment; Revival of Section note under section 300ff–11 of this title. § 300ff–139. Injunctions regarding violation of prohibition (a) In general The Secretary may, in any court of competent jurisdiction, commence a civil action for the purpose of obtaining temporary or permanent injunctive relief with respect to any violation of this part. (b) Facilitation of information on violations The Secretary shall establish an administra- tive process for encouraging emergency response employees to provide information to the Sec- retary regarding violations of this part. As ap- propriate, the Secretary shall investigate al- leged such 1 violations and seek appropriate in- junctive relief. (July 1, 1944, ch. 373, title XXVI, § 2695H, as added Pub. L. 111–87, § 13, Oct. 30, 2009, 123 Stat. 2902.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective as if enacted on Sept. 30, 2009, see section 2(a)(3)(B) of Pub. L. 111–87, set out as an Effec- tive Date of 2009 Amendment; Revival of Section note under section 300ff–11 of this title. § 300ff–140. Applicability of part This part shall not apply in a State if the chief executive officer of the State certifies to the Secretary that the law of the State is substan- tially consistent with this part. (July 1, 1944, ch. 373, title XXVI, § 2695I, as added Pub. L. 111–87, § 13, Oct. 30, 2009, 123 Stat. 2903.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective as if enacted on Sept. 30, 2009, see section 2(a)(3)(B) of Pub. L. 111–87, set out as an Effec- tive Date of 2009 Amendment; Revival of Section note under section 300ff–11 of this title. SUBCHAPTER XXV—REQUIREMENTS RE- LATING TO HEALTH INSURANCE COV- ERAGE Editorial Notes CODIFICATION Pub. L. 104–204, title VI, § 604(a)(1), Sept. 26, 1996, 110 Stat. 2938, substituted ‘‘REQUIREMENTS RELATING TO HEALTH INSURANCE COVERAGE’’ for ‘‘ASSUR- ING PORTABILITY, AVAILABILITY, AND RENEW- ABILITY OF HEALTH INSURANCE COVERAGE’’ as subchapter heading. PRIOR PROVISIONS A prior subchapter XXV (§ 300aaa et seq.), comprised of title XXVII of the Public Health Service Act, act July 1, 1944, ch. 373, §§ 2701 to 2714, was renumbered title II, part B, §§ 231 to 244, of the Public Health Service Act, and transferred to part B (§ 238 et seq.) of sub- chapter I of this chapter. PART A—INDIVIDUAL AND GROUP MARKET REFORMS Editorial Notes CODIFICATION Pub. L. 111–148, title I, § 1001(1), Mar. 23, 2010, 124 Stat. 130, substituted ‘‘Individual and Group Market Re- forms’’ for ‘‘Group Market Reforms’’ in part heading. SUBPART I—GENERAL REFORM Editorial Notes CODIFICATION Pub. L. 111–148, title I, §§ 1201(1), 1255, formerly § 1253, title X, § 10103(e), (f)(1), Mar. 23, 2010, 124 Stat. 154, 162, 895, substituted ‘‘SUBPART I—GENERAL REFORM’’ for ‘‘SUBPART 1—PORTABILITY, ACCESS, AND RENEWABILITY REQUIREMENTS’’ in subpart heading, effective for plan years beginning on or after Jan. 1, 2014. § 300gg. Fair health insurance premiums (a) 1 Prohibiting discriminatory premium rates (1) In general With respect to the premium rate charged by a health insurance issuer for health insur- ance coverage offered in the individual or small group market— (A) such rate shall vary with respect to the particular plan or coverage involved only by— (i) whether such plan or coverage covers an individual or family; (ii) rating area, as established in accord- ance with paragraph (2); (iii) age, except that such rate shall not vary by more than 3 to 1 for adults (con- sistent with section 300gg–6(c) of this title); and (iv) tobacco use, except that such rate shall not vary by more than 1.5 to 1; and (B) such rate shall not vary with respect to the particular plan or coverage involved by any other factor not described in subpara- graph (A). (2) Rating area (A) In general Each State shall establish 1 or more rating areas within that State for purposes of ap- plying the requirements of this subchapter. (B) Secretarial review The Secretary shall review the rating areas established by each State under sub- paragraph (A) to ensure the adequacy of such areas for purposes of carrying out the requirements of this subchapter. If the Sec- retary determines a State’s rating areas are not adequate, or that a State does not estab- lish such areas, the Secretary may establish rating areas for that State. Page 1598 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg (3) Permissible age bands The Secretary, in consultation with the Na- tional Association of Insurance Commis- sioners, shall define the permissible age bands for rating purposes under paragraph (1)(A)(iii). (4) Application of variations based on age or tobacco use With respect to family coverage under a group health plan or health insurance cov- erage, the rating variations permitted under clauses (iii) and (iv) of paragraph (1)(A) shall be applied based on the portion of the pre- mium that is attributable to each family member covered under the plan or coverage. (5) Special rule for large group market If a State permits health insurance issuers that offer coverage in the large group market in the State to offer such coverage through the State Exchange (as provided for under sec- tion 18032(f)(2)(B) of this title), the provisions of this subsection shall apply to all coverage offered in such market (other than self-insured group health plans offered in such market) in the State. (July 1, 1944, ch. 373, title XXVII, § 2701, as added and amended Pub. L. 111–148, title I, § 1201(4), title X, § 10103(a), Mar. 23, 2010, 124 Stat. 155, 892.) Editorial Notes PRIOR PROVISIONS A prior section 300gg, act July 1, 1944, ch. 373, title XXVII, § 2701, as added Pub. L. 104–191, title I, § 102(a), Aug. 21, 1996, 110 Stat. 1955; amended Pub. L. 111–3, title III, § 311(b)(2), Feb. 4, 2009, 123 Stat. 70; Pub. L. 111–5, div. B, title I, § 1899D(c), Feb. 17, 2009, 123 Stat. 426; Pub. L. 111–344, title I, § 114(c), Dec. 29, 2010, 124 Stat. 3615; Pub. L. 112–40, title II, § 242(a)(3), Oct. 21, 2011, 125 Stat. 419, which related to increased portability through lim- itation on preexisting condition exclusions, was renum- bered section 2704 of act July 1, 1944, effective for plan years beginning on or after Jan. 1, 2014, with certain ex- ceptions, 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. Another prior section 2701 of act July 1, 1944, was suc- cessively renumbered by subsequent acts and trans- ferred, see section 238 of this title. AMENDMENTS 2010—Subsec. (a)(5). Pub. L. 111–148, § 10103(a), inserted ‘‘(other than self-insured group health plans offered in such market)’’ after ‘‘such market’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 111–148, title I, § 1255, formerly § 1253, title X, § 10103(e), (f)(1), Mar. 23, 2010, 124 Stat. 162, 895, provided that: ‘‘This subtitle [subtitle C (§§ 1201–1255) of title I of Pub. L. 111–148, enacting subchapter II of chapter 157 of this title and sections 300gg to 300gg–2 and 300gg–4 to 300gg–7 of this title, and amending sections 300gg–1 and 300gg–4 of this title and transferring former section 300gg of this title to section 300gg–3 of this title] (and the amendments made by this subtitle) shall become effective for plan years beginning on or after January 1, 2014, except that— ‘‘(1) section 1251 [enacting section 18011 of this title] shall take effect on the date of enactment of this Act [Mar. 23, 2010]; and ‘‘(2) the provisions of section 2704 of the Public Health Service Act [42 U.S.C. 300gg–3] (as amended by section 1201), as they apply to enrollees who are under 19 years of age, shall become effective for plan years beginning on or after the date that is 6 months after the date of enactment of this Act [Mar. 23, 2010].. [sic]’’ Pub. L. 104–191, title I, § 102(c), Aug. 21, 1996, 110 Stat. 1976, provided that: ‘‘(1) IN GENERAL.—Except as provided in this sub- section, part A of title XXVII of the Public Health Service Act [42 U.S.C. 300gg et seq.] (as added by sub- section (a)) shall apply with respect to group health plans, and health insurance coverage offered in connec- tion with group health plans, for plan years beginning after June 30, 1997. ‘‘(2) DETERMINATION OF CREDITABLE COVERAGE.— ‘‘(A) PERIOD OF COVERAGE.— ‘‘(i) IN GENERAL.—Subject to clause (ii), no period before July 1, 1996, shall be taken into account under part A of title XXVII of the Public Health Service Act [42 U.S.C. 300gg et seq.] (as added by this section) in determining creditable coverage. ‘‘(ii) SPECIAL RULE FOR CERTAIN PERIODS.—The Secretary of Health and Human Services, con- sistent with section 104 [42 U.S.C. 300gg–92 note], shall provide for a process whereby individuals who need to establish creditable coverage for periods be- fore July 1, 1996, and who would have such coverage credited but for clause (i) may be given credit for creditable coverage for such periods through the presentation of documents or other means. ‘‘(B) CERTIFICATIONS, ETC.— ‘‘(i) IN GENERAL.—Subject to clauses (ii) and (iii), subsection (e) of section 2701 [now 2704] of the Pub- lic Health Service Act [42 U.S.C. 300gg–3(e)] (as added by this section) shall apply to events occur- ring after June 30, 1996. ‘‘(ii) NO CERTIFICATION REQUIRED TO BE PROVIDED BEFORE JUNE 1, 1997.—In no case is a certification re- quired to be provided under such subsection before June 1, 1997. ‘‘(iii) CERTIFICATION ONLY ON WRITTEN REQUEST FOR EVENTS OCCURRING BEFORE OCTOBER 1, 1996.—In the case of an event occurring after June 30, 1996, and before October 1, 1996, a certification is not re- quired to be provided under such subsection unless an individual (with respect to whom the certifi- cation is otherwise required to be made) requests such certification in writing. ‘‘(C) TRANSITIONAL RULE.—In the case of an indi- vidual who seeks to establish creditable coverage for any period for which certification is not required be- cause it relates to an event occurring before June 30, 1996— ‘‘(i) the individual may present other credible evi- dence of such coverage in order to establish the pe- riod of creditable coverage; and ‘‘(ii) a group health plan and a health insurance issuer shall not be subject to any penalty or en- forcement action with respect to the plan’s or issuer’s crediting (or not crediting) such coverage if the plan or issuer has sought to comply in good faith with the applicable requirements under the amendments made by this section [enacting this section and sections 300gg–1, 300gg–11 to 300gg–13, 300gg–21 to 300gg–23, 300gg–91, and 300gg–92 of this title and amending sections 300e and 300bb–8 of this title]. ‘‘(3) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREE- MENTS.—Except as provided in paragraph (2)(B), in the case of a group health plan maintained pursuant to 1 or more collective bargaining agreements between em- ployee representatives and one or more employers rati- fied before the date of the enactment of this Act [Aug. 21, 1996], part A of title XXVII of the Public Health Service Act [42 U.S.C. 300gg et seq.] (other than section 2701(e) [now 2704(e)] thereof [42 U.S.C. 300gg–3(e)]) shall not apply to plan years beginning before the later of— ‘‘(A) the date on which the last of the collective bargaining agreements relating to the plan termi- nates (determined without regard to any extension Page 1599 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300gg–1 1 So in original. thereof agreed to after the date of the enactment of this Act), or ‘‘(B) July 1, 1997. For purposes of subparagraph (A), any plan amendment made pursuant to a collective bargaining agreement re- lating to the plan which amends the plan solely to con- form to any requirement of such part shall not be treated as a termination of such collective bargaining agreement. ‘‘(4) TIMELY REGULATIONS.—The Secretary of Health and Human Services, consistent with section 104 [42 U.S.C. 300gg–92 note], shall first issue by not later than April 1, 1997, such regulations as may be necessary to carry out the amendments made by this section [enact- ing this section and sections 300gg–1, 300gg–11 to 300gg–13, 300gg–21 to 300gg–23, 300gg–91, and 300gg–92 of this title and amending sections 300e and 300bb–8 of this title] and section 111 [enacting sections 300gg–41 to 300gg–44 and 300gg–61 to 300gg–63 of this title]. ‘‘(5) LIMITATION ON ACTIONS.—No enforcement action shall be taken, pursuant to the amendments made by this section, against a group health plan or health in- surance issuer with respect to a violation of a require- ment imposed by such amendments before January 1, 1998, or, if later, the date of issuance of regulations re- ferred to in paragraph (4), if the plan or issuer has sought to comply in good faith with such require- ments.’’ CONGRESSIONAL FINDINGS RELATING TO EXERCISE OF COMMERCE CLAUSE AUTHORITY; SEVERABILITY Pub. L. 104–191, title I, § 195, Aug. 21, 1996, 110 Stat. 1991, provided that: ‘‘(a) FINDINGS RELATING TO EXERCISE OF COMMERCE CLAUSE AUTHORITY.—Congress finds the following in re- lation to the provisions of this title [enacting this sub- chapter and sections 1181 to 1183 and 1191 to 1191c of Title 29, Labor, amending sections 233, 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 this section, section 300gg–92 of this title, and section 1181 of Title 29]: ‘‘(1) Provisions in group health plans and health in- surance coverage that impose certain preexisting condition exclusions impact the ability of employees to seek employment in interstate commerce, thereby impeding such commerce. ‘‘(2) Health insurance coverage is commercial in na- ture and is in and affects interstate commerce. ‘‘(3) It is a necessary and proper exercise of Con- gressional authority to impose requirements under this title on group health plans and health insurance coverage (including coverage offered to individuals previously covered under group health plans) in order to promote commerce among the States. ‘‘(4) Congress, however, intends to defer to States, to the maximum extent practicable, in carrying out such requirements with respect to insurers and health maintenance organizations that are subject to State regulation, consistent with the provisions of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1001 et seq.]. ‘‘(b) SEVERABILITY.—If any provision of this title or the application of such provision to any person or cir- cumstance is held to be unconstitutional, the remain- der of this title and the application of the provisions of such to any person or circumstance shall not be af- fected thereby.’’ HEALTH COVERAGE AVAILABILITY STUDIES Pub. L. 104–191, title I, § 191, Aug. 21, 1996, 110 Stat. 1987, directed the Secretary of Health and Human Serv- ices to provide for a study on the effectiveness of the provisions of title I of Pub. L. 104–191 and the various State laws, in ensuring the availability of reasonably priced health coverage to employers and individuals and a study on access to, and choice of, health care pro- viders and the cost and cost-effectiveness to health in- surance issuers of providing access to out-of-network providers, and the potential impact of providing such access on the cost and quality of health insurance cov- erage, and to report to the appropriate committees of Congress on each of such studies not later than Jan. 1, 2000. § 300gg–1. Guaranteed availability of coverage (a) Guaranteed issuance of coverage in the indi- vidual and group market Subject to subsections (b) through (e),1 each health insurance issuer that offers health insur- ance coverage in the individual or group market in a State must accept every employer and indi- vidual in the State that applies for such cov- erage. (b) Enrollment (1) Restriction A health insurance issuer described in sub- section (a) may restrict enrollment in cov- erage described in such subsection to open or special enrollment periods. (2) Establishment A health insurance issuer described in sub- section (a) shall, in accordance with the regu- lations promulgated under paragraph (3), es- tablish special enrollment periods for quali- fying events (under section 1163 of title 29). (3) Regulations The Secretary shall promulgate regulations with respect to enrollment periods under para- graphs (1) and (2). (c) Special rules for network plans (1) In general In the case of a health insurance issuer that offers health insurance coverage in the group and individual market through a network plan, the issuer may— (A) limit the employers that may apply for such coverage to those with eligible individ- uals who live, work, or reside in the service area for such network plan; and (B) within the service area of such plan, deny such coverage to such employers and individuals if the issuer has demonstrated, if required, to the applicable State authority that— (i) it will not have the capacity to de- liver services adequately to enrollees of any additional groups or any additional in- dividuals because of its obligations to ex- isting group contract holders and enroll- ees, and (ii) it is applying this paragraph uni- formly to all employers and individuals without regard to the claims experience of those individuals, employers and their em- ployees (and their dependents) or any health status-related factor relating to such individuals 1 employees and depend- ents. (2) 180-day suspension upon denial of coverage An issuer, upon denying health insurance coverage in any service area in accordance with paragraph (1)(B), may not offer coverage in the group or individual market within such