26.1-36.3-06. Availability of coverage

26.1-36.3-06. Availability of coverage

1. a. As a condition of transacting business in this state with small employers, every

small employer carrier shall actively offer small employers all health benefit plans

it actively markets to small employers in this state.

b. (1) Subject to subdivision a of subsection 1, a small employer carrier shall issue

any health benefit plan to any eligible small employer that applies for the

plan and agrees to make the required premium payments and to satisfy the

other reasonable provisions of the health benefit plan not inconsistent with

this chapter and section 26.1-36-37.2. However, a carrier may not be

required to issue a health benefit plan to a self-employed individual who is

covered by, or is eligible for coverage under, a health benefit plan offered by

an employer.

(2) In the case of a small employer carrier that establishes more than one class

of business pursuant to section 26.1-36.3-03, the small employer carrier

shall maintain and issue to eligible small employers all health benefit plans it

actively markets to small employers. A small employer carrier may apply

reasonable criteria in determining whether to accept a small employer into a

class of business if the criteria are not intended to discourage or prevent

acceptance of small employers applying for a health benefit plan, are not

related to a health status-related factor of the small employer, and are

applied consistently to all small employers applying for coverage in the class

of business. The small employer carrier shall provide for the acceptance of

all eligible small employers into one or more classes of business. This

paragraph does not apply to a class of business into which the small

employer carrier is no longer enrolling new small businesses.

2. Health benefit plans covering small employers must comply with the following:

a. A health benefit plan may impose a pre-existing condition exclusion only if:

(1) The exclusion relates to a condition, regardless of the cause of the

condition, for which medical advice, diagnosis, care, or treatment was

recommended or received within the six-month period immediately

preceding the effective date of coverage;

(2) The exclusion extends for a period of not more than twelve months after the

effective date of coverage;

(3) The exclusion does not relate to pregnancy as a pre-existing condition; and

(4) The exclusion does not treat genetic information as a pre-existing condition

in the absence of a diagnosis of a condition related to such information.

b. A small employer carrier shall reduce any time period applicable to a pre-existing

condition exclusion or limitation period by the aggregate of periods the individual

was covered by qualifying previous coverage, if any, if the qualifying previous

coverage was continuous until at least sixty-three days prior to the effective date

of the new coverage. Any waiting period applicable to an individual for coverage

under a group health benefit plan may not be taken into account in determining

the period of continuous coverage. This subdivision does not preclude application

of an employer waiting period applicable to all new enrollees under the health

benefit plan. Small employer carriers shall credit coverage by either a standard

method or an alternative method. The commissioner shall adopt rules for

crediting coverage under the standard and alternative method. These rules must

be consistent with the Health Insurance Portability and Accountability Act of 1996

[Pub. L. 104-191; 110 Stat. 1936; 29 U.S.C. 1181 et seq.] and any federal rules

adopted pursuant thereto.

c. A health benefit plan may exclude coverage for late enrollees for the greater of

eighteen months or for an eighteen-month pre-existing condition exclusion;

however, if both a period of exclusion from coverage and a pre-existing condition

exclusion are applicable to a late enrollee, the combined period may not exceed

6; 29 U.S.C. 1181 et seq.] and any federal rules

adopted pursuant thereto.

c. A health benefit plan may exclude coverage for late enrollees for the greater of

eighteen months or for an eighteen-month pre-existing condition exclusion;

however, if both a period of exclusion from coverage and a pre-existing condition

exclusion are applicable to a late enrollee, the combined period may not exceed

eighteen months from the date the individual enrolls for coverage under the

health benefit plan.

d. (1) Except as provided in this subdivision, a small employer carrier shall apply

requirements used to determine whether to provide coverage to a small

employer, including requirements for minimum participation of eligible

employees and minimum employer contributions, uniformly among all small

employers with the same number of eligible employees who are applying for

coverage or receiving coverage from the small employer carrier.

(2) A small employer carrier may vary application of minimum participation

requirements and minimum employer contribution requirements only by the

size of the small employer group.

(3) (a) Except as provided in subparagraph b, a small employer carrier, in

applying minimum participation requirements with respect to a small

employer, may not consider employees or dependents who have

qualifying existing coverage in determining whether the applicable

percentage of participation is met. For purposes of determining the

applicable percentage of participation under this subparagraph only,

individual health benefit plans are not included in the definition of

"qualifying existing coverage" under section 26.1-36.3-01.

(b) With respect to a small employer, with ten or fewer eligible employees,

a small employer carrier may consider employees or dependents who

have coverage under another health benefit plan sponsored by the

small employer in applying minimum participation requirements.

(4) A small employer carrier may not increase any requirement for minimum

employee participation or any requirement for minimum employer

contribution applicable to a small employer at any time after the small

employer has been accepted for coverage.

e. (1) If a small employer carrier offers coverage to a small employer, the small

employer carrier shall offer coverage to all of the eligible employees of a

small employer and their dependents. A small employer carrier may not offer

coverage only to certain individuals in a small employer group or only to part

of the group, except in the case of late enrollees as provided in

subdivision c.

(2) Except as permitted under subsection 1 and this subsection, a small

employer carrier may not modify a health benefit plan with respect to a small

employer or any eligible employee or dependent through riders,

endorsements, or otherwise, to restrict or exclude coverage for certain

diseases or medical conditions otherwise covered by the health benefit plan.

3. a. A small employer carrier offering coverage through a network plan is not required

to offer coverage or accept applications under subsection 1 to a small employer

if:

(1) The small employer does not have eligible individuals who live, work, or

reside in the service area for such network plan; or

age for certain

diseases or medical conditions otherwise covered by the health benefit plan.

3. a. A small employer carrier offering coverage through a network plan is not required

to offer coverage or accept applications under subsection 1 to a small employer

if:

(1) The small employer does not have eligible individuals who live, work, or

reside in the service area for such network plan; or

(2) The small employer does have eligible individuals who live, work, or reside

in the service area for the network plan, but the carrier has demonstrated, if

required, to the commissioner that it will not have the capacity to deliver

services adequately to enrollees of any additional groups because of its

obligations to existing group contractholders and enrollees, and that it is

applying this paragraph uniformly to all employers without regard to the

claims experience of those employers and their employees and their

dependents or any health status-related factor relating to such employees

and dependents.

b. A small employer carrier, upon denying health insurance coverage in any service

area in accordance with paragraph 2 of subdivision a, may not offer coverage in

the small employer market within the service area for a period of one hundred

eighty days after the date the coverage is denied.

4. A small employer carrier is not required to provide coverage to small employers

pursuant to subsection 1 for any period of time for which the commissioner determines

that the carrier does not have the financial reserves to underwrite additional coverage

and is applying this section uniformly without regard to the claims experience of small

employers or any health status-related factor relating to employees and their

dependents. A small employer carrier denying coverage in accordance with this

section may not offer coverage in connection with a group health benefit plan in the

small group market for a period of one hundred eighty days after the health coverage

is denied or until the carrier has demonstrated to the commissioner sufficient financial

reserves to underwrite financial coverage, whichever is later.

5. Subsection 1 does not apply to health benefit plans offered by a small employer carrier

if the carrier makes the health benefit plans available in the small employer market

only through one or more associations.