[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5303 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 5303

 To amend the Employee Retirement Income Security Act of 1974 to allow 
health marketplace 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

                           December 20, 2022

   Mr. Paul 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 marketplace 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Health Marketplace for All Act of 
2022''.

SEC. 2. HEALTH MARKETPLACE POOLS DEEMED AN ``EMPLOYER'' FOR PURPOSES OF 
              OFFERING GROUP HEALTH PLANS OR GROUP HEALTH INSURANCE 
              COVERAGE.

    (a) Definition of Employer.--Section 3(5) of the Employee 
Retirement Income Security Act of 1974 (29 U.S.C. 1002(5)) is amended 
by adding at the end the following: ``Such term shall be deemed to 
include, for purposes of offering a group health plan (as defined in 
section 733(a)(1)) or group health insurance coverage (as defined in 
section 733(b)(4)) (which, notwithstanding any other provision of law, 
may include such a plan or coverage covering prescription or 
nonprescription drugs as the only benefit offered by the plan or 
coverage in accordance with section 736(b)(5)(B)), any entity that 
meets the requirements under section 736(b).''.
    (b) Group Health Plans and Group Health Insurance Coverage.--Part 7 
of subtitle B of title I of the Employee Retirement Income Security Act 
of 1974 (29 U.S.C. 1181 et seq.) is amended by adding at the end the 
following:

``SEC. 736. HEALTH MARKETPLACE POOLS DEEMED AN `EMPLOYER' FOR PURPOSES 
              OF OFFERING GROUP HEALTH PLANS OR GROUP HEALTH INSURANCE 
              COVERAGE.

    ``(a) In General.--An entity (referred to in this section as a 
`health marketplace pool') that meets the requirements under subsection 
(b) shall be deemed an employer under section 3(5) for purposes of 
offering a group health plan or group health insurance coverage (which, 
notwithstanding any other provision of law, may include such a plan or 
coverage covering prescription or nonprescription drugs as the only 
benefit offered by the plan or coverage in accordance with subsection 
(b)(5)(B)).
    ``(b) Requirements for Health Marketplace Pools.--The requirements 
under this subsection are each of the following:
            ``(1) Organization.--The health marketplace pool shall--
                    ``(A) be formed and maintained in good faith for a 
                purpose that includes the formation of a risk pool in 
                order to offer group health insurance coverage or a 
                group health plan to its members; and
                    ``(B) not condition membership in the health 
                marketplace pool on any health status-related factor 
                relating to an individual (including an employee of an 
                employer or a dependent of an employee).
            ``(2) Offering group health plans and group health 
        insurance coverage.--
                    ``(A) Different groups.--
                            ``(i) In general.--The health marketplace 
                        pool, which may be in conjunction with a health 
                        insurance issuer that offers group health 
                        insurance coverage through the health 
                        marketplace pool, shall make available a group 
                        health plan or group health insurance coverage 
                        to all members of the health marketplace pool 
                        (and, in the case of members that are 
                        employers, employees of the employers) at rates 
                        that--
                                    ``(I) are established by the health 
                                marketplace pool, or a health insurance 
                                issuer contracting with such health 
                                marketplace pool, on a policy or 
                                product specific basis; and
                                    ``(II) subject to sections 701 and 
                                702, may vary for individuals covered 
                                through the health marketplace pool.
                            ``(ii) Permissible coverage for 
                        dependents.--Such group health plan or group 
                        health insurance coverage may be made available 
                        under clause (i) to any dependents of members 
                        of the health marketplace pool or dependents of 
                        employees of employers that are such members.
                    ``(B) Nondiscrimination in coverage offered.--
                            ``(i) In general.--Subject to clause (ii), 
                        the health marketplace pool may not offer 
                        coverage under a group health plan or group 
                        health insurance coverage to a member of the 
                        health marketplace pool unless the same 
                        coverage is offered to all such members of the 
                        health marketplace pool.
                            ``(ii) Construction.--Nothing in this 
                        subsection shall be construed as requiring a 
                        health insurance issuer or group health plan to 
                        provide coverage outside the service area of 
                        the issuer or plan, or preventing a health 
                        insurance issuer or group health plan from 
                        underwriting or from excluding or limiting the 
                        coverage on any individual, subject to the 
                        requirements under sections 701 and 702.
                    ``(C) Assumption of risk.--The health marketplace 
                pool may provide--
                            ``(i) group health insurance coverage 
                        through a contract with a health insurance 
                        issuer; or
                            ``(ii) a group health plan through self-
                        insurance.
            ``(3) Geographic areas.--Nothing in this subsection shall 
        be construed as preventing the establishment and operation of 
        more than 1 health marketplace pool in a geographic area or as 
        limiting the number of health marketplace pools that may 
        operate in any area.
            ``(4) Provision of administrative services to purchasers.--
        The health marketplace pool may provide administrative services 
        for members. Such services may include accounting, billing, and 
        enrollment information.
            ``(5) Drug coverage.--The group health plan or group health 
        insurance coverage offered by the health marketplace pool may 
        offer--
                    ``(A) drug coverage, including coverage of over-
                the-counter drugs, in combination with other benefits 
                covered by the group health plan or group health 
                insurance coverage; or
                    ``(B) notwithstanding any other provision of law, 
                drug coverage, including coverage of over-the-counter 
                drugs, as the only benefit covered by the group health 
                plan or group health insurance coverage.
            ``(6) Members.--
                    ``(A) In general.--With respect to an individual 
                who is a member of the health marketplace pool--
                            ``(i) the individual may enroll for 
                        coverage under the group health plan or group 
                        health insurance coverage offered by the health 
                        marketplace pool (including, if applicable, 
                        enrollment for coverage for a dependent of such 
                        individual); or
                            ``(ii) the employer of the individual may 
                        enroll the individual for coverage under the 
                        group health plan or group health insurance 
                        coverage offered by the health marketplace pool 
                        (including, if applicable, enrollment for 
                        coverage for a dependent of such individual).
                    ``(B) Eligibility.--An individual shall be eligible 
                to be a member of the health marketplace pool if such 
                individual is--
                            ``(i) a member of an entity that 
                        establishes or joins the health marketplace 
                        pool (or a dependent of such a member, as 
                        applicable);
                            ``(ii) an employee of a member of an entity 
                        described in clause (i) (or a dependent of such 
                        an employee, as applicable); or
                            ``(iii) an employee of an entity (or a 
                        dependant of such an employee, as applicable) 
                        controlled by a member of an entity described 
                        in clause (i).
                    ``(C) Rules for enrollment.--Nothing in this 
                paragraph shall preclude the health marketplace pool 
                from establishing rules of enrollment and reenrollment 
                of members. Such rules shall be applied consistently to 
                all members within the health marketplace pool and 
                shall not be based in any manner on health status-
                related factors in accordance with sections 701 and 
                702.
    ``(c) Determination of Employer and Joint Employer Status.--
Participating in or facilitating a group health plan or group health 
insurance coverage under this section shall not be construed as 
establishing under any Federal or State law--
            ``(1) an employer relationship for any purpose other than 
        offering the group health plan or group health insurance 
        coverage; or
            ``(2) a joint employer relationship for any purpose.
    ``(d) Definition.--In this section, the term `dependent', as 
applied to a group health plan or group health insurance coverage 
offered in a State, shall have the meaning applied to such term with 
respect to such plan or coverage under the State law applying to such 
plan or coverage. Such term may include the spouse and children of the 
individual involved in accordance with such State law.''.

SEC. 3. CONFORMING AMENDMENTS.

    Section 3 of the Employee Retirement Income Security Act of 1974 
(29 U.S.C. 1002) is amended--
            (1) in paragraph (6), by inserting before the period ``, 
        except (with respect to an entity meeting the requirements 
        under section 736(b)) such term includes any member of such 
        entity'';
            (2) in paragraph (21)--
                    (A) in subparagraph (A), by striking ``subparagraph 
                (B)'' and inserting ``subparagraphs (B) and (C)''; and
                    (B) by adding at the end the following:
    ``(C) With respect to a person that is a member of an entity 
(referred to in section 736 and this subparagraph as a `health 
marketplace pool') that meets the requirements of section 736(b) and 
offers a group health plan (as defined in section 733(a)(1)) or group 
health insurance coverage (as defined in section 733(b)(4)) (which, 
notwithstanding any other provision of law, may include such a plan or 
coverage covering prescription or nonprescription drugs as the only 
benefit offered by the plan or coverage), membership in the health 
marketplace pool shall not by itself cause the person to be a fiduciary 
with respect to the group health plan or group health insurance 
coverage.''; and
            (3) in paragraph (40)(A)--
                    (A) in clause (ii), by striking ``, or'' and 
                inserting ``,'';
                    (B) in clause (iii), by striking the period and 
                inserting ``, or''; and
                    (C) by adding at the end the following:
            ``(iv) as a group health plan (as defined in section 
        733(a)(1)), or group health insurance coverage (as defined in 
        section 733(b)(4)), offered by an entity meeting the 
        requirements under section 736(b) (which, notwithstanding any 
        other provision of law, may include such an entity offering 
        such a plan or coverage covering prescription or 
        nonprescription drugs as the only benefit offered by the plan 
        or coverage).''.
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