[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3167 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 3167

To amend the Employee Retirement Income Security Act of 1974 to clarify 
the treatment of certain association health plans as employers, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 30, 2023

   Mr. Braun 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 clarify 
the treatment of certain association health plans as employers, 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 ``Multiple Employer Welfare 
Arrangement Act'' or the ``MEWA Act''.

SEC. 2. TREATMENT OF GROUP OR ASSOCIATION OF EMPLOYERS.

    (a) In General.--Section 3(5) of the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1002(5)) is amended--
            (1) by striking ``The term'' and inserting ``(A) The 
        term''; and
            (2) by adding at the end the following:
    ``(B) For purposes of subparagraph (A), a group or association of 
employers shall be treated as an `employer', regardless of whether the 
employers composing such group or association are in the same industry, 
trade, or profession, if such group or association--
            ``(i)(I) has established and maintains an employee welfare 
        benefit plan that is a group health plan (as defined in section 
        733(a)(1));
            ``(II) provides coverage under such plan to at least 51 
        employees after all of the employees employed by all of the 
        employer members of such group or association have been 
        aggregated and counted together as described in subparagraph 
        (D);
            ``(III) has been actively in existence for at least 2 
        years;
            ``(IV) has been formed and maintained in good faith for 
        purposes other than providing medical care (as defined in 
        section 733(a)(2)) through the purchase of insurance or 
        otherwise;
            ``(V) does not condition membership in the group or 
        association on any health status-related factor (as described 
        in section 702(a)(1)) relating to any individual;
            ``(VI) makes coverage under such plan available to all 
        employer members of such group or association regardless of any 
        health status-related factor (as described in section 
        702(a)(1)) relating to such employer members;
            ``(VII) does not provide coverage under such plan to any 
        individual other than an employee of an employer member of such 
        group or association;
            ``(VIII) has established a governing board with by-laws or 
        other similar indications of formality to manage and operate 
        such plan in both form and substance, of which at least 75 
        percent of the board members shall be made up of employer 
        members of such group or association participating in the plan 
        that are duly elected by each participating employer member 
        casting 1 vote during a scheduled election;
            ``(IX) is not a health insurance issuer (as defined in 
        section 733(b)(2)), and is not owned or controlled by such a 
        health insurance issuer or by a subsidiary or affiliate of such 
        a health insurance issuer, other than to the extent such a 
        health insurance issuer may participate in the group or 
        association as a member;
            ``(ii) is structured in good faith with any set of criteria 
        to qualify for such treatment in any advisory opinion issued 
        prior to the date of enactment of the Multiple Employer Welfare 
        Arrangement Act; or
            ``(iii) meets any other set of criteria to qualify for such 
        treatment that the Secretary by regulation may provide.
    ``(C)(i) For purposes of subparagraph (B), a self-employed 
individual shall be treated as--
            ``(I) an employer who may become a member of a group or 
        association of employers;
            ``(II) an employee who may participate in an employee 
        welfare benefit plan established and maintained by such group 
        or association; and
            ``(III) a participant of such plan subject to the 
        eligibility determination and monitoring requirements set forth 
        in clause (iii).
    ``(ii) For purposes of this subparagraph, the term `self-employed 
individual' means an individual who--
            ``(I) does not have any common law employees;
            ``(II) has a bona fide ownership right in a trade or 
        business, regardless of whether such trade or business is 
        incorporated or unincorporated;
            ``(III) earns wages (as defined in section 3121(a) of the 
        Internal Revenue Code of 1986) or self-employment income (as 
        defined in section 1402(b) of such Code) from such trade or 
        business; and
            ``(IV) works at least 10 hours a week or 40 hours per month 
        providing personal services to such trade or business.
    ``(iii) The board of a group or association of employers shall--
            ``(I) initially determine whether an individual meets the 
        requirements under clause (ii) to be considered to a self-
        employed individual for the purposes of being treated as an--
                    ``(aa) employer member of such group or association 
                (in accordance with clause (i)(I)); and
                    ``(bb) employee who may participate in the employee 
                welfare benefit plan established and maintained by such 
                group or association (in accordance with clause 
                (i)(II));
            ``(II) through reasonable monitoring procedures, 
        periodically determine whether the individual continues to meet 
        such requirements; and
            ``(III) if the board determines that an individual no 
        longer meets such requirements, not make such plan coverage 
        available to such individual (or dependents thereof) for any 
        plan year following the plan year during which the board makes 
        such determination. If, subsequent to a determination that an 
        individual no longer meets such requirements, such individual 
        furnishes evidence of satisfying such requirements, such 
        individual (and dependents thereof) shall be eligible to 
        receive plan coverage.
    ``(D) For purposes of subparagraph (B), all of the employees 
(including self-employed individuals) employed by all of the employer 
members (including self-employed individuals) of a group or association 
of employers shall be--
            ``(i) treated as participants in a single plan multiple 
        employer welfare arrangement; and
            ``(ii) aggregated and counted together for purposes of any 
        regulation of an employee welfare benefit plan established and 
        maintained by such group or association.''.
    (b) Determination of Employer or Joint Employer Status.--The 
provision of employee welfare benefit plan coverage by a group or 
association of employers shall not be construed as evidence for 
establishing an employer or joint employer relationship under any 
Federal or State law.

SEC. 3. RULES APPLICABLE TO EMPLOYEE WELFARE BENEFIT PLANS ESTABLISHED 
              AND MAINTAINED BY A GROUP OR ASSOCIATION OF EMPLOYERS.

    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. RULES APPLICABLE TO EMPLOYEE WELFARE BENEFIT PLANS 
              ESTABLISHED AND MAINTAINED BY A GROUP OR ASSOCIATION OF 
              EMPLOYERS.

    ``(a) Premium Rates for a Group or Association of Employers.--
            ``(1)(A) In the case of an employee welfare benefit plan 
        established and maintained by a group or association of 
        employers described in section 3(5)(B), such plan may, to the 
        extent not prohibited under State law--
                    ``(i) establish base premium rates formed on an 
                actuarially sound, modified community rating 
                methodology that considers the pooling of all plan 
                participant claims; and
                    ``(ii) utilize the specific risk profile of each 
                employer member of such group or association to 
                determine contribution rates for each such employer 
                member's share of a premium by actuarially adjusting 
                above or below the established base premium rates.
            ``(B) For purposes of paragraph (1), the term `employer 
        member' means--
                    ``(i) an employer who is a member of such group or 
                association of employers and employs at least 1 common 
                law employee; or
                    ``(ii) a group made up solely of self-employed 
                individuals, within which all of the self-employed 
                individual members of such group or association are 
                aggregated together as a single employer member group, 
                provided the group includes at least 20 self-employed 
                individual members.
            ``(2) In the event a group or association is made up solely 
        of self-employed individuals (and no employers with at least 1 
        common law employee are members of such group or association), 
        the employee welfare benefit plan established by such group or 
        association shall--
                    ``(A) treat all self-employed individuals who are 
                members of such group or association as a single risk 
                pool;
                    ``(B) pool all plan participant claims; and
                    ``(C) charge each plan participant the same premium 
                rate.
    ``(b) Discrimination and Pre-Existing Condition Protections.--An 
employee welfare benefit plan established and maintained by a group or 
association of employers described in section 3(5)(B) shall be 
prohibited from--
            ``(1) establishing any rule for eligibility (including 
        continued eligibility) of any individual (including an employee 
        of an employer member or a self-employed individual, or a 
        dependent of such employee or self-employed individual) to 
        enroll for benefits under the terms of the plan that 
        discriminates based on any health status-related factor that 
        relates to such individual (consistent with the rules under 
        section 702(a)(1));
            ``(2) requiring an individual (including an employee of an 
        employer member or a self-employed individual, or a dependent 
        of such employee or self-employed individual), as a condition 
        of enrollment or continued enrollment under the plan, to pay a 
        premium or contribution that is greater than the premium or 
        contribution for a similarly situated individual enrolled in 
        the plan based on any health status-related factor that relates 
        to such individual (consistent with the rules under section 
        702(b)(1)); and
            ``(3) denying coverage under such plan on the basis of a 
        pre-existing condition (consistent with the rules under section 
        2704 of the Public Health Service Act).''.

SEC. 4. RULE OF CONSTRUCTION.

    Nothing in this Act shall be construed to exempt a group health 
plan which is an employee welfare benefit plan offered through a group 
or association of employers from the requirements of part 7 of subtitle 
B of title I of the Employee Retirement Income Security Act of 1974 (29 
U.S.C. 1181 et. seq.), including the provisions of part A of title 
XXVII of the Public Health Service Act as incorporated by reference 
into this Act through section 715.
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