[Congressional Record Volume 163, Number 127 (Thursday, July 27, 2017)]
[Senate]
[Pages S4449-S4450]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 413. Mr. CRUZ submitted an amendment intended to be proposed to
amendment SA 267 proposed by Mr. McConnell to the bill H.R. 1628, to
provide for reconciliation pursuant to title II of the concurrent
resolution on the budget for fiscal year 2017; which was ordered to lie
on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. SMALL BUSINESS HEALTH PLANS.
(a) Tax Treatment of Small Business Health Plans.--A small
business health plan (as defined in section 801(a) of the
Employee Retirement Income Security Act of 1974) shall be
treated--
(1) as a group health plan (as defined in section 2791 of
the Public Health Service Act (42 U.S.C. 300gg-91)) for
purposes of applying title XXVII of the Public Health Service
Act (42 U.S.C. 300gg et seq.) and title XXII of such Act (42
U.S.C. 300bb-1);
(2) as a group health plan (as defined in section
5000(b)(1) of the Internal Revenue Code of 1986) for purposes
of applying sections 4980B and 5000 and chapter 100 of the
Internal Revenue Code of 1986; and
(3) as a group health plan (as defined in section 733(a)(1)
of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1191b(a)(1))) for purposes of applying parts 6 and 7
of title I of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1161 et seq.).
(b) Rules.--Subtitle B of title I of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1021 et
seq.) is amended by adding at the end the following new part:
``PART 8--RULES GOVERNING SMALL BUSINESS RISK SHARING POOLS
``SEC. 801. SMALL BUSINESS HEALTH PLANS.
``(a) In General.--For purposes of this part, the term
`small business health plan' means a fully insured group
health plan, offered by a health insurance issuer in the
large group market, whose sponsor is described in subsection
(b).
``(b) Sponsor.--The sponsor of a group health plan is
described in this subsection if such sponsor--
``(1) is a qualified sponsor and receives certification by
the Secretary;
``(2) is organized and maintained in good faith, with a
constitution or bylaws specifically stating its purpose and
providing for periodic meetings on at least an annual basis;
``(3) is established as a permanent entity;
``(4) is established for a purpose other than providing
health benefits to its members, such as an organization
established as a bona fide trade association, franchise, or
section 7705 organization; and
``(5) does not condition membership on the basis of a
minimum group size.
``SEC. 802. FILING FEE AND CERTIFICATION OF SMALL BUSINESS
HEALTH PLANS.
``(a) Filing Fee.--A small business health plan shall pay
to the Secretary at the time of filing an application for
certification under subsection (b) a filing fee in the amount
of $5,000, which shall be available to the Secretary for the
sole purpose of administering the certification procedures
applicable with respect to small business health plans.
``(b) Certification.--
``(1) In general.--Not later than 6 months after the date
of enactment of this part, the Secretary shall prescribe by
interim final rule a procedure under which the Secretary--
``(A) will certify a qualified sponsor of a small business
health plan, upon receipt of an application that includes the
information described in paragraph (2);
``(B) may provide for continued certification of small
business health plans under this part;
``(C) shall provide for the revocation of a certification
if the applicable authority finds that the small business
health plan involved fails to comply with the requirements of
this part;
``(D) shall conduct oversight of certified plan sponsors,
including periodic review, and consistent with section 504,
applying the requirements of sections 518, 519, and 520; and
``(E) will consult with a State with respect to a small
business health plan domiciled in such State regarding the
Secretary's authority under this part and other enforcement
authority under sections 502 and 504.
``(2) Information to be included in application for
certification.--An application for certification under this
part meets the requirements of this section only if it
includes, in a manner and form which shall be prescribed by
the applicable authority by regulation, at least the
following information:
``(A) Identifying information.
``(B) States in which the plan intends to do business.
``(C) Bonding requirements.
``(D) Plan documents.
``(E) Agreements with service providers.
``(3) Requirements for certified plan sponsors.--Not later
than 6 months after the date of enactment of this part, the
Secretary shall prescribe by interim final rule requirements
for certified plan sponsors that include requirements
regarding--
``(A) structure and requirements for boards of trustees or
plan administrators;
``(B) notification of material changes; and
``(C) notification for voluntary termination.
``(c) Filing Notice of Certification With States.--A
certification granted under this part to a small business
health plan shall not be effective unless written notice of
such certification is filed by the plan sponsor with the
applicable State authority of each State in which the small
business health plan operates.
``(d) Expedited and Deemed Certification.--
``(1) In general.--If the Secretary fails to act on a
complete application for certification under this section
within 90 days of receipt of such complete application, the
applying small business health plan sponsor shall be deemed
certified until such time as the Secretary may deny for cause
the application for certification.
``(2) Penalty.--The Secretary may assess a penalty against
the board of trustees, plan administrator, and plan sponsor
(jointly and severally) of a small business health plan
sponsor that is deemed certified under paragraph (1) of up to
$500,000 in the event the Secretary determines that the
application for certification of such small business health
plan sponsor was willfully or with gross negligence
incomplete or inaccurate.
``SEC. 803. PARTICIPATION AND COVERAGE REQUIREMENTS.
``(a) Covered Employers and Individuals.--The requirements
of this subsection
[[Page S4450]]
are met with respect to a small business health plan if,
under the terms of the plan--
``(1) each participating employer must be--
``(A) a member of the sponsor;
``(B) the sponsor; or
``(C) an affiliated member of the sponsor, except that, in
the case of a sponsor which is a professional association or
other individual-based association, if at least one of the
officers, directors, or employees of an employer, or at least
one of the individuals who are partners in an employer and
who actively participates in the business, is a member or
such an affiliated member of the sponsor, participating
employers may also include such employer; and
``(2) all individuals commencing coverage under the plan
after certification under this part must be--
``(A) active or retired owners (including self-employed
individuals with or without employees), officers, directors,
or employees of, or partners in, participating employers; or
``(B) the dependents of individuals described in
subparagraph (A).
``(b) Participating Employers.--In applying requirements
relating to coverage renewal, a participating employer shall
not be deemed to be a plan sponsor.
``(c) Prohibition of Discrimination Against Employers and
Employees Eligible to Participate.--The requirements of this
subsection are met with respect to a small business health
plan if--
``(1) under the terms of the plan, no participating
employer may provide health insurance coverage in the
individual market for any employee not covered under the
plan, if such exclusion of the employee from coverage under
the plan is based on a health status-related factor with
respect to the employee and such employee would, but for such
exclusion on such basis, be eligible for coverage under the
plan; and
``(2) information regarding all coverage options available
under the plan is made readily available to any employer
eligible to participate.
``SEC. 804. DEFINITIONS; RENEWAL.
``For purposes of this part:
``(1) Affiliated member.--The term `affiliated member'
means, in connection with a sponsor--
``(A) a person who is otherwise eligible to be a member of
the sponsor but who elects an affiliated status with the
sponsor, or
``(B) in the case of a sponsor with members which consist
of associations, a person who is a member or employee of any
such association and elects an affiliated status with the
sponsor.
``(2) Applicable state authority.--The term `applicable
State authority' means, with respect to a health insurance
issuer in a State, the State insurance commissioner or
official or officials designated by the State to enforce the
requirements of title XXVII of the Public Health Service Act
for the State involved with respect to such issuer.
``(3) Franchisor; franchisee.--The terms `franchisor' and
`franchisee' have the meanings given such terms for purposes
of sections 436.2(a) through 436.2(c) of title 16, Code of
Federal Regulations (including any such amendments to such
regulation after the date of enactment of this part) and, for
purposes of this part, franchisor or franchisee employers
participating in such a group health plan shall not be
treated as the employer, co-employer, or joint employer of
the employees of another participating franchisor or
franchisee employer for any purpose.
``(4) Health plan terms.--The terms `group health plan',
`health insurance coverage', and `health insurance issuer'
have the meanings given such terms in section 733.
``(5) Individual market.--
``(A) In general.--The term `individual market' means the
market for health insurance coverage offered 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 term
includes coverage offered in connection with a group health
plan that has fewer than 2 participants as current employees
or participants described in section 732(d)(3) on the first
day of the plan year.
``(ii) State exception.--Clause (i) shall not apply in the
case of health insurance coverage offered in a State if such
State regulates the coverage described in such clause in the
same manner and to the same extent as coverage in the small
group market (as defined in section 2791(e)(5) of the Public
Health Service Act) is regulated by such State.
``(6) Participating employer.--The term `participating
employer' means, in connection with a small business health
plan, any employer, if any individual who is an employee of
such employer, a partner in such employer, or a self-employed
individual who is such employer with or without employees (or
any dependent, as defined under the terms of the plan, of
such individual) is or was covered under such plan in
connection with the status of such individual as such an
employee, partner, or self-employed individual in relation to
the plan.
``(7) Section 7705 organization.--The term `section 7705
organization' means an organization providing services for a
customer pursuant to a contract meeting the conditions of
subparagraphs (A), (B), (C), (D), and (E) (but not (F)) of
section 7705(e)(2) of the Internal Revenue Code of 1986,
including an entity that is part of a section 7705
organization control group . For purposes of this part, any
reference to `member' shall include a customer of a section
7705 organization except with respect to references to a
`member' or `members' in paragraph (1).''.
(c) Preemption Rules.--Section 514 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1144) is
amended by adding at the end the following:
``(f) The provisions of this title shall supersede any and
all State laws insofar as they may now or hereafter preclude
a health insurance issuer from offering health insurance
coverage in connection with a small business health plan
which is certified under part 8.''.
(d) Plan Sponsor.--Section 3(16)(B) of such Act (29 U.S.C.
102(16)(B)) is amended by adding at the end the following new
sentence: ``Such term also includes a person serving as the
sponsor of a small business health plan under part 8.''.
(e) Savings Clause.--Section 731(c) of such Act is amended
by inserting ``or part 8'' after ``this part''.
(f) Treatment of Income From Small Business Health Plans.--
Section 513 of the Internal Revenue Code of 1986 is amended
by adding at the end the following new subsection:
``(k) Small Business Health Plans.--The term `unrelated
trade or business' does not include the sponsoring of a small
business health plan (as defined in section 801 of the
Employee Retirement Income Security Act of 1974).''.
(g) Effective Date.--The amendments made by this section
shall take effect 1 year after the date of the enactment of
this Act. The Secretary of Labor shall first issue all
regulations necessary to carry out the amendments made by
this section within 6 months after the date of the enactment
of this Act.
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