MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Insurance; Public Health and Welfare
By: Senator(s) Clarke, Hopson, Collins, Hudson, Burton, Lee (35th), Chassaniol, Ward, McDaniel, Watson, Jackson (15th), Kirby, Fillingane, Yancey
AN ACT TO CREATE THE "MISSISSIPPI HEALTH BENEFIT EXCHANGE ACT"; TO DEFINE CERTAIN TERMS USED IN THE ACT; TO ESTABLISH THE EXCHANGE AS A NOT-FOR-PROFIT CORPORATION WITH A LEGAL EXISTENCE SEPARATE FROM THAT OF THE STATE OF MISSISSIPPI; TO ESTABLISH A BOARD OF DIRECTORS OF THE EXCHANGE AND TO PROVIDE FOR ITS MEMBERSHIP; TO AUTHORIZE THE BOARD TO PERFORM CERTAIN ACTS; TO REQUIRE THE BOARD TO APPOINT AN EXECUTIVE DIRECTOR OF THE EXCHANGE; TO PRESCRIBE THE DUTIES OF THE EXCHANGE; TO REQUIRE THE EXCHANGE TO MAKE QUALIFIED HEALTH PLANS AVAILABLE TO QUALIFIED INDIVIDUALS AND QUALIFIED EMPLOYERS BEGINNING WITH EFFECTIVE DATES ON OR BEFORE JANUARY 1, 2014; TO AUTHORIZE THE EXCHANGE TO CHARGE ASSESSMENTS OR USER FEES TO HEALTH CARRIERS; TO AUTHORIZE THE DEPARTMENT OF INSURANCE TO PROMULGATE REGULATIONS TO IMPLEMENT AND ENFORCE THE PROVISIONS OF THE ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Health Benefit Exchange Act."
SECTION 2. The purpose of this act is to provide for the establishment of the Mississippi Health Benefit Exchange to facilitate the purchase and sale of qualified health plans in the individual market in this state, and to provide for the establishment of a Small Employer Exchange to assist qualified small employers in this state in facilitating the enrollment of their employees in qualified health plans offered in the small group market. The intent of the exchange is to reduce the number of uninsured, provide a transparent consumer-driven marketplace and assist individuals with access to programs, premium assistance tax credits and cost-sharing reductions.
SECTION 3. For purposes of this act:
(a) "Board" means the Board of Directors for the Mississippi Health Benefit Exchange.
(b) "Commissioner" means the Commissioner of Insurance of the State of Mississippi.
(c) "Department" means the Mississippi Department of Insurance.
(d) "Educated health care consumer" means an individual who is knowledgeable about the health care system, and has background or experience in making informed decisions regarding health, medical and scientific matters.
(e) "Exchange" means the Mississippi Health Benefit Exchange established pursuant to Section 4 of this act.
(f) "Federal Act" means the federal Patient Protection and Affordable Care Act (Public Law 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), and any amendments thereto, or regulations or guidance issued under those acts.
(g) (i) "Health benefit plan" means a policy, contract, certificate or agreement offered or issued by a health carrier to provide, deliver, arrange for, pay for or reimburse any of the costs of health care services.
(ii) "Health benefit plan" does not include:
1. Coverage only for accident, or disability income insurance, or any combination thereof;
2. Coverage issued as a supplement to liability insurance;
3. Liability insurance, including general liability insurance and automobile liability insurance;
4. Workers' compensation or similar insurance;
5. Automobile medical payment insurance;
6. Credit-only insurance;
7. Coverage for on-site medical clinics; or
8. Other similar insurance coverage, specified in federal regulations issued pursuant to Public Law 104-191, under which benefits for health care services are secondary or incidental to other insurance benefits.
(iii) "Health benefit plan" does not include the following benefits if they are provided under a separate policy, certificate or contract of insurance or are otherwise not an integral part of the plan:
1. Limited scope dental or vision benefits;
2. Benefits for long-term care, nursing home care, home health care, community-based care, or any combination thereof; or
3. Other similar, limited benefits specified in federal regulations issued pursuant to Public Law 104-191.
(iv) "Health benefit plan" does not include the following benefits if the benefits are provided under a separate policy, certificate or contract of insurance, there is no coordination between the provision of the benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor, and the benefits are paid with respect to an event without regard to whether benefits are provided with respect to such an event under any group health plan maintained by the same plan sponsor:
1. Coverage only for a specified disease or illness; or
2. Hospital indemnity or other fixed indemnity insurance.
(v) "Health benefit plan" does not include the following if offered as a separate policy, certificate or contract of insurance:
1. Medicare supplemental health insurance as defined under Section 1882(g)(1) of the Social Security Act;
2. Coverage supplemental to the coverage provided under Chapter 55 of Title 10, United States Code (Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)); or
3. Similar supplemental coverage provided to coverage under a group health plan.
(h) "Health carrier" or "carrier" means an entity subject to the insurance laws and regulations of this state, or subject to the jurisdiction of the department, that contracts or offers to contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services, including a sickness and accident insurance company, a health maintenance organization, a nonprofit hospital and health service corporation, or any other entity providing a plan of health insurance, health benefits or health services.
(i) "Qualified dental plan" means a limited scope dental plan that has been certified by the exchange.
(j) "Qualified employer" means a small employer that elects to make its full-time employees eligible for one or more qualified health plans offered through the Small Employer Exchange, and at the option of the employer, some or all of its part-time employees, provided that the employer:
(i) Has its principal place of business in the State of Mississippi and elects to provide coverage through the Small Employer Exchange to all of its eligible employees, wherever employed; or
(ii) Elects to provide coverage through the Small Employer Exchange to all of its eligible employees who are principally employed in this state.
(k) "Qualified health plan" means a health benefit plan that has in effect a certification that the plan meets the criteria for certification set by state law or department regulations, or both.
(l) "Qualified individual" means an individual, including a minor, who:
(i) Is seeking to enroll in a qualified health plan offered to individuals through the exchange;
(ii) Resides in the State of Mississippi;
(iii) At the time of enrollment, is not incarcerated, other than incarceration pending the disposition of charges; and
(iv) Is, and is reasonably expected to be, for the entire period for which enrollment is sought, a citizen or national of the United States or an alien lawfully present in the United States.
(m) "Secretary" means the Secretary of the United States Department of Health and Human Services.
(n) (i) "Small employer" means an employer that employed an average of not more than fifty (50) employees during the preceding calendar year.
(ii) Beginning on January 1, 2016, "small employer" means an employer that employed an average of not more than one hundred (100) employees during the preceding calendar year.
(iii) For purposes of this paragraph (n):
1. All persons treated as a single employer under paragraph (b), (c), (m) or (o) of Section 414 of the Internal Revenue Code of 1986 shall be treated as a single employer;
2. An employer and any predecessor employer shall be treated as a single employer;
3. All employees shall be counted, including part-time employees and employees who are not eligible for coverage through the employer;
4. If an employer was not in existence throughout the preceding calendar year, the determination of whether that employer is a small employer shall be based on the average number of employees that is reasonably expected that employer will employ on business days in the current calendar year; and
5. An employer that makes enrollment in qualified health plans available to its employees through the Small Employer Exchange, and would cease to be a small employer by reason of an increase in the number of its employees, shall continue to be treated as a small employer for purposes of this act as long as it continuously makes enrollment through the Small Employer Exchange available to its employees.
SECTION 4. (1) There is hereby chartered and established by the State of Mississippi, the Mississippi Health Benefit Exchange ("exchange") as a body corporate and an independent instrumentality of the State of Mississippi, created to effectuate the public purposes provided for in this act, but with a legal existence separate from that of the State of Mississippi.
(2) The Mississippi Health Benefit Exchange is hereby recognized as a not-for-profit corporation in accordance with the provisions of Section 79-11-101 et seq., and shall seek recognition of the same status by the United States Treasury in accordance with the provisions of the United States Internal Revenue Code (26 USC, Section 501(c)).
(3) The exchange shall operate subject to the supervision and approval of a board of directors which shall consist of sixteen (16) members, as follows:
(a) The Commissioner of Insurance, or his designee, in an ex officio capacity;
(b) The Director of the Division of Medicaid, or his designee, in an ex officio capacity;
(c) The Chairman of the House of Representatives Insurance Committee, or his designee, in an ex officio capacity;
(d) The Chairman of the Senate Insurance Committee, or his designee, in an ex officio capacity;
(e) One (1) member of the State and School Employees Health Insurance Management Board, appointed by the Governor to serve in an ex officio capacity;
(f) Three (3) representatives of assessable insurance companies, appointed by the commissioner, one (1) of which shall be a health insurance company domiciled in the State of Mississippi, and one (1) of which shall hold less than five percent (5%) of the market share of health insurance in Mississippi;
(g) Two (2) members who are insurance agents, one (1) of which shall be appointed by the Mississippi Health Underwriters Association and approved by the commissioner and one (1) of which shall be appointed by the Independent Insurance Agents of Mississippi and approved by the commissioner, who are duly licensed in accordance with Section 83-17-75 with no less than ten (10) years' experience in the health insurance industry;
(h) One (1) consumer advocate who shall be appointed by the Governor;
(i) Two (2) small employers appointed by the Governor;
(j) One (1) health care provider appointed by the commissioner;
(k) One (1) member of a hospital board of directors or who is a hospital administrator appointed by the commissioner; and
(l) One (1) actuary appointed by the commissioner from a list of candidates provided by the American Academy of Actuaries.
(4) The initial term for all members shall last for three (3) years and shall commence on the date of enactment of this act. Following this initial term, all appointed members shall serve one (1) additional term as follows:
(a) One (1) insurance company shall serve a term of one (1) year, one (1) insurance company shall serve a term of two (2) years and one (1) insurance company shall serve a term of three (3) years as determined by the commissioner at the time of initial appointment;
(b) One (1) producer shall serve a term of two (2) years and one (1) producer shall serve a term of three (3) years as determined by the commissioner at the time of initial appointment;
(c) The consumer advocate shall serve a term of three (3) years;
(d) One (1) small employer shall serve a term of two (2) years and one (1) small employer shall serve a term of three (3) years as determined by the commissioner at the time of initial appointment;
(e) The health care provider shall serve an additional term of three (3) years;
(f) The member appointed from a hospital board of directors or who is a hospital administrator shall serve an additional term of two (2) years; and
(g) The actuary shall serve an additional term of three (3) years.
(5) Following the second term, all appointed members may be appointed for subsequent terms of three (3) years at the will and pleasure of the appointing authority. During each term, appointed members may be dismissed from the board and replaced by the appointing authority with good cause shown.
(6) Individual board members shall not be liable and shall be immune from any suit at law or in equity for any conduct performed in good faith and which is within the subject matter over which they have been given jurisdiction.
(7) Board members may be reimbursed from monies of the exchange for actual and necessary expenses incurred by them as members in the manner and amount provided in Section 25-3-41, but shall not otherwise be compensated for their services.
(8) All ex officio members of the board shall serve the board in a nonvoting capacity.
(9) The board shall elect from its membership a chairman and a vice chairman of the board. The chairman shall serve as the presiding officer of the board. The board shall adopt rules governing times and places for meetings and the manner of conducting its business. The board shall not meet less frequently than once each quarter and at such other times as determined to be necessary. The first meeting of the initial members of the board shall be called by the Commissioner of Insurance within sixty (60) days of the date of enactment of this act.
(10) The board shall adopt a plan in accordance with this act and submit its articles, bylaws and operating rules to the department for approval within ninety (90) days after the appointment of the board.
(11) The department shall have regulatory authority over the exchange and, in accordance with the Mississippi Administrative Procedures Law, shall have the authority to promulgate regulations necessary for the implementation and operation of said exchange and shall have the authority to enforce any and all state and federal laws and/or regulations concerning the exchange. Further, the department shall have the authority to investigate the affairs of the exchange, examine the properties and records of the exchange and require the exchange to provide periodic reporting to the department in relation to the activities undertaken by the exchange.
(12) The board shall have the authority to apply for and expend any state, federal or private grant funds available to assist with the implementation and operation of the Health Insurance Exchange. The board may elect to allow the department to apply for and expend federal grant funds on its behalf and the department shall have the authority to apply for and expend said funds at the direction of, and on behalf of, the exchange.
(13) For the limited purpose of fulfilling the purposes of this act, the board and the department shall be exempt from any employment and procurement rules established by state law.
(14) The board shall have the authority to contract with any and all vendors necessary to assist with the implementation and operation of the exchange.
(15) The board shall appoint an executive director who shall:
(a) Be an employee of the exchange;
(b) Administer all of the exchange's activities and contracts;
(c) Supervise the staff of the exchange; advise the board on all matters related to the exchange; serve at the will and pleasure of the board.
The board shall determine the appropriate compensation to be paid to the executive director and shall approve all compensation to be paid to any and all other employees of the exchange.
(16) The exchange shall:
(a) Implement procedures for the certification, recertification and decertification of health benefit plans as qualified health plans;
(b) Provide for the operation of a toll-free telephone hotline to respond to requests for assistance;
(c) Provide for enrollment periods;
(d) Maintain an Internet Web site through which enrollees and prospective enrollees of qualified health plans may obtain standardized comparative information on such plans and enroll in such plans;
(e) Assign a rating to each qualified health plan offered through the exchange and determine each qualified health plan's level of coverage.
(f) Use a standardized format for presenting health benefit options in the exchange;
(g) Inform individuals of eligibility requirements for the Medicaid program under Title XIX of the Social Security Act, the Children's Health Insurance Program (CHIP) under Title XXI of the Social Security Act or any applicable state or local public program and if through screening of the application by the exchange, the exchange determines that any individual is eligible for any such program, shall refer that individual to that program so that he or she may be enrolled in said program;
(h) Establish and make available by electronic means a calculator to determine the actual cost of coverage after application of any premium tax credit under Section 36B of the Internal Revenue Code of 1986 and any state or federal cost-sharing reduction;
(i) Facilitate the purchase and sale of qualified health plans;
(j) Establish a Small Employer Exchange through which qualified employers may access coverage for their employees, which shall enable any qualified employer to specify a level of coverage so that any of its employees may enroll in any qualified health plan offered through the Small Employer Exchange at the specified level of coverage;
(k) Review the rate of premium growth within the exchange and outside the exchange;
(l) Receive and process any federal or state tax credits or other premium support payments for health insurance, as may be established by law;
(m) Create advisory committees to the board consisting of stakeholders relevant to carrying out the activities required under this act;
(n) Select entities qualified to serve as navigators in accordance with state law and/or department regulation and enable navigators to:
(i) Conduct public education activities to raise awareness of the availability of qualified health plans;
(ii) Distribute fair and impartial information concerning enrollment in qualified health plans, and the availability of premium tax credits under Section 36B of the Internal Revenue Code of 1986 and any cost-sharing reductions;
(iii) Facilitate enrollment in qualified health plans, however, no person shall receive any form of compensation as consideration for the facilitation of enrollment of any person in a qualified health plan through the exchange unless that person is an insurance producer that is duly licensed by the department pursuant to Section 83-17-75.
(iv) Provide referrals to duly licensed insurance producers to facilitate enrollment in qualified health plans;
(v) Provide referrals to any applicable office of health insurance consumer assistance or health insurance ombudsman or any other appropriate state agency or agencies, for any enrollee with a grievance, complaint or question regarding their health benefit plan, coverage or a determination under that plan or coverage; and
(vi) Provide information in a manner that is culturally and linguistically appropriate to the needs of the population being served by the exchange;
(o) Meet the requirements of this act and fully comply with any and all requirements set by state and federal statutory and regulatory law.
(p) Give consideration to the needs of individuals who do not have access to the Internet.
(17) The exchange may contract with an eligible entity to perform any of its functions described in this act. An eligible entity includes, but is not limited to, an entity that has experience in individual and small group health insurance, benefit administration or other experience relevant to the responsibilities to be assumed by the entity, but a health carrier or an affiliate of a health carrier is not an eligible entity.
(18) The exchange may enter into information-sharing agreements with federal and state agencies and other state exchanges to carry out its responsibilities under this act provided such agreements include adequate protections with respect to the confidentiality of the information to be shared and comply with all state and federal laws and regulations.
SECTION 5. (1) The exchange shall make qualified health plans available to qualified individuals and qualified employers beginning with effective dates on or before January 1, 2014.
(2) (a) The exchange shall not make available any health benefit plan that is not a qualified health plan.
(b) The exchange may allow a health carrier to offer a plan that provides limited scope dental benefits meeting the requirements of Section 9832(c)(2)(A) of the Internal Revenue Code of 1986 through the exchange, either separately or in conjunction with a qualified health plan, if the plan provides pediatric dental benefits meeting the requirements of state law and/or department regulations.
(3) Neither the exchange, nor a carrier offering health benefit plans through the exchange, may charge an individual a fee or penalty for termination of coverage or the individual enrolls in another type of minimum essential coverage because the individual has become newly eligible for that coverage or because the individual's employer-sponsored coverage has become affordable under the standards of Section 36B(c)(2)(C) of the Internal Revenue Code of 1986.
SECTION 6. (1) The exchange shall be self-sustaining by January 1, 2015.
(2) The exchange may charge assessments or user fees to health carriers to support its operations provided under this act.
(3) The exchange shall publish the average costs of licensing, regulatory fees and any other payments required by the exchange, and the administrative costs of the exchange, on an Internet Web site to educate consumers on such costs. This information shall include information on monies lost to waste, fraud and abuse.
SECTION 7. The department may promulgate regulations to implement and enforce the provisions of this act.
SECTION 8. Nothing in this act, and no action taken by the exchange pursuant to this act, shall be construed to preempt or supersede the authority of the commissioner to regulate the business of insurance within this state. Except as expressly provided to the contrary in this act, all health carriers offering qualified health plans in this state shall comply fully with all applicable health insurance laws of this state and regulations adopted and orders issued by the department.
SECTION 9. This act shall take effect and be in force from and after its passage.