§ 23-86-304 — Increased portability through limitation on preexisting conditions exclusions

(a) Limitation on Preexisting Condition Exclusion Period - Crediting for Periods of Previous Coverage. Subject to subsection (d) of this section, a group health plan and a health insurance issuer offering group health insurance coverage may, with respect to a participant or beneficiary, impose a preexisting condition exclusion only if: (1) The preexisting condition exclusion relates to a condition, whether physical or mental, regardless of the cause of the condition, for which medical advice, diagnosis, care, or treatment was recommended or received within the six-month period ending on the enrollment date; (2) The preexisting condition exclusion extends for a period of not more than twelve (12) months, or eighteen (18) months in the case of a late enrollee, after the enrollment date; and (3) The period of any such preexisting condition exclusion is reduced by the aggregate of the periods of creditable coverage, if any, as defined in subdivision (c)(1) of this section, applicable to the participant or beneficiary as of the enrollment date. (b) Treatment of Genetic Information. Genetic information shall not be treated as a condition described in subdivision (a)(1) of this section in the absence of a diagnosis of the condition related to that information. (c) Creditable Coverage - Rules Relating to Crediting Previous Coverage. (1) Not Counting Periods Before Significant Breaks in Coverage. (A) In General. A period of creditable coverage shall not be counted, with respect to enrollment of an individual under a group health plan, if, after such a period and before the enrollment date, there was a sixty-three-day period during all of which the individual was not covered under any creditable coverage. (B) Waiting Period Not Treated as a Break in Coverage. For purposes of subdivisions (c)(1)(A) and (d)(4) of this section, any period that an individual is in a waiting period for any coverage under a group health plan or for group health insurance coverage or is in an affiliation period as defined in § 23-86-303(1) shall not be taken into account in determining the continuous period under subdivision (c)(1)(A) of this section. (2) Method of Crediting Coverage. (A) Standard Method. Except as otherwise provided under subdivision (c)(2)(B) of this section, for purposes of applying subdivision (a)(3) of this section, a group health plan and a health insurance issuer offering group health insurance coverage shall count a period of creditable coverage without regard to the specific benefits covered during the period. (B) Election of Alternative Method. (i) A group health plan or a health insurance issuer offering group health insurance coverage may elect to apply subdivision (a)(3) of this section based on coverage of benefits within each of several classes or categories of benefits specified in rules rather than as provided under subdivision (c)(2)(A) of this section. (ii) The election shall be made on a uniform basis for all participants and beneficiaries. (iii) Under the election, a group health plan or health insurance issuer shall count a period of creditable coverage with respect to any class or category of benefits if any level of benefits is covered within the class or category. (C) Group Health Plan Notice. In the case of an election with respect to a group health plan under subdivision (c)(2)(B) of this section, whether or not health insurance coverage is provided in connection with such a group health plan, the group health plan shall: (i) Prominently state in any disclosure statements concerning the group health plan, and state to each enrollee at the time of enrollment under the group health plan, that the group health plan has made such an election; and (ii) Include in such statements a description of the effect of this election. (D) Health Insurance Issuer Notice. In the case of an election under subdivision (c)(2)(B) of this section with respect to health insurance coverage offered by a health insurance issuer in the small or large group market, the health insurance issuer: (i) Shall prominently state in any disclosure statements concerning the coverage, and to each employer at the time of the offer or sale of the coverage, that the health insurance issuer has made such an election; and (ii) Shall include in such statements a description of the effect of such an election. (3) Establishment of Period. Periods of creditable coverage with respect to an individual shall be established through presentation of certifications described in subsection (e) of this section or in such other manner as may be specified in regulations. (d) Exceptions. (1) Preexisting Condition Exclusion Not Applicable to Certain Newborns. Subject to subdivision (d)(4) of this section, a group health plan and a health insurance issuer offering group health insurance coverage may not impose any preexisting condition exclusion in the case of an individual who, as of the last day of the thirty-day period beginning with the date of birth, is covered under creditable coverage. (2) Preexisting Condition Exclusion Not Applicable to Certain Adopted Children. (A) Subject to subdivision (d)(4) of this section, a group health plan and a health insurance issuer offering group health insurance coverage may not impose any preexisting condition exclusion in the case of a child who is adopted or placed for adoption before attaining eighteen (18) years of age and who, as of the last day of the thirty-day period beginning on the date of the adoption or placement for adoption, is covered under creditable coverage. (B) Subdivision (d)(2)(A) of this section shall not apply to coverage before the date of the adoption or placement for adoption. (3) Preexisting Condition Exclusion Not Applicable to Pregnancy. A group health plan and a health insurance issuer offering group health insurance coverage may not impose any preexisting condition exclusion relating to pregnancy as a preexisting condition. (4) Loss if Break in Coverage. Subdivisions (d)(1) and (2) of this section shall no longer apply to an individual after the end of the first sixty-three-day period during all of which the individual was not covered under any creditable coverage. (e) Certifications and Disclosure of Coverage. (1) Requirement for Certification of Period of Creditable Coverage. (A) In General. A group health plan, and a health insurance issuer offering group health insurance coverage, shall provide the certification described in subdivision (e)(1)(B) of this section: (i) At the time an individual ceases to be covered under the group health plan or otherwise becomes covered under a COBRA continuation provision; (ii) In the case of an individual becoming covered under such a provision, at the time the individual ceases to be covered under such a provision; and (iii) (a) At the request on behalf of an individual made not later than twenty-four (24) months after the date of cessation of the coverage described in subdivision (e)(1)(A)(i) or subdivision (e)(1)(A)(ii) of this section, whichever is later. (b) The certification under subdivision (e)(1)(A)(i) of this section may be provided, to the extent practicable, at a time consistent with notices required under any applicable COBRA continuation provision. (B) Certification. The certification described in subdivision (e)(1)(A) of this section is a written certification of: (i) The period of creditable coverage of the individual under such a group health plan and the coverage, if any, under the COBRA continuation provision; and (ii) The waiting period, if any, and affiliation period, if applicable, imposed with respect to the individual for any coverage under such a group health plan. (C) Issuer Compliance. To the extent that medical care under a group health plan consists of group health insurance coverage, the group health plan is deemed to have satisfied the certification requirement under this section if the health insurance issuer offering the coverage provides for such certification in accordance with this section. (2) Disclosure of Information on Previous Benefits. In the case of an election described in subdivision (c)(2)(B) of this section by a group health plan or health insurance issuer, if the group health plan or health insurance issuer enrolls an individual for coverage under the group health plan and the individual provides a certification of coverage of the individual under subdivision (e)(1) of this section: (A) Upon request of the group health plan or health insurance issuer, the entity which issued the certification provided by the individual shall promptly disclose to the requesting group health plan or issuer information on coverage of classes and categories of health benefits available under the entity's plan or coverage; and (B) The entity may charge the requesting group health plan or health insurance issuer for the reasonable cost of disclosing the information. (f) Special Enrollment Periods. (1) Individuals Losing Other Coverage. A group health plan and a health insurance issuer offering group health insurance coverage in connection with a group health plan shall permit an employee who is eligible, but not enrolled, for coverage under the terms of the group health plan or a dependent of such an employee if the dependent is eligible, but not enrolled, for coverage under such terms to enroll for coverage under the terms of the group health plan if each of the following conditions is met: (A) The employee or dependent was covered under a group health plan or had health insurance coverage at the time coverage was previously offered to the employee or dependent; (B) The employee stated in writing at such time that coverage under a group health plan or health insurance coverage was the reason for declining enrollment, but only if the plan sponsor or health insurance issuer if applicable required such a statement at that time and provided the employee with notice of the requirement and the consequences of such a requirement at that time; (C) The employee's or dependent's coverage described in subdivision (f)(1)(A) of this section: (i) Was under a COBRA continuation provision and the coverage under such a provision was exhausted; or (ii) Was not under such a provision and either the coverage was terminated as a result of loss of eligibility for the coverage including loss as a result of legal separation, divorce, death, termination of employment, or reduction in the number of hours of employment or employer contributions toward the coverage were terminated; and (D) Under the terms of the group health plan, the employee requests the enrollment not later than thirty (30) days after the date of exhaustion of coverage described in subdivision (f)(1)(C)(i) of this section or termination of coverage or employer contribution described in subdivision (f)(1)(C)(ii) of this section. (2) For Dependent Beneficiaries. (A) In General. If: (i) A group health plan makes coverage available with respect to a dependent of an individual; (ii) The individual is a participant under the group health plan or has met any waiting period applicable to becoming a participant under the group health plan and is eligible to be enrolled under the group health plan but for that individual's failure to enroll during a previous enrollment period; and (iii) A person becomes such a dependent of the individual through marriage, birth, or adoption or placement for adoption, then the enrollment period described in subdivision (f)(2)(B) of this section shall be provided, during which the person, or, if not otherwise enrolled, the individual, may be enrolled under the group health plan as a dependent of the individual and, in the case of the birth or adoption of a child, the spouse of the individual may be enrolled as a dependent of the individual if the spouse is otherwise eligible for coverage. (B) Dependent Special Enrollment Period. A dependent special enrollment period under subdivision (f)(2)(A) of this section shall be a period of not less than thirty (30) days and shall begin on the later of: (i) The date dependent coverage is made available; or (ii) The date of the marriage, birth, or adoption or placement for adoption, as the case may be, described in subdivision (f)(2)(A)(iii) of this section. (C) No Waiting Period. If an individual seeks to enroll a dependent during the first thirty (30) days of such a dependent special enrollment period, the coverage of the dependent shall become effective: (i) In the case of marriage, not later than the first day of the first month beginning after the date the completed request for enrollment is received; (ii) In the case of a dependent's birth, as of the date of the birth; or (iii) In the case of a dependent's adoption or placement for adoption, the date of the adoption or placement for adoption. (g) Use of Affiliation Period by Health Maintenance Organizations as Alternative to Preexisting Condition Exclusion. (1) In General. In the case of a group health plan that offers medical care through coverage offered by a health maintenance organization, the group health plan may provide for an affiliation period with respect to coverage through the health maintenance organization only if: (A) No preexisting condition exclusion is imposed with respect to coverage through the health maintenance organization; (B) The affiliation period is applied uniformly without regard to any health status-related factors; and (C) The affiliation period does not exceed two (2) months or three (3) months in the case of a late enrollee. (2) Affiliation Period. (A) Affiliation Period. The health maintenance organization is not required to provide healthcare services or benefits during the affiliation period, and no premium shall be charged to the participant or beneficiary for any coverage during the affiliation period. (B) Beginning. The affiliation period shall begin on the enrollment date. (C) Runs Concurrently with Waiting Periods. An affiliation period under a group health plan shall run concurrently with any waiting period under the group health plan. (3) Alternative Methods. A health maintenance organization described in subdivision (g)(1) of this section may use alternative methods from those described in subdivision (g)(1) of this section to address adverse selection as approved by the Insurance Commissioner.

Legislative History

Amended by Act 2019, No. 315,§ 2747, eff. 7/24/2019. Acts 1997, No. 997, § 1.