(1)
Notwithstanding any other provision of law, and except as provided in this section,
any person or other entity which provides coverage in this state for medical,
surgical, chiropractic, physical therapy, speech pathology, audiology, professional
mental health, dental, hospital, or optometric expenses, whether such coverage is
by direct payment, reimbursement, or otherwise, shall be presumed to be subject to
the jurisdiction of the division of insurance, unless such person or entity shows that
while providing such services it is subject to the jurisdiction of another agency of
this state, any subdivisions thereof, or the federal government.
(2) A person or other entity may show that it is subject to the jurisdiction of
another agency of this state, any subdivision thereof, or the federal government, by
providing to the insurance commissioner the appropriate certificate, license, or
other document issued by the other governmental agency which permits or
qualifies it to provide those services. Nothing in this section shall be construed to in
any way limit the ability of the division of insurance to regulate insurance
companies, multiple employer trusts, multiple employer welfare arrangements,
association health plans, or preferred provider organizations.
(3) Any person or other entity which is unable to show under subsection (2)
of this section that it is subject to the jurisdiction of another agency of this state,
any subdivision thereof, or the federal government shall submit to an examination
by the insurance commissioner to determine the organization and solvency of the
person or the entity, and to determine whether such person or entity complies with
the applicable provisions of this article.
(4) Any person or other entity unable to show that it is subject to the
jurisdiction of another agency of this state, any subdivision thereof, or the federal
government shall be subject to all appropriate provisions of this article regarding
the conduct of its business.
(5) Any production agency or administrator which advertises, sells,
transacts, or administers the coverage in this state described in subsection (1) of
this section and which is required to submit to an examination by the insurance
commissioner under subsection (3) of this section shall, if said coverage is not fully
insured or otherwise fully covered by an admitted sickness and accident insurer,
nonprofit hospital, medical, surgical, and health service corporation, prepaid dental
care plan, or health maintenance organization, advise every purchaser, prospective
purchaser, and covered person of such lack of insurance or other coverage.
(6) Any administrator which advertises or administers the coverage in this
state described in subsection (1) of this section and which is required to submit to
an examination by the insurance commissioner under subsection (3) of this section,
shall advise any production agency of the elements of the coverage, including the
amount of stop-loss insurance in effect.
(7) (a) The provisions of this section and any other laws of this state that
regulate insurance or insurance companies shall not apply to any multiple employer
health trust that meets the requirements of subsection (7)(b) of this section, any
multiple employer welfare arrangement that meets the requirements of subsection
(7)(c) of this section, or any multiple employer behavioral health trust that meets
the requirements of subsection (7)(e) of this section. Any such trust or arrangement
shall be subject to the requirements of this subsection (7) and section 10-3-1104.
The exemption provided by this subsection (7) shall not apply to any entity if the
division of insurance determines that its operation is hazardous to the public or to
individuals receiving benefits.
(b) A multiple employer health trust is any trust that is:
(I) Sponsored, maintained, and funded by one or more entities of state
government or political subdivisions of the state organized pursuant to state law
and is for the benefit of the entity's employees, including a multiple employer
health trust established for the purposes of part 3 or 4 of article 5 of title 29; or
(II) Established and maintained pursuant to the provisions of a collective
bargaining agreement between one or more unions and employers or an association
of employers for the benefit of employees who are covered by such agreement, and
pursuant to which health benefits, wages, pension benefits, and other terms of
employment have been bargained for in good faith and the sponsoring union
provides services and benefits to its members other than health benefits.
(c) A multiple employer welfare arrangement is any arrangement that
complies with either the following requirements or subsection (7)(d) of this section:
(I) The multiple employer welfare arrangement shall have been in existence
continuously since at least January 1, 1983, and shall maintain unallocated reserves
of not less than five percent of the first two million dollars of annual contributions
made to such arrangement in the preceding year.
(II) The multiple employer welfare arrangement shall file its annual financial
statement with the division within sixty days after the end of its fiscal year to
demonstrate that the required reserves are being maintained, and it shall file its
audited financial statement with the division within the time period that insurance
companies are required to file such statements.
(III) The multiple employer welfare arrangement shall file an actuarial
opinion with the division which states that the reserves and the contribution and
funding levels of the arrangement are adequate and which includes the underlying
actuarial report in support of the opinion in accordance with the requirements of
section 10-7-114, and such arrangement shall file such opinion and report within the
time period that insurance companies are required to file such actuarial opinion.
(IV) The multiple employer welfare arrangement shall provide benefits which
are in substantial compliance with the mandated benefit provisions that are
applicable to insurers offering health insurance coverage in this state.
(V) The multiple employer welfare arrangement shall be sponsored and
maintained by an association which:
(A) Has within its membership the employers who participate in and fund the
arrangement;
(B) Is engaged in substantial activities for its employer members, other than
the sponsorship of an employee welfare benefit plan, and provides business or
professional assistance and benefits to its members who share a common business
interest and are primarily engaged in the same trade or business; and
(C) Has been in existence for a period of at least ten years.
(d) (I) A multiple employer welfare arrangement that meets the requirements
specified in subsection (7)(c) of this section other than subsection (7)(c)(I) of this
section may file an application for a waiver with the commissioner. A multiple
employer welfare arrangement that meets the requirements specified in subsection
(7)(c) of this section other than those specified in subsections (7)(c)(I) and
(7)(c)(V)(B) of this section may also file an application for a waiver with the
commissioner. The application must include:
(A) A copy of the multiple employer welfare arrangement's articles of
incorporation, constitution, trust agreement, bylaws, and analogous organic
documents that govern the operation of the arrangement;
(B) A copy of membership criteria, a statement of ownership of the multiple
employer welfare arrangement's members, and a summary of the activities and
benefits, other than health plan coverage, provided to members;
(C) A list of names, addresses, and official capacities with the multiple
employer welfare arrangement of the individuals who will be responsible for the
management and conduct of the affairs of the arrangement, including all trustees,
officers, and directors, along with a full disclosure of the extent and nature of any
contracts between the individuals and the arrangement, including possible conflicts
of interest;
(D) Background records. Each individual specified in subsection (7)(d)(I)(C) of
this section shall submit a set of fingerprints to the commissioner. The
commissioner shall forward the fingerprints to the Colorado bureau of investigation
for the purpose of conducting a state and national fingerprint-based criminal
history record check utilizing records of the Colorado bureau of investigation and
the federal bureau of investigation. The multiple employer welfare arrangement
shall bear only the actual costs of the record check. When the results of a
fingerprint-based criminal history record check of an individual performed pursuant
to this subsection (7)(d)(I)(D) reveal a record of arrest without a disposition, the
commissioner shall require that individual to submit to a name-based judicial record
check, as defined in section 22-2-119.3 (6)(d).
(E) A copy of the policy, contract, certificate, summary plan description, or
other evidence of the benefits and coverages provided to covered employees,
including for each form of evidence a table of the rates charged or proposed to be
charged;
(F) A copy of the multiple employer welfare arrangement's stop-loss or
excess insurance agreement, if any;
(G) A copy of audited financial statements of the multiple employer welfare
arrangement for the previous five years that were prepared by a licensed certified
public accountant, including an actuarial opinion; and
(H) A copy of every contract between the multiple employer welfare
arrangement and its administrator or service company, including, if applicable, a
copy of the fidelity bond specified in subsection (7)(d)(II)(C) of this section.
(II) To qualify for a waiver, a multiple employer welfare arrangement must:
(A) Maintain unallocated reserves of not less than two million dollars of
minimum surplus; except that the commissioner may, by rule, increase the minimum
surplus consistent with the standards of the national association of insurance
commissioners;
(B) Be managed by and provide benefits through an administrator or service
company that is in good standing in all other states in which the administrator or
service company operates, and if the multiple employer welfare arrangement
provides coverage through one or more brokers, the brokers must be licensed as
producers pursuant to article 2 of this title 10;
(C) Be managed by an administrator or service company that is a licensed
third-party administrator or is covered by a fidelity bond in the amount of two
hundred thousand dollars;
(D) Maintain a complaint system that complies with article 11 of this title 10
and make the system available to the division upon request;
(E) File the multiple employer welfare arrangement's plan marketing
materials with the division;
(F) Provide to the commissioner quarterly financial statements to
demonstrate that the reserves required pursuant to subsection (7)(d)(II)(A) of this
section are being maintained along with annual audited financial reports;
(G) Provide nondiscriminatory plan coverage to its members that is applied
evenly and equitably to all employees of the members and that matches what is
otherwise required of health benefit plans, including: Coverage of essential health
benefit plans and compliance with the federal Patient Protection and Affordable
Care Act, Pub.L.111-148, as amended; coverage of state-mandated health benefits
as required by section 10-16-104; network provider requirements and compliance
with network adequacy standards as required by section 10-16-704; and guarantee
issue requirements, including that all multiple employer welfare arrangement
members and their employees must be eligible to purchase insurance;
(H) Not condition membership on health-status-related factors related to an
individual or exclude an employer from membership because of the health status of
the employees of the employer. Health-status-related factors include: Health
status; medical condition, including both physical and mental illness, as defined in
45 CFR 144.103; and evidence of insurability or disability.
(I) Not charge different premium rates, alter cost sharing, or change benefit
levels based on health-status-related factors of a multiple employer welfare
arrangement member group or individual employee of that group;
(J) Not make health insurance coverage offered through the arrangement
available other than in connection with a member of the multiple employer welfare
arrangement; and
(K) File annual rate and form filings with the division as specified by the
commissioner by rule.
(III) The commissioner shall consider granting a waiver to a multiple
employer welfare arrangement that has submitted a complete application pursuant
to subsection (7)(d)(I) of this section and that is in compliance with subsection
(7)(d)(II) of this section in accordance with the following factors:
(A) Whether the establishment of a multiple employer welfare arrangement
has the potential to lower insurance costs for its members or provide additional
insurance options in a region or regions of the state where there may not be
sufficient competition;
(B) Potential impact on the fully insured market;
(C) Consumer experience with accessing coverage and the potential for
consumer harm;
(D) Whether the administrator of the multiple employer welfare arrangement
has demonstrated financial soundness so as to not jeopardize the viability of the
arrangement or harm its members; and
(E) The length of time the multiple employer welfare arrangement has been
in existence.
(IV) A waiver granted pursuant to this subsection (7)(d) subjects the multiple
employer welfare arrangement to the division's full enforcement authority available
pursuant to this title 10 and allows the arrangement to operate pursuant to this
subsection (7) for two years. To continue to operate pursuant to this subsection (7),
an arrangement must reapply for a waiver; except that, if the commissioner grants
five consecutive waivers pursuant to this subsection (7)(d), an arrangement may
continue to operate pursuant to this subsection (7) without again applying for a
waiver. An arrangement operating pursuant to this subsection (7)(d) remains
subject to the division's full enforcement authority under this title 10, and the
division may apply any requirement in this title 10 applicable to health insurance
carriers to the arrangement as long as the multiple employer welfare arrangement
is operating in Colorado.
(V) The commissioner:
(A) Shall adopt rules for the implementation of this subsection (7)(d); and
(B) May waive any of the requirements of subsection (7)(d)(I)(B) of this
section for waiver applicants that meet the requirements in subsection (7)(c) of this
section other than those specified in subsections (7)(c)(I) and (7)(c)(V)(B) of this
section.
(e) A multiple employer behavioral health trust is any trust that is sponsored
and maintained by one or more entities of state government or political subdivisions
of the state, organized pursuant to state law, and funded by the state for the
benefit of the entities' employees, including a multiple employer behavioral health
trust established for the purposes of part 5 of article 5 of title 29.