BILL REQ. #:  S-4229.2 

READ FIRST TIME 01/29/04.   

     AN ACT Relating to self-funded multiple employer welfare arrangements; adding a new section to chapter 48.43 RCW; adding a new section to chapter 48.31 RCW; adding a new section to chapter 48.99 RCW; adding a new chapter to Title 48 RCW; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   This chapter may be cited as the "self-funded multiple employer welfare arrangement regulation act."

NEW SECTION.  Sec. 2   The purposes of this chapter are to:
     (1) Provide for the authorization and registration of self-funded multiple employer welfare arrangements;
     (2) Regulate self-funded multiple employer welfare arrangements in order to ensure the financial integrity of the arrangements;
     (3) Provide reporting requirements for self-funded multiple employer welfare arrangements; and
     (4) Provide for sanctions against self-funded multiple employer welfare arrangements organized, operated, providing benefits, or maintained in this state that do not comply with this chapter.

NEW SECTION.  Sec. 3   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Bona fide association" means an association of employers that has been in existence for a period of not less than ten years prior to sponsoring a self-funded multiple employer welfare arrangement, during which time the association has engaged in substantial activities relating to the common interests of member employers, such as conducting employee training programs, rendering safety and regulatory compliance services, conducting accident investigations, monitoring and testing workplace environmental conditions, conducting wage surveys, negotiating collective bargaining agreements, developing employee handbooks, improving employee relations, or engaging in lobbying activities, and that continues to engage in substantial activities in addition to sponsoring an arrangement.
     (2) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more other persons or who contracts with one or more persons, the essence of which is the personal labor of that person or persons.
     (3) "Health care service" means that service offered or provided by health care facilities and health care providers relating to the prevention, cure, or treatment of illness, injury, or disease.
     (4) "Incurred claims" means the value of all amounts paid or payable under a multiple employer welfare arrangement determined by contract to be a liability with an incurred claims date during the valuation period. It includes all payments during the valuation period plus a reasonable estimate of unpaid claims liabilities.
     (5) "Multiple employer welfare arrangement" means a multiple employer welfare arrangement as defined by 29 U.S.C. Sec. 1002, but does not include an arrangement, plan, program, or interlocal agreement of or between any political subdivisions of this state, any federal agencies, or any contractors or subcontractors with federal agencies at a federal government facility within this state.
     (6) "Qualified actuary" means an individual who:
     (a) Is a member in good standing of the American academy of actuaries; and
     (b) Is qualified to sign statements of actuarial opinion for health annual statements in accordance with the American academy of actuaries qualification standards for actuaries signing the statements.
     (7) "Self-funded multiple employer welfare arrangement" or "arrangement" means a multiple employer welfare arrangement that does not provide for payment of benefits under the arrangement solely through a policy or policies of insurance issued by one or more insurance companies licensed under this title.
     (8) "Surplus" means the excess of the assets of a self-funded multiple employer welfare arrangement over the liabilities of the arrangement. The assets and liabilities should be determined in accordance with the accounting practices and procedures manuals as adopted by the national association of insurance commissioners, unless otherwise provided by law.

NEW SECTION.  Sec. 4   (1) Except as provided in subsection (3) of this section, a person may not establish, operate, provide benefits, or maintain a self-funded multiple employer welfare arrangement in this state unless the arrangement first obtains a certificate of authority from the commissioner.
     (2) An arrangement is considered to be established, operated, providing benefits, or maintained in this state if (a) one or more of the employer members participating in the arrangement is either domiciled in or maintains a place of business in this state, or (b) the activities of the arrangement or employer members fall under the scope of RCW 48.01.020.
     (3) An arrangement established, operated, providing benefits, or maintained in this state prior to December 31, 2003, has until April 1, 2005, to file a substantially complete application for a certificate of authority. An arrangement that files a substantially complete application for a certificate of authority by that date is allowed to continue to operate without a certificate of authority until the commissioner approves or denies the arrangement's application for a certificate of authority.

NEW SECTION.  Sec. 5   The commissioner may not issue a certificate of authority to a self-funded multiple employer welfare arrangement unless the arrangement establishes to the reasonable satisfaction of the commissioner that the following requirements have been satisfied by the arrangement:
     (1) The employers participating in the arrangement are members of a bona fide association;
     (2) The employers participating in the arrangement exercise control over the arrangement, as follows:
     (a) Subject to (b) of this subsection, control exists if the board of directors of the bona fide association or the employers participating in the arrangement have the right to elect at least seventy-five percent of the individuals designated in the arrangement's organizational documents as having control over the operations of the arrangement and the individuals designated in the arrangement's organizational documents in fact exercise control over the operation of the arrangement; and
     (b) The use of a third-party administrator to process claims and to assist in the administration of the arrangement is not evidence of the lack of exercise of control over the operation of the arrangement;
     (3) In this state, the arrangement provides only health care services;
     (4) In this state, the arrangement provides or arranges benefits for health care services in compliance with those provisions of this title that mandate particular benefits or offerings and with provisions that require access to particular types or categories of health care providers and facilities;
     (5) The arrangement provides health care services to not less than twenty employers and not less than seventy-five employees;
     (6) The arrangement may not solicit participation in the arrangement from the general public. However, the arrangement may employ licensed insurance agents who receive a commission, unlicensed individuals who do not receive a commission, and may contract with a licensed insurance producer who may be paid a commission or other remuneration, for the purpose of enrolling and renewing the enrollments of employers in the arrangement;
     (7) The arrangement has been in existence and operated actively for a continuous period of not less than ten years as of December 31, 2003, except for an arrangement that has been in existence and operated actively since December 31, 2000, and is sponsored by an association that has been in existence more than twenty-five years; and
     (8) The arrangement is not organized or maintained solely as a conduit for the collection of premiums and the forwarding of premiums to an insurance company.

NEW SECTION.  Sec. 6   (1) In addition to the requirements under section 5 of this act, self-funded multiple employer welfare arrangements are subject to the following requirements:
     (a) Arrangements must maintain a calendar year for operations and reporting purposes;
     (b) Arrangements must satisfy one of the following requirements:
     (i)(A) The arrangement must deposit two hundred thousand dollars with the commissioner to be used for the payment of claims in the event that the arrangement becomes insolvent; and
     (B) The arrangement must submit to the commissioner a written plan of operation that, in the reasonable discretion of the commissioner, ensures the financial integrity of the arrangement; or
     (ii) The arrangement demonstrates to the reasonable satisfaction of the commissioner the ability of the arrangement to remain financially solvent, for which purpose the commissioner may consider:
     (A) The pro forma financial statements of the arrangement;
     (B) The types and levels of excess of loss insurance coverage, including the attachment points of the coverage and whether the points are reflected as annual or monthly levels;
     (C) Whether a deposit is required for each employee covered under the arrangement equal to at least one month's cost of providing benefits under the arrangement;
     (D) The experience of the individuals who will be involved in the management of the arrangement, including employees, independent contractors, and consultants; and
     (E) Other factors as reasonably determined by the commissioner to be relevant to a determination of whether the arrangement is able to operate in a financially solvent manner.
     (2) The commissioner may require that the articles, bylaws, agreements, trusts, or other documents or instruments describing the rights and obligations of the employers, employees, and beneficiaries of the arrangement provide that employers participating in the arrangement are subject to pro rata assessment for all liabilities of the arrangement.
     (3) Self-funded multiple employer welfare arrangements with fewer than one thousand covered persons are required to have aggregate stop loss coverage, with an attachment point of one hundred twenty-five percent of expected claims. If the arrangement is allowed to assess the participating employers to cover actual or projected claims in excess of plan assets, then the attachment point shall be increased by the amount of the allowable assessments. If the required attachment point exceeds one hundred seventy-five percent of expected claims, aggregate stop loss coverage shall be waived. Arrangements with one thousand covered persons or more are not required to have aggregate stop loss coverage.
     (4) The arrangement must demonstrate continued compliance with respect to the conditions set forth in this section as a condition of receiving and maintaining a certificate of authority. The commissioner may waive continued compliance with respect to the conditions in this section at any time after the commissioner has granted a certificate of authority to an arrangement.

NEW SECTION.  Sec. 7   A self-funded multiple employer welfare arrangement must apply for a certificate of authority on a form prescribed by the commissioner and must submit the application, together with the following documents, to the commissioner:
     (1) A copy of all articles, bylaws, agreements, trusts, or other documents or instruments describing the rights and obligations of the employers, employees, and beneficiaries of the arrangement;
     (2) A copy of the summary plan description or summary plan descriptions of the arrangement, including those filed or required to be filed with the United States department of labor, together with any amendments to the description;
     (3) Evidence of coverage of or letters of intent to participate executed by at least twenty employers providing allowable benefits to at least seventy-five employees;
     (4) A copy of the arrangement's most recent year's financial statements that must include, at a minimum, a balance sheet, an income statement, a statement of changes in financial position, and an actuarial opinion signed by a qualified actuary stating that the unpaid claim liability of the arrangement satisfies the standards under this title;
     (5) Proof that the arrangement maintains or will maintain fidelity bonds required by the United States department of labor under the employee retirement income security act of 1974, 29 U.S.C. Sec. 1001, et seq.;
     (6) A copy of any excess of loss insurance coverage policies maintained or proposed to be maintained by the arrangement;
     (7) Biographical reports on forms prescribed by the national association of insurance commissioners evidencing the general trustworthiness and competence of each individual who is serving or who will serve as an officer, director, trustee, employee, or fiduciary of the arrangement;
     (8) Fingerprint cards and current fees payable to the Washington state patrol to check the criminal history of any person who exercises control over the financial dealings and operations of the self-funded multiple employer welfare arrangement, including collection of employer contributions, investment of assets, payment of claims, rate setting, and claims adjudication; and
     (9) A statement executed by a representative of the arrangement certifying, to the best knowledge and belief of the representative, that:
     (a) The arrangement is in compliance with section 5 of this act;
     (b) The arrangement is in compliance with the requirements of the employee retirement income security act of 1974, 29 U.S.C. Sec. 1001, et seq., or a statement of any requirements with which the arrangement is not in compliance and a statement of proposed corrective actions; and
     (c) The arrangement is in compliance with sections 8 and 9 of this act.

NEW SECTION.  Sec. 8   Self-funded multiple employer welfare arrangements must maintain continuously a surplus equal to at least ten percent of the next twelve months projected incurred claims or two million dollars, whichever is greater. The commissioner may proceed against self-funded multiple employer welfare arrangements that fail to maintain the level of surplus required by this section in any manner that the commissioner is authorized to proceed against a health care service contractor that failed to maintain minimum net worth.

NEW SECTION.  Sec. 9   A self-funded multiple employer welfare arrangement must establish and maintain contribution rates for participation under the arrangement that satisfy either of the following requirements:
     (1) Contribution rates must equal or exceed the sum of projected incurred claims for the year, plus all projected costs of operation of the arrangement for the year, plus an amount equal to any deficiency in the surplus of the arrangement for the prior year, minus an amount equal to the surplus of the arrangement in excess of the minimum required level of surplus; or
     (2) Contribution rates must equal or exceed a funding level established by a report prepared by a qualified actuary.

NEW SECTION.  Sec. 10   (1) The commissioner shall grant or deny an application for a certificate of authority within one hundred eighty days of the date that a completed application, together with the items designated in section 7 of this act, is submitted to the commissioner.
     (2) The commissioner shall grant the application of an arrangement that satisfies the applicable requirements of sections 5 through 9 of this act.
     (3) The commissioner shall deny the application of an arrangement that does not satisfy the applicable requirements of sections 5 through 9 of this act. Denial of an application for a certificate of authority is subject to appeal under chapter 34.05 RCW.
     (4) A certificate of authority granted to an arrangement is effective unless revoked by the commissioner under section 12 of this act.

NEW SECTION.  Sec. 11   (1) A self-funded multiple employer welfare arrangement must comply with the reporting requirements of this section.
     (2) Every arrangement holding a certificate of authority from the commissioner must file its financial statements as required by this title and by the commissioner in accordance with the accounting practices and procedures manuals as adopted by the national association of insurance commissioners, unless otherwise provided by law.
     (3) Every arrangement must comply with the provisions of chapters 48.12 and 48.13 RCW.
     (4) Every arrangement holding a certificate of authority shall, annually, before the first day of March, file with the commissioner a true statement of its financial condition, transactions, and affairs as of the thirty-first day of December of the preceding year. The statement forms must be those forms approved by the national association of insurance commissioners for health insurance. The statement must be verified by the oaths of at least two officers of the arrangement. Additional information may be required by this title or by the request of the commissioner.
     (5) Every arrangement must report their annual and other statements in the same manner required of other insurers by rule of the commissioner.
     (6) The arrangement must file with the commissioner a copy of the arrangement's internal revenue service form 5500 together with all attachments to the form, at the time required for filing the form.

NEW SECTION.  Sec. 12   (1) The commissioner may impose sanctions against a self-funded multiple employer welfare arrangement that fails to comply with this chapter. The maximum fine may not exceed ten thousand dollars for each violation.
     (2) The commissioner may issue a notice of intent to revoke the certificate of authority of a self-funded multiple employer welfare arrangement that fails to comply with section 8, 9, or 11 of this act. If, within sixty days of receiving notice under this subsection, the arrangement fails to file with the commissioner a plan to bring the arrangement into compliance with section 8, 9, or 11 of this act, the commissioner may revoke the arrangement's certificate of authority. A revocation of a certificate of authority is subject to appeal under chapter 34.05 RCW.
     (3) An arrangement that fails to maintain the level of surplus required by section 8 of this act is subject to the sanctions authorized in RCW 48.44.160 through 48.44.166.

NEW SECTION.  Sec. 13   A self-funded multiple employer welfare arrangement organized, operated, providing benefits, or maintained in this state without a certificate of authority is in violation of this title.

NEW SECTION.  Sec. 14   Each policy issued by a self-funded multiple employer welfare arrangement must contain, in ten-point type on the front page and the declaration page, the following notice:

NEW SECTION.  Sec. 15   A self-funded multiple employer welfare arrangement is subject to RCW 48.43.300 through 48.43.370, the rehabilitation provisions under chapter 48.31 RCW, and chapter 48.99 RCW.

NEW SECTION.  Sec. 16   This chapter does not apply to:
     (1) Single employer entities;
     (2) Taft-Hartley plans;
     (3) Self-funded multiple employer welfare arrangements that do not provide coverage for health care services; or
     (4) Plans that have received a United States department of labor advisory opinion saying that they constitute a single employee welfare benefit plan.

NEW SECTION.  Sec. 17   A new section is added to chapter 48.43 RCW to be codified between RCW 48.43.300 and 48.43.370 to read as follows:
     A self-funded multiple employer welfare arrangement, as defined in section 3 of this act, is subject to the same RBC reporting requirements as a domestic carrier under RCW 48.43.300 through 48.43.370.

NEW SECTION.  Sec. 18   A new section is added to chapter 48.31 RCW to read as follows:
     A self-funded multiple employer welfare arrangement, as defined in section 3 of this act, is an insurer under this chapter.

NEW SECTION.  Sec. 19   A new section is added to chapter 48.99 RCW to read as follows:
     A self-funded multiple employer welfare arrangement, as defined in section 3 of this act, is an insurer under this chapter.

NEW SECTION.  Sec. 20   Sections 1 through 16 of this act constitute a new chapter in Title 48 RCW.

NEW SECTION.  Sec. 21   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.