CHAPTER 93
STATE-BASED EXCHANGE
Sec.
9301. Scope of chapter.
9302. Pennsylvania Health Insurance Exchange Authority.
9303. Advisory council.
9304. Meetings and operation.
9305. Powers and duties of exchange authority.
9306. Limitations.
9307. Confidentiality and disclosure.
9308. Not an entitlement.
9309. Nonliability.
9310. Audits.
9311. Reports.
9312. Exchange fund.
9313. Federal guidance.
9314. Expiration.
Enactment. Chapter 93 was added July 2, 2019, P.L.294, No.42, effective immediately.
Cross References. Chapter 93 is referred to in section 9703 of this title.
§ 9301. Scope of chapter.
This chapter relates to the Pennsylvania Health Insurance Exchange Authority.
§ 9302. Pennsylvania Health Insurance Exchange Authority.
(a) Establishment.--The Pennsylvania Health Insurance Exchange Authority is established as a State-affiliated entity. The powers and duties of the exchange authority shall be vested in and exercised by a board, which shall have the sole power under section 9305 (relating to powers and duties of exchange authority) to employ staff, including an executive director. Individuals employed by the exchange authority shall be employees of the Commonwealth. The exchange authority may contract with persons or entities, including legal counsel, consultants or service providers, as deemed necessary in the exchange authority's discretion.
(b) Purpose.--The purpose of the exchange authority shall be to create, manage and maintain in this Commonwealth the Pennsylvania Health Insurance Exchange to do all of the following:
(1) Benefit the Pennsylvania health insurance market and persons enrolling in health insurance policies.
(2) Facilitate or assist in facilitating the purchase of on-exchange qualified plans by qualified enrollees in the individual market or the individual and small group markets.
(c) Composition.--The board shall consist of the following members:
(1) Three voting members who shall be the following heads of agencies or a designee who shall be an employee of the agency designated in writing by the head of the agency prior to service:
(i) The commissioner, ex-officio.
(ii) The Secretary of Human Services, ex-officio.
(iii) The Secretary of Health, ex-officio.
(2) Four voting members appointed by the Governor:
(i) One member from among the insurers that offer health insurance policies through the exchange that are a hospital plan corporation, a professional health services plan corporation or a parent, affiliate, subsidiary or other associated entity or successor of a hospital plan corporation or a professional health services plan.
(ii) One member from among the insurers that offer health insurance policies through the exchange that are not a hospital plan corporation, a professional health services plan corporation or a parent, affiliate, subsidiary or other associated entity or successor of a hospital plan corporation or a professional health services plan.
(iii) One member with experience in health care public education and consumer assistance activities who does not have a conflict of interest as described in subsection (k).
(iv) One member who is a consumer representative.
(3) Four voting members appointed by the General Assembly as follows:
(i) One individual appointed by the President pro tempore of the Senate.
(ii) One individual appointed by the Minority Leader of the Senate.
(iii) One individual appointed by the Speaker of the House of Representatives.
(iv) One individual appointed by the Minority Leader of the House of Representatives.
(4) The executive director shall attend meetings of the board but shall not be a member, may not vote and may not be counted for purposes of establishing a quorum.
(d) Chairperson.--The commissioner or a designee shall serve as chairperson.
(e) Compensation.--Board members shall not be entitled to any compensation for their services as members, except that, subject to the availability of funds, board members shall be entitled to reimbursement for actual and necessary travel expenses. The expenses shall be paid for by the exchange fund.
(f) Terms.--The terms of the board members shall be as follows:
(1) A board member appointed under subsection (c)(3) who:
(i) Is a member of the General Assembly shall serve a term concurrent with their holding of public office.
(ii) Is not a member of the General Assembly shall serve a term concurrent with their appointing official's holding of public office.
(2) A board member appointed under subsection (c)(2) shall serve a term of four years, not to exceed more than two full consecutive four-year terms, except that the following shall apply:
(i) Initial appointments shall be so staggered that less than 50% of the membership shall expire each year.
(ii) A member's term shall continue until the member's replacement is appointed.
(g) Vacancies.--Vacancies in appointed positions shall be filled in the same manner as the original appointment. Members shall serve until their successors are appointed and qualified.
(h) Formation.--The exchange authority shall be formed within 60 days of the effective date of this section. Prior to formation of the exchange authority, the commissioner may take action necessary to effect a timely transition from a federally administered exchange to the Pennsylvania Health Insurance Exchange.
(i) Quorum.--A majority of the appointed members of the board shall constitute a quorum. Action may be taken by the board at a meeting upon a vote of a quorum of its members present in person or through electronic means. If a tie vote occurs at any meeting, it shall be the duty of the chairperson of the board to cast a second and deciding vote.
(j) Meetings.--The board shall meet at the call of the chairperson or as may be provided in the bylaws of the board. The board shall hold meetings at least quarterly, which shall be subject to the requirements of 65 Pa.C.S. Ch. 7 (relating to open meetings).
(k) Experience and interests.--For purposes of this chapter, the board shall assure that it complies with section 1321 of the Affordable Care Act (Public Law 111-148, 42 U.S.C. § 18041) and regulations promulgated under the Affordable Care Act regarding conflicts of interest and relevant experience.
(l) Conflict of interest.--The following apply:
(1) Except as provided under paragraph (2), a non-State employee board member shall not be subject to 65 Pa.C.S. Ch. 11 (relating to ethics standards and financial disclosure), including the requirements for filing statements of financial interests.
(2) A non-State employee board member may not engage in conduct that, if that member were a State employee, would constitute a conflict of interest under 65 Pa.C.S. Ch. 11.
(3) A majority of the voting members of the board may not have a conflict of interest as set forth in section 1321 of the Affordable Care Act and regulations promulgated under the Affordable Care Act.
Cross References. Section 9302 is referred to in section 9103 of this title.
§ 9303. Advisory council.
(a) Establishment.--An advisory council is created to advise the exchange authority under section 9304(g) (relating to meetings and operation).
(b) Composition.--The advisory council shall consist of the following members, who may not be in the employ of the Commonwealth:
(1) Four consumer representatives which include two representatives appointed by the Governor at least one of whom shall be a registered insurance exchange navigator or assister, one appointed by the President pro tempore of the Senate and one appointed by the Speaker of the House of Representatives.
(2) One representative selected by the Hospital and Healthsystem Association of Pennsylvania.
(3) One representative selected by the Pennsylvania Medical Society.
(4) One representative selected by the Pennsylvania Chamber of Business and Industry from a small group employer.
(5) One representative selected by the Pennsylvania Association of Health Underwriters.
§ 9304. Meetings and operation.
(a) Chairperson.--The members of the advisory council shall annually elect a chairperson from among its membership.
(b) Terms of members.--Each member's term shall be four years, not to exceed more than two full consecutive four-year terms, except that:
(1) Initial appointments shall be staggered to ensure less than 50% of the membership expire each year.
(2) A member's term shall continue until the member's successor is appointed.
(c) Meetings.--All meetings of the advisory council shall be conducted in accordance with 65 Pa.C.S. Ch. 7 (relating to open meetings), except as provided in this section. Meetings must be held in accordance with the following:
(1) The advisory council shall meet at least twice per year, with each meeting held prior to a meeting of the board. Additional meetings may be held upon reasonable notice at times and locations selected by the board. The council shall meet at the call of the chairperson or upon written request of three members of the council.
(2) The executive director of the exchange authority, or a designee, shall attend each meeting of the advisory council.
(3) Meeting dates shall be set by a majority vote of members of the advisory council or by call of the chairperson upon seven days' notice to all members.
(4) The advisory council shall post notice of the council's meetings on the exchange authority's publicly accessible Internet website at least five days prior to each meeting. The notice must specify the date, time and place of the meeting and shall state that the council's meetings are open to the general public.
(5) All action taken by the advisory council shall be taken in open public session and may not be taken except upon a majority vote of the members present at a meeting at which a quorum is present.
(d) Compensation.--The members of the advisory council shall not be entitled to any compensation for their services as members, except that, subject to the availability of money, the members of the advisory council shall be entitled to reimbursement for actual and necessary travel expenses. The expenses shall be paid for by the exchange fund.
(e) Vacancies.--Vacancies in appointed positions shall be filled in the same manner as the original appointment. Members shall serve until their successors are appointed and qualified.
(f) Quorum.--A majority of the advisory council members shall constitute a quorum and a quorum may act for the advisory council in all matters.
(g) Duties.--Upon request by the exchange authority, the advisory council shall advise the exchange authority on the following administrative and operational decisions:
(1) Initial operational decisions.
(2) Ongoing financing decisions.
(3) Other decisions as the exchange authority may deem appropriate.
Cross References. Section 9304 is referred to in sections 9303, 9305 of this title.
§ 9305. Powers and duties of exchange authority.
(a) Corporate operations.--The exchange authority shall exercise all powers and duties necessary and appropriate to carry out its purpose, including the following:
(1) Adopt bylaws.
(2) Employ staff.
(3) Make, execute and deliver contracts.
(4) Apply for, solicit and receive money from any source consistent with the purpose of this chapter.
(5) Establish priorities for, allocate and disburse money received.
(6) Submit annually to the Appropriations Committee of the Senate and the Appropriations Committee of the House of Representatives, at the same time the exchange authority submits its budget to the Governor, a copy of its budget request and all subsequently revised budget requests for the ensuing fiscal year. The budget shall include the amounts to be appropriated out of the fund established under section 9312 (relating to exchange fund) necessary to administer the provisions of this chapter and the conveyance of money to the Reinsurance Fund established under section 9510 (relating to Reinsurance Fund).
(7) Establish travel reimbursement policies for the exchange authority, its board and its advisory council.
(8) Coordinate with the appropriate Federal and State agencies to seek waivers from statutory or regulatory requirements as necessary to carry out the purposes of this chapter.
(9) Enter into other arrangements, including, without limitation, interagency agreements with Federal agencies and Commonwealth agencies or other states' agencies as may be necessary or appropriate to carry out the duties of the exchange authority.
(10) Give reasonable public notice of any policies and procedures the exchange authority may implement to accomplish the operation of the exchange authority.
(11) Perform other operational activities necessary or appropriate to further the purposes of this chapter.
(12) The board shall consider the advice of the advisory council provided under section 9304(g) (relating to meetings and operation).
(b) Programmatic duties.--The exchange authority shall perform all duties necessary or appropriate to advance its purpose, including the following:
(1) Educate consumers, including through outreach, a navigator program and postenrollment support.
(2) Assist individuals to access income-based assistance for which they may be eligible, including premium tax credits, cost-sharing reductions and government programs.
(3) Take into consideration the need for consumer choice in rural, urban and suburban areas across the Commonwealth.
(4) Assess and collect fees from on-exchange insurers to support the operation of the exchange under this chapter and the reinsurance program established under section 9502(b) (relating to implementation of waiver and establishment of reinsurance program), except that the exchange authority may not assess or collect any form of obligation other than an exchange user fee on total monthly premiums for on-exchange policies and unless approved by unanimous consent of the board, the fee may not exceed 3% of total monthly premiums for on-exchange policies. In no case may the fee exceed 3.5%.
(5) Disburse receipted fees, including to benefit the reinsurance program established under section 9502(b).
(c) Enforcement and State sovereignty.--The exchange authority shall ensure that the exchange complies with the Federal acts and rules and regulations that may be imposed by the Federal Government pursuant to the Federal acts in a manner that maintains State sovereignty over the health insurance market in this Commonwealth. Enforcement responsibilities shall be delegated to the appropriate State agency and shall be sufficient to prevent a determination by the United States Secretary of Health and Human Services that the Commonwealth has failed to substantially enforce any provision of the Federal acts.
Cross References. Section 9305 is referred to in section 9302 of this title.
§ 9306. Limitations.
Except as expressly provided in this chapter, nothing in this chapter shall be construed to limit or supersede the authority vested in a Commonwealth agency, including:
(1) The Insurance Department, including the department's authority to regulate the business of insurance within this Commonwealth, including health insurance policies whether offered on or off the exchange.
(2) The Department of Human Services, including with respect to the medical assistance program or the Children's Health Insurance Program.
(3) The Department of Health.
(4) The Office of Attorney General.
§ 9307. Confidentiality and disclosure.
(a) General rule.--Except as provided in this chapter, all working papers, recorded information, documents and copies of working papers, recorded information and documents produced by, obtained by or disclosed to the exchange authority or any other person in the course of the exercise of the exchange authority's powers and duties under this chapter:
(1) shall be confidential;
(2) shall not be subject to subpoena;
(3) shall not be subject to the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law;
(4) shall not be subject to discovery or admissible in evidence in any private civil action; and
(5) may not be made public by the exchange authority or any other person.
(b) Personal health and financial information.--The exchange authority shall protect personally identifiable health and financial information in accordance with all applicable Federal and State laws and regulations, including the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191, 110 Stat. 1936), the Health Information Technology for Economic and Clinical Health Act (Public Law 111-5, 123 Stat. 226-279 and 467-496) and implementing regulations.
(c) Information disclosure.--Subject to the confidentiality provisions of this section:
(1) Information shall be shared, as appropriate, for the purpose of determining and coordinating the eligibility of individuals for the exchange or any government program, including the Children's Health Insurance Program and medical assistance program, or for compliance with Federal law:
(i) Among the exchange authority and departments, including:
(A) The department.
(B) The Department of Aging.
(C) The Department of Drug and Alcohol Programs.
(D) The Department of Health.
(E) The Department of Human Services.
(F) The Department of Labor and Industry.
(G) The Department of Revenue.
(ii) Between the exchange authority and Federal agencies, including:
(A) The Centers for Medicare and Medicaid Services.
(B) The Treasury Department.
(2) Information may be disclosed:
(i) As necessary to comply with the audit requirements of section 9310 (relating to audits) and the reporting requirements of section 9311 (relating to reports), only in an aggregated and de-identified form.
(ii) In any circumstance, other than those described in paragraph (1) or subparagraph (i), only if the prior written consent of the company or person to which the information pertains has been obtained.
(d) Construction.--Nothing in this section shall be construed to prohibit the exchange authority from accessing the information necessary to carry out its responsibilities in accordance with law.
§ 9308. Not an entitlement.
Nothing in this chapter shall constitute an entitlement derived from the Commonwealth or a claim on any money of the Commonwealth.
§ 9309. Nonliability.
(a) General rule.--Except as provided under subsection (b), there shall be no liability on the part of and no cause of action of any nature may arise against the exchange authority, board or advisory council or members thereof, the commissioner, the department, an insurer, insurance producer or an exchange assister or an authorized representative, agent or employee thereof, for the use of information furnished pertaining to:
(1) An application for, inquiry concerning or enrollment or disenrollment in a health insurance policy or government program, including an inquiry regarding eligibility for enrollment or eligibility for a government program, relevant to health insurance available through an exchange or health care coverage or other benefits through a government program.
(2) A charge, assessment or fee imposed on or received from a person or entity relevant to the exchange.
(b) Limitation.--Subsection (a) shall apply only insofar as the person or entity is acting within the scope of the person's or entity's duties and responsibilities under this chapter.
§ 9310. Audits.
(a) Annual audit.--The accounts and books of the exchange authority shall be examined and audited annually by an independent certified public accounting firm. The audit shall at a minimum:
(1) Assess compliance with the requirements of this chapter.
(2) Identify any material weaknesses or significant deficiencies and identify ways to correct the material weaknesses or deficiencies.
(b) Sharing of audit.--By December 31 of each year, the exchange authority shall electronically share the audit of the preceding fiscal year required under subsection (a) and related documents by:
(1) Posting the following on the exchange authority's publicly accessible Internet website:
(i) The audit.
(ii) A summary of the audit, including any material weakness or significant deficiency identified and how the exchange authority intends to correct the material weakness or significant deficiency.
(2) Providing an electronic link to the posted audit under paragraph (1)(i) to the Secretary of the Senate and the Chief Clerk of the House of Representatives.
(3) Providing an electronic link to the posted audit under paragraph (1)(i) to the department.
(c) Payment.--The cost of the annual audit required under subsection (a) shall be paid for from money in the exchange fund.
Cross References. Section 9310 is referred to in section 9307 of this title.
§ 9311. Reports.
(a) Report.--The exchange authority shall prepare an annual report on the activities of the exchange authority for the year and:
(1) Electronically transmit the report to:
(i) The Governor.
(ii) The President pro tempore of the Senate.
(iii) The Minority Leader of the Senate.
(iv) The Speaker of the House of Representatives.
(v) The Minority Leader of the House of Representatives.
(vi) The chair and minority chair of:
(A) The Appropriations Committee of the Senate.
(B) The Appropriations Committee of the House of Representatives.
(C) The Banking and Insurance Committee of the Senate.
(D) The Insurance Committee of the House of Representatives.
(E) The Health and Human Services Committee of the Senate.
(F) The Health Committee of the House of Representatives.
(2) Post the report on the exchange authority's publicly accessible Internet website.
(b) Federal compliance.--The exchange authority shall comply with applicable Federal reporting requirements.
(c) Department notification.--The exchange authority shall provide a copy of or electronic link to the report provided under subsection (a) or (b) to the department.
Cross References. Section 9311 is referred to in section 9307 of this title.
§ 9312. Exchange fund.
(a) Establishment.--The Pennsylvania Health Insurance Exchange Fund is established as a special fund within the State Treasury. The exchange fund shall be administered by the exchange authority for the purposes set forth in this chapter, including the deposit of money that may be received pursuant to and disbursements permitted by this chapter.
(b) Deposit and use of money.--The following apply:
(1) Money deposited into the exchange fund shall be held for the purposes set forth in this chapter and may not be considered a part of the General Fund.
(2) Money in the exchange fund may only be used to effectuate the purposes of this chapter as determined by the exchange authority.
(3) All interest earned from the investment or deposit of money in the exchange fund shall be deposited into the exchange fund.
(4) All accrued and future earnings from money invested by the exchange authority and other accrued and future earnings from nonappropriated money, including, but not limited to, money obtained from the Federal Government and fees, shall be available to the exchange authority and shall be deposited into the State Treasury and may be utilized at the discretion of the board for carrying out any of the corporate purposes of the exchange authority.
(5) Placement of money by the State Treasurer in depositories or investments shall be consistent with guidelines approved by the board.
(6) For the purpose of administration, the exchange authority shall be subject to sections 610, 613 and 614 of act of April 9, 1929 (P.L.177, No.175), known as The Administrative Code of 1929.
(c) Nonlapsing and revolving fund.--The exchange fund shall be a nonlapsing fund. All money in the exchange fund and interest accrued are appropriated to the exchange authority for expenditure consistent with this chapter.
Cross References. Section 9312 is referred to in sections 9103, 9305 of this title.
§ 9313. Federal guidance.
Until the exchange authority promulgates regulations, the exchange authority shall operate the exchange pursuant to:
(1) any applicable Federal rules, regulations or guidance; or
(2) interim State guidelines consistent with this chapter.
§ 9314. Expiration.
Upon publication of the notice under section 9703(b) (relating to action by commissioner), the exchange authority shall initiate steps to cease operations of the exchange authority and shall cease operations not later than 15 months after publication of the notice.