§ 31–3303.06. Availability.

(a) If coverage is offered to small employers under this subchapter, such coverage shall be offered and made available to every small employer that applies for such coverage. Participation in such plan shall be made available to all the eligible employees of a covered small employer and their dependents. No coverage may be offered to only certain eligible employees or their dependents and no employees or their dependents may be excluded or charged additional premiums because of health status.

(b) No coverage offered under this subchapter shall exclude an employer based solely on the nature of the employer’s business.

(c) Subsection (a) of this section shall not apply to health insurance coverage offered by a health insurer if such coverage is made available in the small group market only through one or more bona fide associations.

(d) A health insurer that offers health insurance coverage in a small group market through a network plan may:

(1) Limit the employees that may apply for such coverage to those eligible individuals who live, work, or reside in the service area for such network plan; or

(2) Within the service area of such plan, deny such coverage to such employers if the health insurer has demonstrated, if required, to the satisfaction of the Commissioner that:

(A) It will not have the capacity to deliver services adequately to enrollees of any additional groups because of its obligations to existing group contract holders and enrollees; and

(B) It is applying this subdivision uniformly to all employers without regard to the claims experience of those employers and their employees (and their dependents) or any health status-related factors relating to such employees and dependents.

(e) A health insurer, upon denying health insurance coverage in the District of Columbia in accordance with subsection (d)(2) of this section, may not offer coverage in the small group market within such service area for a period of 180 days after the date such coverage is denied.

(f) A health insurer may deny health insurance coverage in the small group market if the health insurer has demonstrated, if required, to the satisfaction of the Commissioner that:

(1) It does not have the financial reserves necessary to underwrite additional coverage; and

(2) It is applying this subdivision uniformly to all employers in the small group market in the District of Columbia consistent with the laws of this District of Columbia and without regard to the claims experience of those employers and their employees (and their dependents) or any health status-related factor relating to such employees and dependents.

(g)(1) No health insurer offering group health insurance coverage is required to offer coverage or accept applications pursuant to subsection (a) of this section if the Commissioner determines that acceptance of an application or applications would result in the health insurer being declared an impaired insurer.

(2) A health insurer offering group health insurance coverage that does not offer coverage pursuant to subsection (f) of this section may not offer coverage to small employers until the Commissioner determines that the health insurer is no longer impaired.

(h) A health insurer upon denying health insurance coverage in connection with group health plans in accordance with subsection (d) of this section in the District of Columbia may not offer coverage in connection with group health plans in the small group market for a period of 180 days after the date such coverage is denied or until the health insurer has demonstrated to the satisfaction of the Commissioner that the health insurer has sufficient financial reserves to underwrite additional coverage, whichever is later.

(i)(1) Nothing in this chapter shall be construed to preclude a health insurer from establishing employer contribution rules or group participation rules in connection with a health benefit plan offered in the small group market.

(2) As used in this subchapter, the term “employer contribution rule” means a requirement relating to the minimum level or amount of employer contribution toward the premium for enrollment of eligible individuals, and the term “group participation rule” means a requirement relating to the minimum number of eligible employees that must be enrolled in relation to a specified percentage or number of eligible employees.

(3) Any employer contribution rule or group participation rule shall be applied uniformly among small employers without reference to the size of the small employer group, health status of the small employer group, or other factors.

(j)(1) A group health plan or health insurer offering group health insurance coverage that fails to fairly market to small employers as required by this section may not offer coverage in the District of Columbia to new small employers until the later of 180 days after the unfair marketing has been identified and proven to the Commissioner or the date on which the health insurer submits, and the Commissioner approves, a plan to fairly market to the health insurer’s established geographic service area.

(2) No health maintenance organization is required to offer coverage or accept applications pursuant to subsection (a) of this section in the case of any of the following:

(A) To small employers where the policy would not be delivered or issued for delivery in the health maintenance organization’s approved service areas;

(B) To an employee where the employee does not reside or work within the health maintenance organization’s approved service areas; or

(C) Within an area where the health maintenance organization demonstrates to the satisfaction of the Commissioner that it will not have the capacity within that area and its network of providers to deliver services adequately to the enrollees of those groups because of its obligations to existing group contract holders and enrollees.

(3) A health maintenance organization that does not offer coverage pursuant to this subsection may not offer coverage in the applicable area to new employer groups with more than 50 eligible employees until the later of 180 days after closure to new applications or the date on which the carrier health maintenance organization notifies the Commissioner that it has regained capacity to deliver services to small employers.