II 

117TH CONGRESS 

2D SESSION S. 5303 

To amend the Employee Retirement Income Security Act of 1974 to allow 

health marketplace pools to be deemed an employer under section 3(5) 

of such Act for purposes of offering a group health plan or group 

health insurance coverage, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 20, 2022 

Mr. PAUL introduced the following bill; which was read twice and referred to 

the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 to allow health marketplace pools to be deemed 

an employer under section 3(5) of such Act for purposes 

of offering a group health plan or group health insurance 

coverage, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Health Marketplace 

5 for All Act of 2022’’. 


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1 SEC. 2. HEALTH MARKETPLACE POOLS DEEMED AN ‘‘EM2 PLOYER’’ FOR PURPOSES OF OFFERING 

3 GROUP HEALTH PLANS OR GROUP HEALTH 

4 INSURANCE COVERAGE. 

5 (a) DEFINITION OF EMPLOYER.—Section 3(5) of the 

6 Employee Retirement Income Security Act of 1974 (29 

7 U.S.C. 1002(5)) is amended by adding at the end the fol8 lowing: ‘‘Such term shall be deemed to include, for pur9 poses of offering a group health plan (as defined in section 

10 733(a)(1)) or group health insurance coverage (as defined 

11 in section 733(b)(4)) (which, notwithstanding any other 

12 provision of law, may include such a plan or coverage cov13 ering prescription or nonprescription drugs as the only 

14 benefit offered by the plan or coverage in accordance with 

15 section 736(b)(5)(B)), any entity that meets the require16 ments under section 736(b).’’. 

17 (b) GROUP HEALTH PLANS AND GROUP HEALTH IN18 SURANCE COVERAGE.—Part 7 of subtitle B of title I of 

19 the Employee Retirement Income Security Act of 1974 

20 (29 U.S.C. 1181 et seq.) is amended by adding at the end 

21 the following: 


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1 ‘‘SEC. 736. HEALTH MARKETPLACE POOLS DEEMED AN ‘EM2 PLOYER’ FOR PURPOSES OF OFFERING 

3 GROUP HEALTH PLANS OR GROUP HEALTH 

4 INSURANCE COVERAGE. 

5 ‘‘(a) IN GENERAL.—An entity (referred to in this sec6 tion as a ‘health marketplace pool’) that meets the require7 ments under subsection (b) shall be deemed an employer 

8 under section 3(5) for purposes of offering a group health 

9 plan or group health insurance coverage (which, notwith10 standing any other provision of law, may include such a 

11 plan or coverage covering prescription or nonprescription 

12 drugs as the only benefit offered by the plan or coverage 

13 in accordance with subsection (b)(5)(B)). 

14 ‘‘(b) REQUIREMENTS FOR HEALTH MARKETPLACE

15 POOLS.—The requirements under this subsection are each 

16 of the following: 

17 ‘‘(1) ORGANIZATION.—The health marketplace 

18 pool shall— 

19 ‘‘(A) be formed and maintained in good 

20 faith for a purpose that includes the formation 

21 of a risk pool in order to offer group health in22 surance coverage or a group health plan to its 

23 members; and 

24 ‘‘(B) not condition membership in the 

25 health marketplace pool on any health status26 related factor relating to an individual (includVerDate Sep 11 2014 21:56 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5303.IS S5303

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1 ing an employee of an employer or a dependent 

2 of an employee). 

3 ‘‘(2) OFFERING GROUP HEALTH PLANS AND

4 GROUP HEALTH INSURANCE COVERAGE.— 

5 ‘‘(A) DIFFERENT GROUPS.— 

6 ‘‘(i) IN GENERAL.—The health mar7 ketplace pool, which may be in conjunction 

8 with a health insurance issuer that offers 

9 group health insurance coverage through 

10 the health marketplace pool, shall make 

11 available a group health plan or group 

12 health insurance coverage to all members 

13 of the health marketplace pool (and, in the 

14 case of members that are employers, em15 ployees of the employers) at rates that— 

16 ‘‘(I) are established by the health 

17 marketplace pool, or a health insur18 ance issuer contracting with such 

19 health marketplace pool, on a policy 

20 or product specific basis; and 

21 ‘‘(II) subject to sections 701 and 

22 702, may vary for individuals covered 

23 through the health marketplace pool. 

24 ‘‘(ii) PERMISSIBLE COVERAGE FOR

25 DEPENDENTS.—Such group health plan or 


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1 group health insurance coverage may be 

2 made available under clause (i) to any de3 pendents of members of the health market4 place pool or dependents of employees of 

5 employers that are such members. 

6 ‘‘(B) NONDISCRIMINATION IN COVERAGE

7 OFFERED.— 

8 ‘‘(i) IN GENERAL.—Subject to clause 

9 (ii), the health marketplace pool may not 

10 offer coverage under a group health plan 

11 or group health insurance coverage to a 

12 member of the health marketplace pool un13 less the same coverage is offered to all 

14 such members of the health marketplace 

15 pool. 

16 ‘‘(ii) CONSTRUCTION.—Nothing in 

17 this subsection shall be construed as re18 quiring a health insurance issuer or group 

19 health plan to provide coverage outside the 

20 service area of the issuer or plan, or pre21 venting a health insurance issuer or group 

22 health plan from underwriting or from ex23 cluding or limiting the coverage on any in24 dividual, subject to the requirements under 

25 sections 701 and 702. 


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1 ‘‘(C) ASSUMPTION OF RISK.—The health 

2 marketplace pool may provide— 

3 ‘‘(i) group health insurance coverage 

4 through a contract with a health insurance 

5 issuer; or 

6 ‘‘(ii) a group health plan through self7 insurance. 

8 ‘‘(3) GEOGRAPHIC AREAS.—Nothing in this 

9 subsection shall be construed as preventing the es10 tablishment and operation of more than 1 health 

11 marketplace pool in a geographic area or as limiting 

12 the number of health marketplace pools that may 

13 operate in any area. 

14 ‘‘(4) PROVISION OF ADMINISTRATIVE SERVICES

15 TO PURCHASERS.—The health marketplace pool may 

16 provide administrative services for members. Such 

17 services may include accounting, billing, and enroll18 ment information. 

19 ‘‘(5) DRUG COVERAGE.—The group health plan 

20 or group health insurance coverage offered by the 

21 health marketplace pool may offer— 

22 ‘‘(A) drug coverage, including coverage of 

23 over-the-counter drugs, in combination with 

24 other benefits covered by the group health plan 

25 or group health insurance coverage; or 


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1 ‘‘(B) notwithstanding any other provision 

2 of law, drug coverage, including coverage of 

3 over-the-counter drugs, as the only benefit cov4 ered by the group health plan or group health 

5 insurance coverage. 

6 ‘‘(6) MEMBERS.— 

7 ‘‘(A) IN GENERAL.—With respect to an in8 dividual who is a member of the health market9 place pool— 

10 ‘‘(i) the individual may enroll for cov11 erage under the group health plan or 

12 group health insurance coverage offered by 

13 the health marketplace pool (including, if 

14 applicable, enrollment for coverage for a 

15 dependent of such individual); or 

16 ‘‘(ii) the employer of the individual 

17 may enroll the individual for coverage 

18 under the group health plan or group 

19 health insurance coverage offered by the 

20 health marketplace pool (including, if ap21 plicable, enrollment for coverage for a de22 pendent of such individual). 

23 ‘‘(B) ELIGIBILITY.—An individual shall be 

24 eligible to be a member of the health market25 place pool if such individual is— 


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1 ‘‘(i) a member of an entity that estab2 lishes or joins the health marketplace pool 

3 (or a dependent of such a member, as ap4 plicable); 

5 ‘‘(ii) an employee of a member of an 

6 entity described in clause (i) (or a depend7 ent of such an employee, as applicable); or 

8 ‘‘(iii) an employee of an entity (or a 

9 dependant of such an employee, as applica10 ble) controlled by a member of an entity 

11 described in clause (i). 

12 ‘‘(C) RULES FOR ENROLLMENT.—Nothing 

13 in this paragraph shall preclude the health mar14 ketplace pool from establishing rules of enroll15 ment and reenrollment of members. Such rules 

16 shall be applied consistently to all members 

17 within the health marketplace pool and shall 

18 not be based in any manner on health status19 related factors in accordance with sections 701 

20 and 702. 

21 ‘‘(c) DETERMINATION OF EMPLOYER AND JOINT EM22 PLOYER STATUS.—Participating in or facilitating a group 

23 health plan or group health insurance coverage under this 

24 section shall not be construed as establishing under any 

25 Federal or State law— 


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1 ‘‘(1) an employer relationship for any purpose 

2 other than offering the group health plan or group 

3 health insurance coverage; or 

4 ‘‘(2) a joint employer relationship for any pur5 pose. 

6 ‘‘(d) DEFINITION.—In this section, the term ‘depend7 ent’, as applied to a group health plan or group health 

8 insurance coverage offered in a State, shall have the mean9 ing applied to such term with respect to such plan or cov10 erage under the State law applying to such plan or cov11 erage. Such term may include the spouse and children of 

12 the individual involved in accordance with such State 

13 law.’’. 

14 SEC. 3. CONFORMING AMENDMENTS. 

15 Section 3 of the Employee Retirement Income Secu16 rity Act of 1974 (29 U.S.C. 1002) is amended— 

17 (1) in paragraph (6), by inserting before the pe18 riod ‘‘, except (with respect to an entity meeting the 

19 requirements under section 736(b)) such term in20 cludes any member of such entity’’; 

21 (2) in paragraph (21)— 

22 (A) in subparagraph (A), by striking ‘‘sub23 paragraph (B)’’ and inserting ‘‘subparagraphs 

24 (B) and (C)’’; and 

25 (B) by adding at the end the following: 


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1 ‘‘(C) With respect to a person that is a member of 

2 an entity (referred to in section 736 and this subpara3 graph as a ‘health marketplace pool’) that meets the re4 quirements of section 736(b) and offers a group health 

5 plan (as defined in section 733(a)(1)) or group health in6 surance coverage (as defined in section 733(b)(4)) (which, 

7 notwithstanding any other provision of law, may include 

8 such a plan or coverage covering prescription or non9 prescription drugs as the only benefit offered by the plan 

10 or coverage), membership in the health marketplace pool 

11 shall not by itself cause the person to be a fiduciary with 

12 respect to the group health plan or group health insurance 

13 coverage.’’; and 

14 (3) in paragraph (40)(A)— 

15 (A) in clause (ii), by striking ‘‘, or’’ and in16 serting ‘‘,’’; 

17 (B) in clause (iii), by striking the period 

18 and inserting ‘‘, or’’; and 

19 (C) by adding at the end the following: 

20 ‘‘(iv) as a group health plan (as defined in sec21 tion 733(a)(1)), or group health insurance coverage 

22 (as defined in section 733(b)(4)), offered by an enti23 ty meeting the requirements under section 736(b) 

24 (which, notwithstanding any other provision of law, 

25 may include such an entity offering such a plan or 


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1 coverage covering prescription or nonprescription 

2 drugs as the only benefit offered by the plan or cov3 erage).’’. 

Æ 


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