II 

118TH CONGRESS 

1ST SESSION S. 3167 

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

the treatment of certain association health plans as employers, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 30, 2023 

Mr. BRAUN 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 clarify the treatment of certain association 

health plans as employers, 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 ‘‘Multiple Employer 

5 Welfare Arrangement Act’’ or the ‘‘MEWA Act’’. 


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1 SEC. 2. TREATMENT OF GROUP OR ASSOCIATION OF EM2 PLOYERS. 

3 (a) IN GENERAL.—Section 3(5) of the Employee Re4 tirement Income Security Act of 1974 (29 U.S.C. 

5 1002(5)) is amended— 

6 (1) by striking ‘‘The term’’ and inserting ‘‘(A) 

7 The term’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(B) For purposes of subparagraph (A), a group or 

10 association of employers shall be treated as an ‘employer’, 

11 regardless of whether the employers composing such group 

12 or association are in the same industry, trade, or profes13 sion, if such group or association— 

14 ‘‘(i)(I) has established and maintains an em15 ployee welfare benefit plan that is a group health 

16 plan (as defined in section 733(a)(1)); 

17 ‘‘(II) provides coverage under such plan to at 

18 least 51 employees after all of the employees em19 ployed by all of the employer members of such group 

20 or association have been aggregated and counted to21 gether as described in subparagraph (D); 

22 ‘‘(III) has been actively in existence for at least 

23 2 years; 

24 ‘‘(IV) has been formed and maintained in good 

25 faith for purposes other than providing medical care 


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1 (as defined in section 733(a)(2)) through the pur2 chase of insurance or otherwise; 

3 ‘‘(V) does not condition membership in the 

4 group or association on any health status-related 

5 factor (as described in section 702(a)(1)) relating to 

6 any individual; 

7 ‘‘(VI) makes coverage under such plan available 

8 to all employer members of such group or associa9 tion regardless of any health status-related factor 

10 (as described in section 702(a)(1)) relating to such 

11 employer members; 

12 ‘‘(VII) does not provide coverage under such 

13 plan to any individual other than an employee of an 

14 employer member of such group or association; 

15 ‘‘(VIII) has established a governing board with 

16 by-laws or other similar indications of formality to 

17 manage and operate such plan in both form and 

18 substance, of which at least 75 percent of the board 

19 members shall be made up of employer members of 

20 such group or association participating in the plan 

21 that are duly elected by each participating employer 

22 member casting 1 vote during a scheduled election; 

23 ‘‘(IX) is not a health insurance issuer (as de24 fined in section 733(b)(2)), and is not owned or con25 trolled by such a health insurance issuer or by a 


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1 subsidiary or affiliate of such a health insurance 

2 issuer, other than to the extent such a health insur3 ance issuer may participate in the group or associa4 tion as a member; 

5 ‘‘(ii) is structured in good faith with any set of 

6 criteria to qualify for such treatment in any advisory 

7 opinion issued prior to the date of enactment of the 

8 Multiple Employer Welfare Arrangement Act; or 

9 ‘‘(iii) meets any other set of criteria to qualify 

10 for such treatment that the Secretary by regulation 

11 may provide. 

12 ‘‘(C)(i) For purposes of subparagraph (B), a self-em13 ployed individual shall be treated as— 

14 ‘‘(I) an employer who may become a member of 

15 a group or association of employers; 

16 ‘‘(II) an employee who may participate in an 

17 employee welfare benefit plan established and main18 tained by such group or association; and 

19 ‘‘(III) a participant of such plan subject to the 

20 eligibility determination and monitoring require21 ments set forth in clause (iii). 

22 ‘‘(ii) For purposes of this subparagraph, the term 

23 ‘self-employed individual’ means an individual who— 

24 ‘‘(I) does not have any common law employees; 


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1 ‘‘(II) has a bona fide ownership right in a trade 

2 or business, regardless of whether such trade or 

3 business is incorporated or unincorporated; 

4 ‘‘(III) earns wages (as defined in section 

5 3121(a) of the Internal Revenue Code of 1986) or 

6 self-employment income (as defined in section 

7 1402(b) of such Code) from such trade or business; 

8 and 

9 ‘‘(IV) works at least 10 hours a week or 40 

10 hours per month providing personal services to such 

11 trade or business. 

12 ‘‘(iii) The board of a group or association of employ13 ers shall— 

14 ‘‘(I) initially determine whether an individual 

15 meets the requirements under clause (ii) to be con16 sidered to a self-employed individual for the pur17 poses of being treated as an— 

18 ‘‘(aa) employer member of such group or 

19 association (in accordance with clause (i)(I)); 

20 and 

21 ‘‘(bb) employee who may participate in the 

22 employee welfare benefit plan established and 

23 maintained by such group or association (in ac24 cordance with clause (i)(II)); 


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1 ‘‘(II) through reasonable monitoring proce2 dures, periodically determine whether the individual 

3 continues to meet such requirements; and 

4 ‘‘(III) if the board determines that an indi5 vidual no longer meets such requirements, not make 

6 such plan coverage available to such individual (or 

7 dependents thereof) for any plan year following the 

8 plan year during which the board makes such deter9 mination. If, subsequent to a determination that an 

10 individual no longer meets such requirements, such 

11 individual furnishes evidence of satisfying such re12 quirements, such individual (and dependents thereof) 

13 shall be eligible to receive plan coverage. 

14 ‘‘(D) For purposes of subparagraph (B), all of the 

15 employees (including self-employed individuals) employed 

16 by all of the employer members (including self-employed 

17 individuals) of a group or association of employers shall 

18 be— 

19 ‘‘(i) treated as participants in a single plan 

20 multiple employer welfare arrangement; and 

21 ‘‘(ii) aggregated and counted together for pur22 poses of any regulation of an employee welfare ben23 efit plan established and maintained by such group 

24 or association.’’. 


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1 (b) DETERMINATION OF EMPLOYER OR JOINT EM2 PLOYER STATUS.—The provision of employee welfare ben3 efit plan coverage by a group or association of employers 

4 shall not be construed as evidence for establishing an em5 ployer or joint employer relationship under any Federal 

6 or State law. 

7 SEC. 3. RULES APPLICABLE TO EMPLOYEE WELFARE BEN8 EFIT PLANS ESTABLISHED AND MAINTAINED 

9 BY A GROUP OR ASSOCIATION OF EMPLOY10 ERS. 

11 Part 7 of subtitle B of title I of the Employee Retire12 ment Income Security Act of 1974 (29 U.S.C. 1181, et 

13 seq.) is amended by adding at the end the following: 

14 ‘‘SEC. 736. RULES APPLICABLE TO EMPLOYEE WELFARE 

15 BENEFIT PLANS ESTABLISHED AND MAIN16 TAINED BY A GROUP OR ASSOCIATION OF 

17 EMPLOYERS. 

18 ‘‘(a) PREMIUM RATES FOR A GROUP OR ASSOCIA19 TION OF EMPLOYERS.— 

20 ‘‘(1)(A) In the case of an employee welfare ben21 efit plan established and maintained by a group or 

22 association of employers described in section 

23 3(5)(B), such plan may, to the extent not prohibited 

24 under State law— 


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1 ‘‘(i) establish base premium rates formed 

2 on an actuarially sound, modified community 

3 rating methodology that considers the pooling 

4 of all plan participant claims; and 

5 ‘‘(ii) utilize the specific risk profile of each 

6 employer member of such group or association 

7 to determine contribution rates for each such 

8 employer member’s share of a premium by ac9 tuarially adjusting above or below the estab10 lished base premium rates. 

11 ‘‘(B) For purposes of paragraph (1), the term 

12 ‘employer member’ means— 

13 ‘‘(i) an employer who is a member of such 

14 group or association of employers and employs 

15 at least 1 common law employee; or 

16 ‘‘(ii) a group made up solely of self-em17 ployed individuals, within which all of the self18 employed individual members of such group or 

19 association are aggregated together as a single 

20 employer member group, provided the group in21 cludes at least 20 self-employed individual 

22 members. 

23 ‘‘(2) In the event a group or association is 

24 made up solely of self-employed individuals (and no 

25 employers with at least 1 common law employee are 


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1 members of such group or association), the employee 

2 welfare benefit plan established by such group or as3 sociation shall— 

4 ‘‘(A) treat all self-employed individuals 

5 who are members of such group or association 

6 as a single risk pool; 

7 ‘‘(B) pool all plan participant claims; and 

8 ‘‘(C) charge each plan participant the 

9 same premium rate. 

10 ‘‘(b) DISCRIMINATION AND PRE-EXISTING CONDI11 TION PROTECTIONS.—An employee welfare benefit plan 

12 established and maintained by a group or association of 

13 employers described in section 3(5)(B) shall be prohibited 

14 from— 

15 ‘‘(1) establishing any rule for eligibility (includ16 ing continued eligibility) of any individual (including 

17 an employee of an employer member or a self-em18 ployed individual, or a dependent of such employee 

19 or self-employed individual) to enroll for benefits 

20 under the terms of the plan that discriminates based 

21 on any health status-related factor that relates to 

22 such individual (consistent with the rules under sec23 tion 702(a)(1)); 

24 ‘‘(2) requiring an individual (including an em25 ployee of an employer member or a self-employed inVerDate Sep 11 2014 22:31 Oct 31, 2023 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3167.IS S3167

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1 dividual, or a dependent of such employee or self2 employed individual), as a condition of enrollment or 

3 continued enrollment under the plan, to pay a pre4 mium or contribution that is greater than the pre5 mium or contribution for a similarly situated indi6 vidual enrolled in the plan based on any health sta7 tus-related factor that relates to such individual 

8 (consistent with the rules under section 702(b)(1)); 

9 and 

10 ‘‘(3) denying coverage under such plan on the 

11 basis of a pre-existing condition (consistent with the 

12 rules under section 2704 of the Public Health Serv13 ice Act).’’. 

14 SEC. 4. RULE OF CONSTRUCTION. 

15 Nothing in this Act shall be construed to exempt a 

16 group health plan which is an employee welfare benefit 

17 plan offered through a group or association of employers 

18 from the requirements of part 7 of subtitle B of title I 

19 of the Employee Retirement Income Security Act of 1974 

20 (29 U.S.C. 1181 et. seq.), including the provisions of part 

21 A of title XXVII of the Public Health Service Act as incor22 porated by reference into this Act through section 715. 

Æ 


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