I 
118TH CONGRESS 
1ST SESSION H. R. 2868 
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 HOUSE OF REPRESENTATIVES 
APRIL 25, 2023 
Mr. WALBERG (for himself, Ms. FOXX, Mr. GOOD of Virginia, Mr. ALLEN, 
Mr. CRENSHAW, and Mr. BURGESS) introduced the following bill; which 
was referred to the Committee on Education and the Workforce 
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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Association Health 
Plans Act’’. 
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SEC. 2. TREATMENT OF GROUP OR ASSOCIATION OF EM-
PLOYERS. 
(a) IN GENERAL.—Section 3(5) of the Employee Re-
tirement Income Security Act of 1974 (29 U.S.C. 
1002(5)) is amended— 
(1) by striking ‘‘The term’’ and inserting ‘‘(A) 
The term’’; and 
(2) by adding at the end the following: 
‘‘(B) For purposes of subparagraph (A), a group or 
association of employers shall be treated as an ‘employer’, 
regardless of whether the employers composing such group 
or association are in the same industry, trade, or profes-
sion, if such group or association— 
‘‘(i)(I) has established and maintains an em-
ployee welfare benefit plan that is a group health 
plan (as defined in section 733(a)(1)); 
‘‘(II) provides coverage under such plan to at 
least 51 employees after all of the employees em-
ployed by all of the employer members of such group 
or association have been aggregated and counted to-
gether as described in subparagraph (D); 
‘‘(III) has been actively in existence for at least 
2 years; 
‘‘(IV) has been formed and maintained in good 
faith for purposes other than providing medical care 
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(as defined in section 733(a)(2)) through the pur-
chase of insurance or otherwise; 
‘‘(V) does not condition membership in the 
group or association on any health status-related 
factor (as described in section 702(a)(1)) relating to 
any individual; 
‘‘(VI) makes coverage under such plan available 
to all employer members of such group or associa-
tion regardless of any health status-related factor 
(as described in section 702(a)(1)) relating to such 
employer members; 
‘‘(VII) does not provide coverage under such 
plan to any individual other than an employee of an 
employer member of such group or association; 
‘‘(VIII) has established a governing board with 
by-laws or other similar indications of formality to 
manage and operate such plan in both form and 
substance, of which at least 75 percent of the board 
members shall be made up of employer members of 
such group or association participating in the plan 
that are duly elected by each participating employer 
member casting 1 vote during a scheduled election; 
and 
‘‘(IX) is not a health insurance issuer (as de-
fined in section 733(b)(2)), and is not owned or con-
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‘‘(III) a participant of such plan subject to the 
eligibility determination and monitoring require-
ments set forth in clause (iii). 
‘‘(ii) For purposes of this subparagraph, the term 
‘self-employed individual’ means an individual who— 
‘‘(I) does not have any common law employees; 
‘‘(II) has an ownership right in a trade or busi-
ness, regardless of whether such trade or business is 
incorporated or unincorporated; 
‘‘(III) earns wages (as defined in section 
3121(a) of the Internal Revenue Code of 1986) or 
self-employment income (as defined in section 
1402(b) of such Code) from such trade or business; 
and 
‘‘(IV) works at least 10 hours per week or 40 
hours per month providing personal services to such 
trade or business. 
‘‘(iii) The board of a group or association of employ-
ers shall— 
‘‘(I) initially determine whether an individual 
meets the requirements under clause (ii) to be con-
sidered a self-employed individual for the purposes 
of being treated as an— 
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‘‘(aa) employer member of such group or 
association (in accordance with clause (i)(I)); 
and 
‘‘(bb) employee who may participate in the 
employee welfare benefit plan established and 
maintained by such group or association (in ac-
cordance with clause (i)(II)); 
‘‘(II) through reasonable monitoring proce-
dures, periodically determine whether the individual 
continues to meet such requirements; and 
‘‘(III) if the board determines that an indi-
vidual no longer meets such requirements, not make 
such plan coverage available to such individual (or 
dependents thereof) for any plan year following the 
plan year during which the board makes such deter-
mination. If, subsequent to a determination that an 
individual no longer meets such requirements, such 
individual furnishes evidence of satisfying such re-
quirements, such individual (and dependents thereof) 
shall be eligible to receive plan coverage. 
‘‘(D) For purposes of subparagraph (B), all of the 
employees (including self-employed individuals) employed 
by all of the employer members (including self-employed 
individuals) of a group or association of employers shall 
be— 
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‘‘(i) treated as employed by a single employer; 
and 
‘‘(ii) aggregated and counted together for pur-
poses of any regulation of an employee welfare ben-
efit plan established and maintained by such group 
or association.’’. 
(b) DETERMINATION OF EMPLOYER OR JOINT EM-
PLOYER STATUS.—The provision of employee welfare ben-
efit plan coverage by a group or association of employers 
shall not be construed as evidence for establishing an em-
ployer or joint employer relationship under any Federal 
or State law. 
SEC. 3. RULES APPLICABLE TO EMPLOYEE WELFARE BEN-
EFIT PLANS ESTABLISHED AND MAINTAINED 
BY A GROUP OR ASSOCIATION OF EMPLOY-
ERS. 
Part 7 of subtitle B of title I of the Employee Retire-
ment Income Security Act of 1974 (29 U.S.C. 1181, et 
seq.) is amended by adding at the end the following: 
‘‘SEC. 736. RULES APPLICABLE TO EMPLOYEE WELFARE 
BENEFIT PLANS ESTABLISHED AND MAIN-
TAINED BY A GROUP OR ASSOCIATION OF 
EMPLOYERS. 
‘‘(a) PREMIUM RATES FOR A GROUP OR ASSOCIA-
TION OF EMPLOYERS.— 
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‘‘(1)(A) In the case of an employee welfare ben-
efit plan established and maintained by a group or 
association of employers described in section 
3(5)(B), such plan may— 
‘‘(i) establish base premium rates formed 
on an actuarially sound, modified community 
rating methodology that considers the pooling 
of all plan participant claims; and 
‘‘(ii) utilize the specific risk profile of each 
employer member of such group or association 
to determine contribution rates for each such 
employer member’s share of a premium by ac-
tuarially adjusting above or below the estab-
lished base premium rates. 
‘‘(B) For purposes of paragraph (1), the term 
‘employer member’ means— 
‘‘(i) an employer who is a member of such 
group or association of employers and employs 
at least 1 common law employee; or 
‘‘(ii) a group made up solely of self-em-
ployed individuals, within which all of the self- 
employed individual members of such group or 
association are aggregated together as a single 
employer member group, provided the group in-
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cludes at least 20 self-employed individual 
members. 
‘‘(2) In the event a group or association is 
made up solely of self-employed individuals (and no 
employers with at least 1 common law employee are 
members of such group or association), the employee 
welfare benefit plan established by such group or as-
sociation shall— 
‘‘(A) treat all self-employed individuals 
who are members of such group or association 
as a single risk pool; 
‘‘(B) pool all plan participant claims; and 
‘‘(C) charge each plan participant the 
same premium rate. 
‘‘(b) DISCRIMINATION AND PRE-EXISTING CONDI-
TION PROTECTIONS.—An employee welfare benefit plan 
established and maintained by a group or association of 
employers described in section 3(5)(B) shall be prohibited 
from— 
‘‘(1) establishing any rule for eligibility (includ-
ing continued eligibility) of any individual (including 
an employee of an employer member or a self-em-
ployed individual, or a dependent of such employee 
or self-employed individual) to enroll for benefits 
under the terms of the plan that discriminates based 
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on any health status-related factor that relates to 
such individual (consistent with the rules under sec-
tion 702(a)(1)); 
‘‘(2) requiring an individual (including an em-
ployee of an employer member or a self-employed in-
dividual, or a dependent of such employee or self- 
employed individual), as a condition of enrollment or 
continued enrollment under the plan, to pay a pre-
mium or contribution that is greater than the pre-
mium or contribution for a similarly situated indi-
vidual enrolled in the plan based on any health sta-
tus-related factor that relates to such individual 
(consistent with the rules under section 702(b)(1)); 
and 
‘‘(3) denying coverage under such plan on the 
basis of a pre-existing condition (consistent with the 
rules under section 2704 of the Public Health Serv-
ice Act).’’. 
SEC. 4. RULE OF CONSTRUCTION. 
Nothing in this Act shall be construed to exempt a 
group health plan which is an employee welfare benefit 
plan offered through a group or association of employers 
from the requirements of part 7 of subtitle B of title I 
of the Employee Retirement Income Security Act of 1974 
(29 U.S.C. 1181 et seq.), including the provisions of part 
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