ered a self-employed individual for the purposes of 
being treated as an— 
‘‘(aa) employer member of such group or as-
sociation (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 procedures, 
periodically determine whether the individual con-
tinues to meet such requirements; and 
‘‘(III) if the board determines that an individual 
no longer meets such requirements, not make such 
plan coverage available to such individual (or de-
pendents thereof) for any plan year following the plan 
year during which the board makes such determina-
tion. If, subsequent to a determination that an indi-
vidual no longer meets such requirements, such indi-
vidual furnishes evidence of satisfying such require-
ments, such individual (and dependents thereof) shall 
be eligible to receive plan coverage. 
‘‘(D) For purposes of subparagraph (B), all of the em-
ployees (including self-employed individuals) employed by 
all of the employer members (including self-employed indi-
viduals) 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 benefit 
plan established and maintained by such group or as-
sociation.’’. 
(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 GROUP HEALTH PLANS ES-
TABLISHED AND MAINTAINED BY A GROUP 
OR ASSOCIATION OF EMPLOYERS. 
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 GROUP HEALTH PLANS 
ESTABLISHED AND MAINTAINED BY A GROUP 
OR ASSOCIATION OF EMPLOYERS. 
‘‘(a) PREMIUM RATES FOR A GROUP OR ASSOCIATION 
OF EMPLOYERS.— 
‘‘(1)(A) In the case of a group health plan estab-
lished and maintained by a group or association of 
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employers described in section 3(5)(B), such plan 
may— 
‘‘(i) establish base premium rates formed on 
an actuarially sound, modified community rat-
ing 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 em-
ployer member’s share of a premium by actuari-
ally adjusting above or below the established 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-
cludes at least 20 self-employed individual mem-
bers. 
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‘‘(2) In the event a group or association is made 
up solely of self-employed individuals (and no em-
ployers with at least 1 common law employee are 
members of such group or association), the group 
health plan established by such group or association 
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 CONDITION 
PROTECTIONS.—A group health plan established and main-
tained 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 (includ-
ing 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 on any 
health status-related factor that relates to such indi-
vidual (consistent with the rules under section 
702(a)(1)); 
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‘‘(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-em-
ployed 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 (con-
sistent 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 Service 
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 A 
of title XXVII of the Public Health Service Act as incor-
porated by reference into this Act through section 715. 
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Union Calendar No. 87 
118TH CONGRESS 
1ST SESSION 
H. R. 2868 
[Report No. 118–112] 
A BILL 
To amend the Employee Retirement Income Secu-
rity Act of 1974 to clarify the treatment of cer-
tain association health plans as employers, and 
for other purposes. 
JUNE 14, 2023 
Reported with an amendment, committed to the Com-
mittee of the Whole House on the State of the Union, 
and ordered to be printed 
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