An Act To Clarify the Deferral of the Pooled Market and Link Small Employer Clear Choice to Pooling in the Made for Maine Health Coverage Act
Maine Legislature, Session 130, LD 1725
Committee: Health Coverage, Insurance and Financial Services
Sponsors: SANBORN
Amends: 24-A MRSA §2792, 24-A MRSA §2793, 24-A MRSA §3957, 24-A MRSA §3958

Legislative Document
No. 1725
S.P. 570
In Senate, May 19, 2021
An Act To Clarify the Deferral of the Pooled Market and Link 
Small Employer Clear Choice to Pooling in the Made for Maine 
Health Coverage Act
Reference to the Committee on Health Coverage, Insurance and Financial Services 
suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator SANBORN of Cumberland.  (GOVERNOR'S BILL)
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Be it enacted by the People of the State of Maine as follows:
Sec. 1.  24-A MRSA §2792, sub-§1, as enacted by PL 2019, c. 653, Pt. B, §2, is 
amended to read:
1.  Pooled market established.  Subject to the requirements of subsection 5, all 
individual and small group health plans offered in this State with effective dates of coverage 
on or after January 1, 2022 2023 must be offered through a pooled market.  A health 
insurance carrier offering an individual health plan subject to this section shall make the 
plan available to all eligible small employers within the plan's approved service area, and 
a health insurance carrier offering a small group health plan subject to this section shall 
make the plan available to all eligible individuals residing within the plan's approved 
service area.  This subsection does not require the Maine Health Insurance Marketplace 
established in Title 22, chapter 1479 to offer identical choices of health plans to individuals 
and to small employers under Title 22, chapter 1479.
Sec. 2.  24-A MRSA §2792, sub-§5, as enacted by PL 2019, c. 653, Pt. B, §2, is 
amended to read:
5.  Preconditions for pooled market.  This section may not be implemented unless 
routine technical rules as defined in Title 5, chapter 375, subchapter 2‑A are adopted to 
implement this section and the Federal Government approves a state innovation waiver 
amendment that extends reinsurance under section 3953 to the pooled market established 
pursuant to this section based on projections by the superintendent that both average 
individual premium rates and average small group premium rates would be the same or 
lower than they would have been absent the provisions of this section and chapter 54-A.  If 
this section is not implemented, the superintendent shall conduct an analysis of alternative 
proposals to improve the stability and affordability of the small group market.
Sec. 3.  24-A MRSA §2793, as enacted by PL 2019, c. 653, Pt. B, §2, is amended to 
read:
§2793.  Clear choice designs
The superintendent shall develop clear choice designs for the individual and small 
group health insurance markets health plans in order to reduce consumer confusion and 
provide meaningful choices for consumers by promoting a level playing field on which 
carriers compete on the basis of price and quality.
1.  Clear choice design.  For the purposes of this section, "clear choice design" means 
a set of annual copayments, coinsurance and deductibles for all or a designated subset of 
the essential health benefits. An individual health plan subject to section 2736-C or small 
group a pooled market health plan subject to section 2792 must conform to one of the clear 
choice designs developed pursuant to this section unless an opt-out request is granted it is 
approved as an alternative plan under subsection 4.
2.  Development of clear choice designs.  The superintendent shall develop clear 
choice designs in consultation with working groups consisting of consumers, carriers, 
health policy experts and other interested persons. The superintendent shall adopt rules for 
clear choice designs, taking into consideration the ability of plans to conform to actuarial 
value ranges, consumer needs and promotion of benefits with high value and return on 
investment.  The superintendent shall develop at least one clear choice design for each tier 
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of health insurance plan designated as bronze, silver, gold and platinum in accordance with 
the federal Affordable Care Act. Rules adopted pursuant to this subsection are routine 
technical rules as defined in Title 5, chapter 375, subchapter 2‑A. Clear choice designs 
apply to all individual and small group health plans offered in this State with effective dates 
of coverage on or after January 1, 2022 and to all small group health plans offered through 
the pooled market under section 2792.
3.  Annual review.  The superintendent shall consider annually whether to revise, 
discontinue or add any clear choice designs for use by carriers in the following calendar 
year, including but not limited to considering whether deductible and copayment levels 
should be changed to reflect medical inflation and conform with actuarial value and annual 
maximum out-of-pocket limits.
4.  Alternative plan designs.  In addition to one or more health plans that include cost-
sharing parameters consistent with a clear choice design developed pursuant to this section, 
a carrier may offer up to 3 health plans plan designs that modify one or more specific cost-
sharing parameters in a clear choice design if the carrier submits an actuarial certification 
to the satisfaction of the superintendent that the alternative plan design offers significant 
consumer benefits and does not result in adverse selection.  An alternative plan design may 
be offered only in a service area where the carrier offers at least one clear choice design 
plan at the same tier.
Sec. 4.  24-A MRSA §3957, sub-§7, as enacted by PL 2011, c. 90, Pt. B, §8, is 
amended to read:
7.  Excess funds.  If assessments and other receipts by the association, board or 
administrator selected pursuant to section 3956 exceed the actual losses and administrative 
expenses of the association, the board shall hold the excess as at interest and shall use those 
excess funds to offset future losses or to reduce reinsurance premiums make adjustments 
to a reinsurance program operated pursuant to section 3953.  As used in this subsection, 
"future losses" includes reserves for claims incurred but not reported.
Sec. 5.  24-A MRSA §3958, sub-§1, as amended by PL 2019, c. 653, Pt. B, §18, is 
further amended to read:
1.  Reinsurance amount.  A member insurer offering an individual health plan under 
section 2736‑C must be reinsured by the association to the level of coverage provided in 
this subsection and is liable to the association for any applicable reinsurance premium at 
the rate established in accordance with subsection 2.  For calendar year 2022 2023 and 
subsequent calendar years, the association shall also reinsure member insurers for small 
group health plans issued under section 2808‑B, unless otherwise provided in rules adopted 
by the superintendent pursuant to section 2792, subsection 5.
A.  Beginning July 1, 2012, except as otherwise provided in paragraph A‑1, the 
association shall reimburse a member insurer for claims incurred with respect to a 
person designated for reinsurance by the member insurer pursuant to section 3959 after 
the insurer has incurred an initial level of claims for that person of $7,500 for covered 
benefits in a calendar year.  In addition, the insurer is responsible for 10% of the next 
$25,000 of claims paid during a calendar year.  The amount of reimbursement is 90% 
of the amount incurred between $7,500 and $32,500 and 100% of the amount incurred 
in excess of $32,500 for claims incurred in that calendar year with respect to that 
person.  For calendar year 2012, only claims incurred on or after July 1st are considered 
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in determining the member insurer's reimbursement.  With the approval of the 
superintendent, the association may annually adjust the initial level of claims and the 
maximum limit to be retained by the insurer to reflect changes in costs, utilization, 
available funding and any other factors affecting the sustainable operation of the 
association.
A-1.  In any plan year in which a pooled market is operating in accordance with section 
2792, the association shall operate a retrospective reinsurance program providing 
coverage to member insurers for all individual and small group health plans issued in 
this State in that plan year.  For plan years beginning in 2022, if the pooled market has 
not been implemented pursuant to section 2792, subsection 5, the association may 
operate a retrospective reinsurance program for individual health plans, subject to the 
approval of the superintendent.
(1)  The association shall reimburse member insurers based on the total eligible 
claims paid during a calendar year for a single individual in excess of the 
attachment point specified by the board. The board may establish multiple layers 
of coverage with different attachment points and different percentages of claims 
payments to be reimbursed by the association.
(2)  Eligible claims by all individuals enrolled in individual or small group health 
plans in this State may not be disqualified for reimbursement on the basis of health 
conditions, predesignation by the member insurer or any other differentiating 
factor.
(3)  The board shall annually review the attachment points and coinsurance 
percentages and make any adjustments that are necessary to ensure that the 
retrospective reinsurance program operates on an actuarially sound basis.
(4)  The board shall ensure that any surplus in the retrospective reinsurance 
program at the conclusion of a plan year is used to lower attachment points, 
increase coinsurance rates or both for that plan year, consistent with its 
responsibility to ensure that the program operates on an actuarially sound basis.
B.  A member insurer shall apply all managed care, utilization review, case 
management, preferred provider arrangements, claims processing and other methods 
of operation without regard to whether claims paid for coverage are reinsured under 
this subsection.  A member insurer shall report for each plan year the name of each 
high-priced item or service for which its payment exceeded the amount allowed for 
eligible claims and the name of the provider that received this payment.  The 
association shall annually compile and publish a list of all reported names.
SUMMARY
This bill changes the effective date of individual and small group health plans that must 
be offered in the State through a pooled market from January 1, 2022 to January 1, 2023. 
The bill requires the Superintendent of Insurance to develop clear choice designs for all 
individual health plans offered in the State with effective dates on or after January 1, 2022 
and for all pooled market health plans.  The bill clarifies that health insurance carriers may 
offer up to 3 health plan designs that modify one or more cost-sharing parameters of a clear 
choice design.  The bill modifies the permissible use of excess funds derived from 
assessments against insurers under the Maine Revised Statutes, Title 24-A, section 3957.  
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The bill delays the implementation of the requirement that the Maine Guaranteed Access 
Reinsurance Association reinsure certain insurers offering small group health plans in the 
State to calendar year 2023.