2023 -- H 5426 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO INSURANCE -- INDIVIDUAL HEALTH INSURANCE COVERAGE

     Introduced By: Representatives Speakman, Kislak, Donovan, Ajello, Morales, Carson,
Bennett, Alzate, McGaw, and McEntee

     Date Introduced: February 08, 2023

     Referred To: House Health & Human Services

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 27-18.5-3, 27-18.5-4, 27-18.5-5, 27-18.5-6 and 27-18.5-10 of the

General Laws in Chapter 27-18.5 entitled "Individual Health Insurance Coverage" are hereby

amended to read as follows:

     27-18.5-3. Guaranteed availability to certain individuals.

     (a) Notwithstanding any of the provisions of this title to the contrary Subject to subsections

(b) through (i) of this section, all health insurance carriers that offer health insurance coverage in

the individual market in this state shall provide for the guaranteed availability of coverage to an

eligible individual or an individual who has had health insurance coverage, including coverage in

the individual market, or coverage under a group health plan or coverage under 5 U.S.C. § 8901 et

seq. and had that coverage continuously for at least twelve (12) consecutive months and who

applies for coverage in the individual market no later than sixty-three (63) days following

termination of the coverage, desiring to enroll in individual health insurance coverage, and who is

not eligible for coverage under a group health plan, part A or part B or title XVIII of the Social

Security Act, 42 U.S.C. § 1395c et seq. or 42 U.S.C. § 1395j et seq., or any state plan under title

XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (or any successor program) and does not

have other health insurance coverage (provided, that eligibility for the other coverage shall not

disqualify an individual with twelve (12) months of consecutive coverage if that individual applies

for coverage in the individual market for the primary purpose of obtaining coverage for a specific

pre-existing condition, and the other available coverage excludes coverage for that pre-existing

condition) and any eligible applicant. For the purposes of this section, an "eligible applicant" means

any individual resident of this state. A carrier offering health insurance coverage in the individual

market shall offer to any eligible applicant in the state all health insurance coverage plans of that

carrier that are approved for sale in the individual market and shall accept any eligible applicant

that applies for coverage under those plans. A carrier may not:

     (1) Decline to offer the coverage to, or deny enrollment of, the individual; or

     (2) Impose any preexisting condition exclusion with respect to the coverage.

     (b)(1) All health insurance carriers that offer health insurance coverage in the individual

market in this state shall offer all policy forms of health insurance coverage to all eligible

applicants. Provided, a carrier may offer plans with reduced cost sharing for qualifying eligible

applicants, based on available federal funds including those described by 42 U.S.C. § 18071, or

based on a program established with state funds. Provided, the carrier may elect to limit the

coverage offered so long as it offers at least two (2) different policy forms of health insurance

coverage (policy forms which have different cost-sharing arrangements or different riders shall be

considered to be different policy forms) both of which:

     (i) Are designed for, made generally available to, and actively market to, and enroll both

eligible and other individuals by the carrier; and

     (ii) Meet the requirements of subparagraph (A) or (B) of this paragraph as elected by the

carrier:

     (A) If the carrier offers the policy forms with the largest, and next to the largest, premium

volume of all the policy forms offered by the carrier in this state; or

     (B) If the carrier offers a choice of two (2) policy forms with representative coverage,

consisting of a lower-level coverage policy form and a higher-level coverage policy form each of

which includes benefits substantially similar to other individual health insurance coverage offered

by the carrier in this state and each of which is covered under a method that provides for risk

adjustment, risk spreading, or financial subsidization.

     (2) For the purposes of this subsection, “lower-level coverage” means a policy form for

which the actuarial value of the benefits under the coverage is at least eighty-five percent (85%)

but not greater than one hundred percent (100%) of the policy form weighted average.

     (3) For the purposes of this subsection, “higher-level coverage” means a policy form for

which the actuarial value of the benefits under the coverage is at least fifteen percent (15%) greater

than the actuarial value of lower-level coverage offered by the carrier in this state, and the actuarial

value of the benefits under the coverage is at least one hundred percent (100%) but not greater than

one hundred twenty percent (120%) of the policy form weighted average.

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     (4) For the purposes of this subsection, “policy form weighted average” means the average

actuarial value of the benefits provided by all the health insurance coverage issued (as elected by

the carrier) either by that carrier or, if the data are available, by all carriers in this state in the

individual market during the previous year (not including coverage issued under this subsection),

weighted by enrollment for the different coverage. The actuarial value of benefits shall be

calculated based on a standardized population and a set of standardized utilization and cost factors.

     (5) The carrier elections under this subsection shall apply uniformly to all eligible

individuals in this state for that carrier. The election shall be effective for policies offered during a

period of not shorter than two (2) years.

     (c)(1) A carrier may deny health insurance coverage in the individual market to an eligible

individual applicant if the carrier has demonstrated to the director commissioner that:

     (i) It does not have the financial reserves necessary to underwrite additional coverage; and

     (ii) It is applying this subsection uniformly to all individuals in the individual market in

this state consistent with applicable state law and without regard to any health status-related factor

of the individuals and without regard to whether the individuals are eligible individuals.

     (2) A carrier upon denying individual health insurance coverage in this state in accordance

with this subsection may not offer that coverage in the individual market in this state for a period

of one hundred eighty (180) days after the date the coverage is denied or until the carrier has

demonstrated to the director commissioner that the carrier has sufficient financial reserves to

underwrite additional coverage, whichever is later.

     (d) Nothing in this section shall be construed to require that a carrier offering health

insurance coverage only in connection with group health plans or through one or more bona fide

associations, or both, offer health insurance coverage in the individual market.

     (e) A carrier offering health insurance coverage in connection with group health plans

under this title shall not be deemed to be a health insurance carrier offering individual health

insurance coverage solely because the carrier offers a conversion policy.

     (f) Except for any high risk pool rating rules to be established by the Office of the Health

Insurance Commissioner (OHIC) as described in this section, nothing in this section shall be

construed to create additional restrictions on the amount of premium rates that a carrier may charge

an individual for health insurance coverage provided in the individual market; or to prevent a health

insurance carrier offering health insurance coverage in the individual market from establishing

premium rates or modifying applicable copayments or deductibles in return for adherence to

programs of health promotion and disease prevention.

     (g) OHIC may pursue federal funding in support of the development of a high risk pool for

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the individual market, as defined in § 27-18.5-2, contingent upon a thorough assessment of any

financial obligation of the state related to the receipt of said federal funding being presented to, and

approved by, the general assembly by passage of concurrent general assembly resolution. The

components of the high risk pool program, including, but not limited to, rating rules, eligibility

requirements and administrative processes, shall be designed in accordance with § 2745 of the

Public Health Service Act (42 U.S.C. § 300gg-45) also known as the State High Risk Pool Funding

Extension Act of 2006 and defined in regulations promulgated by the office of the health insurance

commissioner on or before October 1, 2007.

     (h)(1) In the case of a health insurance carrier that offers health insurance coverage in the

individual market through a network plan, the carrier may limit the individuals who may be enrolled

under that coverage to those who live, reside, or work within the service areas for the network plan;

and within the service areas of the plan, deny coverage to individuals if the carrier has demonstrated

to the director that:

     (i) It will not have the capacity to deliver services adequately to additional individual

enrollees because of its obligations to existing group contract holders and enrollees and individual

enrollees; and

     (ii) It is applying this subsection uniformly to individuals without regard to any health

status-related factor of the individuals and without regard to whether the individuals are eligible

individuals.

     (2) Upon denying health insurance coverage in any service area in accordance with the

terms of this subsection, a carrier may not offer coverage in the individual market within the service

area for a period of one hundred eighty (180) days after the coverage is denied.

     (i) A carrier must allow an eligible applicant to enroll in coverage during:

     (A) An open enrollment period to be established by the commissioner and held annually

for a period of between thirty (30) and sixty (60) days;

     (B) Special enrollment periods as established in accordance with the version of 45 C.F.R.

§ 147.104 in effect on January 1, 2023; and

     (C) Any other open enrollment periods or special enrollment periods established by federal

or state law, rule or regulation.

     27-18.5-4. Continuation of coverage — Renewability.

     (a) A health insurance carrier that provides individual health insurance coverage to an

individual in this state shall renew or continue in force that coverage at the option of the individual.

     (b) A health insurance carrier may nonrenew non-renew or discontinue health insurance

coverage of an individual in the individual market based only on one or more of the following:

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     (1) The individual has failed to pay premiums or contributions in accordance with the terms

of the health insurance coverage, including terms relating to or the carrier has not received timely

premium payments;

     (2) The individual has performed an act or practice that constitutes fraud or made an

intentional misrepresentation of material fact under the terms of the coverage;

     (3) The carrier is ceasing to offer coverage in accordance with subsections (c) and (d) of

this section;

     (4) In the case of a carrier that offers health insurance coverage in the market through a

network plan, the individual no longer resides, lives, or works in the service area (or in an area for

which the carrier is authorized to do business) but only if the coverage is terminated uniformly

without regard to any health status-related factor of covered individuals; or

     (5) In the case of health insurance coverage that is made available in the individual market

only through one or more bona fide associations, the membership of the individual in the

association (on the basis of which the coverage is provided) ceases but only if the coverage is

terminated uniformly and without regard to any health status-related factor of covered individuals.

     (c) In any case in which a carrier decides to discontinue offering a particular type of health

insurance coverage offered in the individual market, coverage of that type may be discontinued

only if:

     (1) The carrier provides notice, to each covered individual provided coverage of this type

in the market, of the discontinuation at least ninety (90) days prior to the date of discontinuation of

the coverage;

     (2) The carrier offers to each individual in the individual market provided coverage of this

type, the opportunity to purchase any other individual health insurance coverage currently being

offered by the carrier for individuals in the market; and

     (3) In exercising this option to discontinue coverage of this type and in offering the option

of coverage under subdivision (2) of this subsection, the carrier acts uniformly without regard to

any health status-related factor of enrolled individuals or individuals who may become eligible for

the coverage.

     (d) In any case in which a carrier elects to discontinue offering all health insurance

coverage in the individual market in this state, health insurance coverage may be discontinued only

if:

     (1) The carrier provides notice to the director commissioner and to each individual of the

discontinuation at least one hundred eighty (180) days prior to the date of the expiration of the

coverage; and

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     (2) All health insurance issued or delivered in this state in the market is discontinued and

coverage under this health insurance coverage in the market is not renewed.

     (e) In the case of a discontinuation under subsection (d) of this section, the carrier may not

provide for the issuance of any health insurance coverage in the individual market in this state

during the five (5) year period beginning on the date the carrier filed its notice with the department

to withdraw from the individual health insurance market in this state. This five (5) year period may

be reduced to a minimum of three (3) years at the discretion of the health insurance commissioner,

based on his/her analysis of market conditions and other related factors.

     (f) The provisions of subsections (d) and (e) of this section do not apply if, at the time of

coverage renewal, a health insurance carrier modifies the health insurance coverage for a policy

form offered to individuals in the individual market so long as the modification is consistent with

this chapter and other applicable law and effective on a uniform basis among all individuals with

that policy form.

     (g) In applying this section in the case of health insurance coverage made available by a

carrier in the individual market to individuals only through one or more associations, a reference

to an “individual” includes a reference to the association (of which the individual is a member).

     27-18.5-5. Enforcement — Limitation on actions.

     The director commissioner has the power to enforce the provisions of this chapter in

accordance with § 42-14-16 and all other applicable laws.

     27-18.5-6. Rules and regulations.

     The director commissioner may promulgate rules and regulations necessary to effectuate

the purposes of this chapter.

     27-18.5-10. Prohibition on preexisting condition exclusions.

     (a) A health insurance policy, subscriber contract, or health plan offered, issued, issued for

delivery, or issued to cover a resident of this state by a health insurance company licensed pursuant

to this title and/or chapter: shall not limit or exclude coverage for any individual by imposing a

preexisting condition exclusion on that individual.

     (1) Shall not limit or exclude coverage for an individual under the age of nineteen (19) by

imposing a preexisting condition exclusion on that individual.

     (2) For plan or policy years beginning on or after January 1, 2014, shall not limit or exclude

coverage for any individual by imposing a preexisting condition exclusion on that individual.

     (b) As used in this section:, (1) “Preexisting “preexisting condition exclusion” means a

limitation or exclusion of benefits, including a denial of coverage, based on the fact that the

condition (whether physical or mental) was present before the effective date of coverage, or if the

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coverage is denied, the date of denial, under a health benefit plan whether or not any medical advice,

diagnosis, care or treatment was recommended or received before the effective date of coverage.

     (2) “Preexisting condition exclusion” means any limitation or exclusion of benefits,

including a denial of coverage, applicable to an individual as a result of information relating to an

individual’s health status before the individual’s effective date of coverage, or if the coverage is

denied, the date of denial, under the health benefit plan, such as a condition (whether physical or

mental) identified as a result of a pre-enrollment questionnaire or physical examination given to

the individual, or review of medical records relating to the pre-enrollment period.

     (c) This section shall not apply to grandfathered health plans providing individual health

insurance coverage.

     (d) This section shall not apply to insurance coverage providing benefits for: (1) Hospital

confinement indemnity; (2) Disability income; (3) Accident only; (4) Long-term care; (5) Medicare

supplement; (6) Limited benefit health; (7) Specified disease indemnity; (8) Sickness or bodily

injury or death by accident or both; and (9) Other limited benefit policies.

     SECTION 2. Chapter 27-18.5 of the General Laws entitled "Individual Health Insurance

Coverage" is hereby amended by adding thereto the following section:

     27-18.5-11. Essential health benefits -- Individual.

     (a) The following words and phrases as used in this section have the following meanings

consistent with federal law and regulations adopted thereunder, as long as they remain in effect. If

such authorities are determined by the commissioner to no longer be in effect, the laws and

regulations in effect as of the date immediately prior to their legislative repeal or their being

declared invalid or nullified by final federal judicial or executive branch action, as identified by the

commissioner shall govern, unless a different meaning is required by the context:

     (1) "Essential health benefits" means the following general categories, and the services

covered within those categories as defined pursuant to the processes described in 42 U.S.C. § 18022

and implementing regulations and guidance:

     (i) Ambulatory patient services;

     (ii) Emergency services;

     (iii) Hospitalization;

     (iv) Maternity and newborn care;

     (v) Mental health and substance use disorder services, including behavioral health

treatment;

     (vi) Prescription drugs;

     (vii) Rehabilitative and habilitative services and devices;

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     (viii) Laboratory services;

     (ix) Preventive services, wellness services, and chronic disease management; and

     (x) Pediatric services, including oral and vision care.

     (2) "Preventive services" means those services described in 42 U.S.C. § 300gg-13 and

implementing regulations and guidance.

     (b) If any provision of the federal Patient Protection and Affordable Care Act and

implementing regulations relating to coverage for essential health benefits and/or for preventive

services without cost sharing are determined by the commissioner to have been repealed or to have

been declared invalid or nullified by the final judgment of a federal court applicable to the state or

by executive or administrative action, which shall be deemed to include an action of the federal

executive or judicial branch that nullifies the effectiveness of the obligation to provide coverage

without cost sharing for a meaningful range of preventive services substantially similar to those

preventive services required under 42 U.S.C. § 300gg-13 as of January 1, 2023, then the following

shall apply:

     (1) A health insurance policy, subscriber contract, or health plan offered, issued, renewed,

issued for delivery, or issued to cover a resident of this state, by a health insurance company

licensed pursuant to this title and/or chapter shall provide coverage of at least the essential health

benefits categories set forth in this section, and shall further provide coverage of preventive services

from in-network providers without applying any copayments, deductibles, coinsurance, or other

cost sharing, as described in 42 U.S.C. § 300gg-13 and related regulations and guidance, including

existing exemptions, in effect as of the date immediately prior to their repeal, revocation, or

nullification, as set forth above.

     (2) To the extent that the U.S. Preventive Services Taskforce revises its recommendations

with respect to grade "A" or "B" preventive services, or other expert advisory panel designated in

42 U.S.C. § 300gg-13 similarly provides new or revised recommendations, the office of the health

insurance commissioner shall have the authority to issue guidance clarifying the services that shall

qualify as preventive services under this section, consistent with said recommendations and in

accordance with the processes as had been described by the version of 42 U.S.C. § 300gg-13(b)

and related regulations and guidance in effect as of the date immediately prior to their repeal,

revocation, or nullification, as set forth above.

     (c) If a health insurance policy, subscriber contract, or health plan offered, issued, renewed,

issued for delivery, or issued to cover a resident of this state, by a health insurance company

licensed pursuant to this title and/or chapter, was not subject to the requirements described in

subsection (b) of this section prior to their repeal, revocation, or nullification, then such policy,

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contract, or plan shall remain so exempt and the provisions of this section shall not apply.

     SECTION 3. Chapter 27-18.6 of the General Laws entitled "Large Group Health Insurance

Coverage" is hereby amended by adding thereto the following section:

     27-18.6-3.2. Preventative services.

     (a) As used in this section, "preventive services" means those services described in 42

U.S.C. § 300gg-13 and implementing regulations and guidance.

     (b) If any provision of the federal Patient Protection and Affordable Care Act and

implementing regulations relating to preventive services without cost sharing are determined by

the commissioner to have been repealed or to have been declared invalid or nullified by the final

judgment of a federal court applicable to the state or by executive or administrative action, which

shall be deemed to include an action of the executive or judicial branch that nullifies the

effectiveness of the obligation to provide coverage without cost sharing for a meaningful range of

preventive services substantially similar to those in effect as of January 1, 2023, then the following

shall apply:

     (1) A health insurance policy, subscriber contract, or health plan offered, issued, renewed,

issued for delivery, or issued to cover a resident of this state, by a health insurance company

licensed pursuant to this title and/or chapter, shall provide coverage of preventive services from in-

network providers without applying any copayments, deductibles, coinsurance, or other cost

sharing, as described in 42 U.S.C. § 300gg-13 and related regulations and guidance, including

existing exemptions, in effect as of the date immediately prior to their repeal, revocation, or

nullification, as set forth above.

     (2) To the extent that the U.S. Preventive Services Taskforce revises its recommendations

with respect to grade "A" or "B" preventive services or other expert advisory panel described in 42

U.S.C. § 300gg-13, similarly provides new or revised recommendations the office of the health

insurance commissioner shall have the authority to issue guidance clarifying the services that shall

qualify as preventive services under this section, consistent with said recommendations, and in

accordance with the process as had been described by the version of 42 U.S.C. § 300gg-13(b) and

related regulations and guidance in effect as of the date immediately prior to their repeal,

revocation, or nullification, as set forth above.

     (c) If a health insurance policy, subscriber contract, or health plan offered, issued, renewed,

issued for delivery, or issued to cover a resident of this state, by a health insurance company

licensed pursuant to this title and/or chapter, was not subject to the requirements described in

subsection (b) of this section prior to their repeal, revocation, or nullification, then such policy,

contract, or plan shall remain so exempt and the provisions of this section shall not apply.

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     SECTION 4. Section 27-50-11 of the General Laws in Chapter 27-50 entitled "Small

Employer Health Insurance Availability Act" is hereby amended to read as follows:

     27-50-11. Administrative procedures.

     The director shall issue commissioner may promulgate rules and regulations necessary to

effectuate the purposes of this chapter in accordance with chapter 35 of this title for the

implementation and administration of the Small Employer Health Insurance Availability Act.

     SECTION 5. Chapter 27-50 of the General Laws entitled "Small Employer Health

Insurance Availability Act" is hereby amended by adding thereto the following section:

     27-50-19. Essential health benefits.

     (a) The following words and phrases as used in this section have the following meanings

consistent with federal law and regulations adopted thereunder, as long as they remain in effect. If

such authorities are determined by the commissioner to no longer be in effect, the laws and

regulations in effect as of the date immediately prior to their legislative repeal or their being

declared invalid or nullified by federal judicial or executive branch action, as identified by the

commissioner shall govern, unless a different meaning is required by the context:

     (1) "Essential health benefits" means the following general categories, and the services

covered within those categories as defined pursuant to the processes described in 42 U.S.C. § 18022

and implementing regulations and guidance:

     (i) Ambulatory patient services;

     (ii) Emergency services;

     (iii) Hospitalization;

     (iv) Maternity and newborn care;

     (v) Mental health and substance use disorder services, including behavioral health

treatment;

     (vi) Prescription drugs;

     (vii) Rehabilitative and habilitative services and devices;

     (viii) Laboratory services;

     (ix) Preventive services, wellness services, and chronic disease management; and

     (x) Pediatric services, including oral and vision care.

     (2) "Preventative services" means those services described in 42 U.S.C. § 300gg-13 and

implementing regulations and guidance.

     (b) If any provision of the federal Patient Protection and Affordable Care Act and

implementing regulations relating to coverage for essential health benefits and/or for preventive

services without cost sharing are determined by the commissioner to have been repealed or to have

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been declared invalid or nullified by the final judgment of a federal judicial branch applicable to

the state or by executive or administrative action, which shall be deemed to include an action of the

federal executive or judicial branch that nullifies the effectiveness of the obligation to provide

coverage without cost sharing for a meaningful range of preventive services substantially similar

to those preventive services required under 42 U.S.C. § 300gg-13 as of January 1, 2023, then the

following shall apply:

     (1) A health insurance policy, subscriber contract, or health plan offered, issued, renewed,

issued for delivery, or issued to cover a resident of this state, by a health insurance company

licensed pursuant to this title and/or chapter shall provide coverage of at least the essential health

benefits categories set forth in this section, and shall further provide coverage of preventive services

from in-network providers without applying any copayments, deductibles, coinsurance, or other

cost sharing, as described in 42 U.S.C. § 300gg-13 and related regulations and guidance, including

existing exemptions, in effect as of the date immediately prior to their repeal, revocation, or

nullification, as set forth above.

     (2) To the extent that the U.S. Preventive Services Taskforce revises its recommendations

with respect to grade "A" or "B" preventive services, or other expert advisory panel designated in

42 U.S.C. § 300gg-13 similarly provides new or revised recommendations, the office of health

insurance commissioner shall have the authority to issue guidance clarifying the services that shall

qualify as preventive services under this section, consistent with said recommendations and in

accordance with the processes as had been described by the version of 42 U.S.C. § 300gg-13(b)

and related regulations and guidance in effect as of the date immediately prior to their repeal,

revocation, or nullification, as set forth above.

     (c) If a health insurance policy, subscriber contract, or health plan offered, issued, renewed,

issued for delivery, or issued to cover a resident of this state, by a health insurance company

licensed pursuant to this title and/or chapter, was not subject to the requirements described in

subsection (b) of this section prior to their repeal, revocation, or nullification, then such policy,

contract, or plan shall remain so exempt and the provisions of this section shall not apply.

     SECTION 6. Chapter 42-14.5 of the General Laws entitled "The Rhode Island Health Care

Reform Act of 2004 — Health Insurance Oversight" is hereby amended by adding thereto the

following section:

     42-14.5-3.1. Reporting changes in federal law.

     If any provision of the federal Patient Protection and Affordable Care Act and/or its

implementing regulations relating to coverage for essential health benefits or preventive services

are determined by the commissioner to have been repealed or to have been declared invalid or

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nullified by the final judgment of a federal court applicable to the state or by executive or

administrative action, which shall be deemed to include an action of the executive or judicial branch

that nullifies the effectiveness of the provision, such that the commissioner intends to take action

pursuant to the authority conferred on him or her pursuant to the authority granted by §§ 27-18.5-

11, 27-18.6-3.2, or 27-50-18, the commissioner shall report to the general assembly as soon as

possible to describe the impact of the change and to make recommendations regarding consumer

protections, consumer choices, and stabilization and affordability of the Rhode Island insurance

market.

     SECTION 7. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO INSURANCE -- INDIVIDUAL HEALTH INSURANCE COVERAGE

***

     This act would provide guaranteed availability of coverage to any eligible individual

resident of this state. Coverage could not be limited or excluded by imposing a preexisting

condition exclusion. It would also require individual health insurers, large group health insurers

and small employer health insurers to provide coverage for ten (10) categories of essential health

benefits listed in the act.

     This act would take effect upon passage.

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