KRS 304.17A-220: Pre -existing condition exclusion in group coverage -- Definitions for

section.

(1) All group health plans and insurers offering group health insurance coverage in the

Commonwealth shall comply with the provisions of this section.

(2) Subject to subsection (8) of this section, a group health plan, and a health insurance

insurer offering group health insurance coverage, may, with respect to a participant

or beneficiary, impose a pre-existing condition exclusion only if:

(a) The exclusion relates to a condition, whether physical or mental, regardless of

the cause of the condition, for which medical advice, diagnosis, care, or

treatment was recommended or received within the six (6) month period

ending on the enrollment date. For purposes of this paragraph:

1. Medical advice, diagnosis, care, or treatment is taken into account only

if it is recommended by, or received from, an individual licensed or

similarly authorized to provide such services under state law and

operating within the scope of practice authorized by state law; and

2. The six (6) month period ending on the enrollment date begins on the

six (6) month anniversary date preceding the enrollment date;

(b) The exclusion extends for a period of not more than twelve (12) months, or

eighteen (18) months in the case of a late enrollee, after the enrollment date;

(c) 1. The period of any pre-existing condition exclusion that would otherwise

apply to an individual is reduced by the number of days of creditable

coverage the individual has as of the enro llment date, as counted under

subsection (3) of this section; and

2. Except for ineligible individuals who apply for coverage in the

individual market, the period of any pre -existing condition exclusion

that would otherwise apply to an individual may be re duced by the

number of days of creditable coverage the individual has as of the

effective date of coverage under the policy; and

(d) A written notice of the pre -existing condition exclusion is provided to

participants under the plan, and the insurer cannot impose a pre -existing

condition exclusion with respect to a participant or a dependent of the

participant until such notice is provided.

(3) In reducing the pre-existing condition exclusion period that applies to an individual,

the amount of creditable co verage is determined by counting all the days on which

the individual has one (1) or more types of creditable coverage. For purposes of

counting creditable coverage:

(a) If on a particular day the individual has creditable coverage from more than

one (1) s ource, all the creditable coverage on that day is counted as one (1)

day;

(b) Any days in a waiting period for coverage are not creditable coverage;

(c) Days of creditable coverage that occur before a significant break in coverage

are not required to be counted; and

(d) Days in a waiting period and days in an affiliation period are not taken into

account in determining whether a significant break in coverage has occurred.

(4) An insurer may determine the amount of creditable coverage in another manner than

established in subsection (3) of this section that is at least as favorable to the

individual as the method established in subsection (3) of this section.

(5) If an insurer receives creditable coverage information, the insurer shall make a

determination regarding the amount of the individual's creditable coverage and the

length of any pre -existing exclusion period that remains. A written notice of the

length of the pre-existing condition exclusion period that remains after offsetting for

prior creditable coverage shall be issued by the insurer. An insurer may not impose

any limit on the amount of time that an individual has to present a certificate or

evidence of creditable coverage.

(6) For purposes of this section:

(a) "Pre-existing condition e xclusion" means, with respect to coverage, a

limitation or exclusion of benefits relating to a condition based on the fact that

the condition was present before the effective date of coverage, whether or not

any medical advice, diagnosis, care, or treatmen t was recommended or

received before that day. A pre -existing condition exclusion includes any

exclusion applicable to an individual as a result of information relating to an

individual's health status before the individual's effective date of coverage

under a health benefit plan;

(b) "Enrollment date" means, with respect to an individual covered under a group

health plan or health insurance coverage, the first day of coverage or, if there

is a waiting period, the first day of the waiting period. If an indi vidual

receiving benefits under a group health plan changes benefit packages, or if

the employer changes its group health insurer, the individual's enrollment date

does not change;

(c) "First day of coverage" means, in the case of an individual covered for

benefits under a group health plan, the first day of coverage under the plan

and, in the case of an individual covered by health insurance coverage in the

individual market, the first day of coverage under the policy or contract;

(d) "Late enrollee" means an individual whose enrollment in a plan is a late

enrollment;

(e) "Late enrollment" means enrollment of an individual under a group health

plan other than:

1. On the earliest date on which coverage can become effective for the

individual under the terms of the plan; or

2. Through special enrollment;

(f) "Significant break in coverage" means a period of sixty-three (63) consecutive

days during each of which an individual does not have any creditable

coverage; and

(g) "Waiting period" means the period that must pass before coverage for an

employee or dependent who is otherwise eligible to enroll under the terms of a

group health plan can become effective. If an employee or dependent enrolls

as a late enrollee or special enrollee, any period before such late or special

enrollment is not a waiting period. If an individual seeks coverage in the

individual market, a waiting period begins on the date the individual submits a

substantially complete application for coverage and ends on:

1. If the application results in coverage, the date coverage begins; or

2. If the application does not result in coverage, the date on which the

application is denied by the insurer or the date on which the offer of

coverage lapses.

(7) (a) 1. Except as otherwise provided under subsec tion (3) of this section, for

purposes of applying subsection (2)(c) of this section, a group health

plan, and a health insurance insurer offering group health insurance

coverage, shall count a period of creditable coverage without regard to

the specific benefits covered during the period.

2. A group health plan, or a health insurance insurer offering group health

insurance coverage, may elect to apply subsection (2)(c) of this section

based on coverage of benefits within each of several classes or

categories of benefits specified in federal regulations. This election shall

be made on a uniform basis for all participants and beneficiaries. Under

this election, a group health plan or insurer shall count a period of

creditable coverage with respect to any clas s or category of benefits if

any level of benefits is covered within this class or category.

3. In the case of an election with respect to a group health plan under

subparagraph 2. of this paragraph, whether or not health insurance

coverage is provided in connection with the plan, the plan shall:

a. Prominently state in any disclosure statements concerning the plan,

and state to each enrollee at the time of enrollment under the plan,

that the plan has made this election; and

b. Include in these statements a description of the effect of this

election.

(b) Periods of creditable coverage with respect to an individual shall be

established through presentation of certifications described in subsection (9)

of this section or in such other manner as may be specifie d in administrative

regulations.

(8) (a) Subject to paragraph (e) of this subsection, a group health plan, and a health

insurance insurer offering group health insurance coverage, may not impose

any pre-existing condition exclusion on a child who, within t hirty (30) days

after birth, is covered under any creditable coverage. If a child is enrolled in a

group health plan or other creditable coverage within thirty (30) days after

birth and subsequently enrolls in another group health plan without a

significant break in coverage, the other group health plan may not impose any

pre-existing condition exclusion on the child.

(b) Subject to paragraph (e) of this subsection, a group health plan, and a health

insurance insurer offering group health insuranc e coverage, may not impose

any pre-existing condition exclusion on a child who is adopted or placed for

adoption before attaining eighteen (18) years of age and who, within thirty

(30) days after the adoption or placement for adoption, is covered under any

creditable coverage. If a child is enrolled in a group health plan or other

creditable coverage within thirty (30) days after adoption or placement for

adoption and subsequently enrolls in another group health plan without a

significant break in coverage, the other group health plan may not impose any

pre-existing condition exclusion on the child. This shall not apply to coverage

before the date of the adoption or placement for adoption.

(c) A group health plan may not impose any pre -existing condition exc lusion

relating to pregnancy.

(d) A group health plan may not impose a pre -existing condition exclusion

relating to a condition based solely on genetic information. If an individual is

diagnosed with a condition, even if the condition relates to genetic

information, the insurer may impose a pre -existing condition exclusion with

respect to the condition, subject to other requirements of this section.

(e) Paragraphs (a) and (b) of this subsection shall no longer apply to an individual

after the end of the fir st sixty-three (63) day period during all of which the

individual was not covered under any creditable coverage.

(9) (a) 1. A group health plan, and a health insurance insurer offering group health

insurance coverage, shall provide a certificate of credita ble coverage as

described in subparagraph 2. of this subsection. A certificate of

creditable coverage shall be provided, without charge, for participants or

dependents who are or were covered under a group health plan upon the

occurrence of any of the following events:

a. At the time an individual ceases to be covered under a health

benefit plan or otherwise becomes eligible under a COBRA

continuation provision;

b. In the case of an individual becoming covered under a COBRA

continuation provision, at the ti me the individual ceases to be

covered under the COBRA continuation provision; and

c. On request on behalf of an individual made not later than twenty -

four (24) months after the date of cessation of the coverage

described in subdivision a. or b. of this su bparagraph, whichever is

later.

The certificate of creditable coverage as described under subdivision a.

of this subparagraph may be provided, to the extent practicable, at a time

consistent with notices required under any applicable COBRA

continuation provision.

2. The certification described in this subparagraph is a written certification

of:

a. The period of creditable coverage of the individual under the

health benefit plan and the coverage, if any, under the COBRA

continuation provision; and

b. The wa iting period, if any, and affiliation period, if applicable,

imposed with respect to the individual for any coverage under the

plan.

3. To the extent that medical care under a group health plan consists of

group health insurance coverage, the plan is deemed to have satisfied the

certification requirement under this paragraph if the health insurance

insurer offering the coverage provides for the certification in accordance

with this paragraph.

(b) In the case of an election described in subsection (7)(a)2. o f this section by a

group health plan or health insurance insurer, if the plan or insurer enrolls an

individual for coverage under the plan and the individual provides a

certification of coverage of the individual under paragraph (a) of this

subsection:

1. Upon request of that plan or insurer, the entity that issued the

certification provided by the individual shall promptly disclose to the

requesting plan or insurer information on coverage of classes and

categories of health benefits available under the en tity's plan or

coverage; and

2. The entity may charge the requesting plan or insurer for the reasonable

cost of disclosing this information.

(10) (a) A group health plan, and a health insurance insurer offering group health

insurance coverage in connection with a group health plan, shall permit an

employee who is eligible but not enrolled for coverage under the terms of the

plan, or a dependent of that employee if the dependent is eligible but not

enrolled for coverage under these terms, to enroll for coverage under the terms

of the plan if each of the following conditions is met:

1. The employee or dependent was covered under a group health plan or

had health insurance coverage at the time coverage was previously

offered to the employee or dependent;

2. The employee stated in writing at that time that coverage under a group

health plan or health insurance coverage was the reason for declining

enrollment, but only if the plan sponsor or insurer, if applicable, required

that statement at that time and provided the employee with notice of the

requirement, and the consequences of the requirement, at that time;

3. The employee's or dependent's coverage described in subparagraph 1. of

this paragraph:

a. Was under a COBRA continuation provision and the coverage

under that provision was exhausted; or

b. Was not under such a provision and either the coverage was

terminated as a result of loss of eligibility for the coverage,

including as a result of legal separation, divorce, cessation of

dependent status, such as obta ining the maximum age to be

eligible as a dependent child, death of the employee, termination of

employment, reduction in the number of hours of employment,

employer contributions toward the coverage were terminated, a

situation in which an individual incu rs a claim that would meet or

exceed a lifetime limit on all benefits, or a situation in which a

plan no longer offers any benefits to the class of similarly situated

individuals that includes the individual; or

c. Was offered through a health maintenance organization or other

arrangement in the group market that does not provide benefits to

individuals who no longer reside, live, or work in a service area

and, loss of coverage in the group market occurred because an

individual no longer resides, lives, or works in the service area,

whether or not within the choice of the individual, and no other

benefit package is available to the individual; and

4. An insurer shall allow an employee and dependent a period of at least

thirty (30) days after an event described in this paragraph has occurred to

request enrollment for the employee or the employee's dependent.

Coverage shall begin no later than the first day of the first calendar

month beginning after the date the insurer receives the request for

special enrollment.

(b) A dependent of a current employee, including the employee's spouse, and the

employee each are eligible for enrollment in the group health plan subject to

plan eligibility rules conditioning depen dent enrollment on enrollment of the

employee if the requirements of paragraph (a) of this subsection are satisfied.

(c) 1. If:

a. A group health plan makes coverage available with respect to a

dependent of an individual;

b. The individual is a participant under the plan, or has met any

waiting period applicable to becoming a participant under the plan

and is eligible to be enrolled under the plan but for a failure to

enroll during a previous enrollment period; and

c. A person becomes such a dependent of th e individual through

marriage, birth, or adoption or placement for adoption;

the group health plan shall provide for a dependent special enrollment

period described in subparagraph 2. of this paragraph during which the

person or, if not otherwise enrolled , the individual, may be enrolled

under the plan as a dependent of the individual, and in the case of the

birth or adoption of a child, the spouse of the individual may be enrolled

as a dependent of the individual if the spouse is otherwise eligible for

coverage.

2. A dependent special enrollment period under this subparagraph shall be

a period of at least thirty (30) days and shall begin on the later of:

a. The date dependent coverage is made available; or

b. The date of the marriage, birth, or adoption or placement for

adoption, as the case may be, described in subparagraph 1.c. of this

paragraph.

3. If an individual seeks to enroll a dependent during the first thirty (30)

days of the dependent special enrollment period, the coverage of the

dependent shall become effective:

a. In the case of marriage, not later than the first day of the first

month beginning after the date the completed request for

enrollment is received;

b. In the case of a dependent's birth, as of the date of the birth; or

c. In the case of a dependent's adoption or placement for adoption,

the date of the adoption or placement for adoption.

(d) At or before the time an employee is initially offered the opportunity to enroll

in a group health plan, the employer shall provide the employee wi th a notice

of special enrollment rights.

(11) (a) In the case of a group health plan that offers medical care through health

insurance coverage offered by a health maintenance organization, the plan

may provide for an affiliation period with respect to co verage through the

organization only if:

1. No pre-existing condition exclusion is imposed with respect to coverage

through the organization;

2. The period is applied uniformly without regard to any health status -

related factors; and

3. The period does not exceed two (2) months, or three (3) months in the

case of a late enrollee.

(b) 1. For purposes of this section, the term "affiliation period" means a period

which, under the terms of the health insurance coverage offered by the

health maintenance organiza tion, must expire before the health

insurance coverage becomes effective. The organization is not required

to provide health care services or benefits during this period and no

premium shall be charged to the participant or beneficiary for any

coverage during the period.

2. This period shall begin on the enrollment date.

3. An affiliation period under a plan shall run concurrently with any

waiting period under the plan.

(c) A health maintenance organization described in paragraph (a) of this

subsection may use alternative methods other than those described in that

paragraph to address adverse selection as approved by the commissioner.