STATE OF NEW YORK ________________________________________________________________________ 11341 IN ASSEMBLY September 19, 2018 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Rozic) -- read once and referred to the Committee on Insurance AN ACT to amend the public authorities law and the public officers law, in relation to the establishment of the New York Health Benefit Exchange The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "New York 2 Health Benefit Exchange Act". 3 § 2. The public authorities law is amended by adding a new article 4 10-E to read as follows: 5 ARTICLE 10-E 6 NEW YORK HEALTH BENEFIT EXCHANGE 7 Section 3980. Statement of policy and purposes. 8 3981. Definitions. 9 3982. Establishment of the New York health benefit exchange. 10 3983. General powers of the exchange. 11 3984. Functions of the exchange. 12 3985. Special functions of the exchange related to health plan 13 certification and qualified health plan oversight. 14 3986. Regional advisory committees. 15 3987. Funding of the exchange. 16 3988. Tax exemption and tax contract by the state. 17 3989. Officers and employees. 18 3990. Limitation of liability; indemnification. 19 3991. Construction. 20 § 3980. Statement of policy and purposes. The purpose of this article 21 is to establish an American health benefit exchange in New York. The 22 exchange shall facilitate enrollment in health coverage, the purchase 23 and sale of qualified health plans in the individual market in this 24 state, and enroll individuals in health coverage for which they are 25 eligible in accordance with federal law. The exchange also shall incor- 26 porate a small business health options program ("SHOP") to assist quali- 27 fied employers in facilitating the enrollment of their employees in EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10285-02-7A. 11341 2 1 qualified health plans offered in the group market. It is the intent of 2 the legislature, through the establishment of the exchange, to promote 3 quality and affordable health coverage and care, reduce the number of 4 uninsured persons, provide a transparent marketplace, educate consumers 5 and assist individuals with access to coverage, premium assistance tax 6 credits and cost-sharing reductions. 7 § 3981. Definitions. For purposes of this article, the following defi- 8 nitions shall apply: 9 1. "Board" or "board of directors" means the board of directors of the 10 exchange. 11 2. "Regional advisory committees" means the New York health benefit 12 exchange regional advisory committees established pursuant to this arti- 13 cle. 14 3. "Commissioner" means the commissioner of health. 15 4. "Exchange" means the New York health benefit exchange established 16 pursuant to this article. 17 5. "Health plan" means a policy, contract or certificate, offered or 18 issued by an insurer to provide, deliver, arrange for, pay for or reim- 19 burse any of the costs of health care services. Health plan shall not 20 include the following: 21 (a) accident insurance or disability income insurance, or any combina- 22 tion thereof; 23 (b) coverage issued as a supplement to liability insurance; 24 (c) liability insurance, including general liability insurance and 25 automobile liability insurance; 26 (d) workers' compensation or similar insurance; 27 (e) automobile no-fault insurance; 28 (f) credit insurance; 29 (g) other similar insurance coverage, as specified in federal regu- 30 lations, under which benefits for medical care are secondary or inci- 31 dental to other insurance benefits; 32 (h) limited scope dental or vision benefits, benefits for long-term 33 care insurance, nursing home insurance, home care insurance, or any 34 combination thereof, or such other similar, limited benefits health 35 insurance as specified in federal regulations, if the benefits are 36 provided under a separate policy, certificate or contract of insurance 37 or are otherwise not an integral part of the plan; 38 (i) coverage only for a specified disease or illness, hospital indem- 39 nity, or other fixed indemnity coverage; 40 (j) Medicare supplemental insurance as defined in section 1882(g)(1) 41 of the federal social security act, coverage supplemental to the cover- 42 age provided under chapter 55 of title 10 of the United States code, or 43 similar supplemental coverage provided under a group health plan if it 44 is offered as a separate policy, certificate or contract of insurance; 45 or 46 (k) the medical indemnity fund established pursuant to title four of 47 article twenty-nine-D of the public health law. 48 6. "Insurer" means an insurance company subject to article thirty-two 49 or forty-three of the insurance law, or a health maintenance organiza- 50 tion certified pursuant to article forty-four of the public health law 51 that contracts or offers to contract to provide, deliver, arrange, pay 52 or reimburse any of the costs of health care services. 53 7. "Qualified dental plan" means a limited scope dental plan that is 54 issued by an insurer and certified in accordance with section thirty- 55 nine hundred eighty-five of this article.A. 11341 3 1 8. "Qualified employer" means a small employer that elects to make its 2 full-time employees eligible for one or more qualified health plans 3 through the exchange. 4 9. "Qualified health plan" means a health plan that is issued by an 5 insurer and certified in accordance with section thirty-nine hundred 6 eighty-five of this article. 7 10. "Qualified individual" means an individual, including a minor, 8 who: 9 (a) is seeking to enroll in a qualified health plan offered to indi- 10 viduals through the exchange; 11 (b) resides in this state; 12 (c) at the time of enrollment, is not incarcerated, other than incar- 13 ceration pending the disposition of charges; and 14 (d) is, and is reasonably expected to be, for the entire period for 15 which enrollment is sought, a citizen or national of the United States 16 or an alien lawfully present in the United States. 17 11. "SHOP" means the small business health options program designed to 18 assist qualified employers in this state in facilitating the enrollment 19 of their employees in qualified health plans offered in the group market 20 in this state. 21 12. "Small employer" means, for plan years prior to January first, two 22 thousand sixteen, an employer that employed an average of at least one 23 but not more than fifty employees on business days during the preceding 24 calendar year. For plan years beginning on and after January first, two 25 thousand sixteen, small employer means an employer that employed an 26 average of at least one but not more than one hundred employees on busi- 27 ness days during the preceding calendar year. For purposes of the defi- 28 nition of small employer: 29 (a) all persons treated as a single employer under subsection (b), 30 (c), (m) or (o) of section 414 of the Internal Revenue Code of 1986 31 shall be treated as a single employer; 32 (b) an employer and any predecessor employer shall be treated as a 33 single employer; 34 (c) all employees shall be counted, including part-time employees and 35 employees who are not eligible for coverage through the employer; 36 (d) if an employer was not in existence throughout the preceding 37 calendar year, then the determination of whether that employer is a 38 small employer shall be based upon the average number of employees that 39 the employer reasonably expects to employ on business days in the 40 current calendar year; 41 (e) if a qualified employer that makes enrollment in qualified health 42 plans available to its employees through the exchange ceases to be a 43 small employer by reason of an increase in the number of its employees, 44 then the employer shall continue to be treated as a qualified employer 45 for purposes of this article for the period beginning with the increase 46 and ending with the first day on which the employer does not make such 47 enrollment available to its employees; and 48 (f) notwithstanding paragraphs (a) through (e) of this subdivision, an 49 employer also shall be considered a small employer if the coverage it 50 offers would be considered small group coverage under the insurance law 51 and regulations promulgated thereunder. 52 13. "Small group market" means the health insurance market under which 53 individuals receive health insurance coverage on behalf of themselves 54 and their dependents through a group health plan maintained by a small 55 employer. 56 14. "Superintendent" means the superintendent of financial services.A. 11341 4 1 § 3982. Establishment of the New York health benefit exchange. 1. 2 There is hereby created a public benefit corporation to be known as the 3 New York health benefit exchange. Such corporation shall be a body 4 corporate and politic. 5 2. The purpose of the exchange is to facilitate the purchase and sale 6 of qualified health plans, assist qualified employers in facilitating 7 the enrollment of their employees in qualified health plans through the 8 small business health options program, enroll individuals in health 9 coverage for which they are eligible in accordance with federal law and 10 carry out other functions set forth in this article. 11 3. (a) The exchange shall be governed by a board of directors consist- 12 ing of nine voting directors, including the commissioner and the super- 13 intendent, who shall serve as ex officio directors. 14 (b) Seven directors shall be appointed by the governor, two of whom 15 shall be appointed upon the recommendation of the temporary president of 16 the senate and two of whom shall be appointed upon the recommendation of 17 the speaker of the assembly. Each person appointed as a director pursu- 18 ant to this paragraph shall have expertise in one or more of the follow- 19 ing areas: 20 (i) Individual health care coverage; 21 (ii) Small employer health care coverage; 22 (iii) Health benefits administration; 23 (iv) Health care finance; 24 (v) Public or private health care delivery systems; and 25 (vi) Purchasing health plan coverage. 26 (c) Recommendations and appointments shall take into consideration the 27 expertise of other directors recommended and appointed pursuant to this 28 subdivision, so that the board composition reflects a diversity of expe- 29 rience. 30 (d) Recommendations by the temporary president of the senate and the 31 speaker of the assembly shall be made within sixty days of the effective 32 date of this article, within sixty days of the occurrence of a vacancy 33 or within sixty days prior to the expiration of a term. 34 4. The governor shall appoint a chair of the board from among the 35 directors who shall be subject to the advice and consent of the senate. 36 Any director appointed by the governor as chair of the board may serve 37 as acting chair until such time as a vote for confirmation is taken by 38 the senate. No director appointed as chair shall serve as chair, or 39 continue to serve as acting chair, if the senate has voted not to 40 confirm such director as chair. 41 5. (a) The terms of the directors, other than the ex officio direc- 42 tors, shall be three years, provided, however, that the initial terms of 43 one of the directors appointed upon recommendation of the temporary 44 president of the senate, one of the directors appointed upon recommenda- 45 tion of the speaker of the assembly, and one of the directors appointed 46 by the governor without recommendation shall be for two years. 47 (b) Vacancies occurring otherwise than by expiration of term of office 48 shall be filled for the unexpired term in the manner provided for 49 original appointment. 50 6. The directors shall not receive any compensation for their services 51 as directors. 52 7. (a) Each director shall have the responsibility and duty to meet 53 the requirements of this article and all applicable state and federal 54 laws and regulations to serve the public interest of the individuals and 55 small businesses seeking health care coverage through the exchange,A. 11341 5 1 consistent with section twenty-eight hundred twenty-four of this chap- 2 ter. 3 (b) Each director shall be a state officer or employee for the 4 purposes of sections seventy-three and seventy-four of the public offi- 5 cers law. 6 (c) No director may be employed or otherwise retained by the exchange. 7 8. (a) The board may create such committees as the board deems neces- 8 sary. The first meeting of the board shall be held within thirty days 9 after all directors are initially appointed. At the first meeting of 10 the board, and at the first meeting in each subsequent year, the board 11 shall elect from among its members a secretary and a treasurer. The 12 board also shall elect such other officers as it shall deem necessary. 13 The officers so elected shall have such powers and duties as are 14 assigned by the by-laws and this chapter. 15 (b) The board, and any committee thereof, may hold meetings by elec- 16 tronic means consistent with article seven of the public officers law. 17 § 3983. General powers of the exchange. The exchange shall have the 18 following powers to be used in furtherance of its corporate purposes: 19 1. to sue and be sued and to participate in actions and proceedings, 20 whether judicial, administrative, arbitrative or otherwise; 21 2. to have a corporate seal, and to alter such seal at pleasure, and 22 to use it by causing it or a facsimile to be affixed or impressed or 23 reproduced in any other manner; 24 3. to purchase, receive, take by grant, gift, devise, bequest or 25 otherwise, lease, or otherwise acquire, own, hold, improve, employ, use 26 and otherwise deal in and with, real or personal property, or any inter- 27 est therein, wherever situated; 28 4. to sell, convey, lease, exchange, transfer or otherwise dispose of, 29 or mortgage or pledge, or create a security interest in, all or any of 30 its property, or any interest therein, wherever situated; 31 5. to make contracts, give guarantees and incur liabilities, and 32 borrow money; provided, however, that the exchange shall not issue 33 bonds; 34 6. to invest and reinvest its funds, and take and hold real and 35 personal property as security for the payment of funds so loaned or 36 invested; 37 7. to make and alter by-laws for its organization and management; 38 8. to make and alter rules and regulations as necessary to implement 39 the provisions of this article, subject to the provisions of the state 40 administrative procedure act; 41 9. to hire employees, consistent with section thirty-nine hundred 42 eighty-nine of this article; 43 10. to designate the depositories of its money; 44 11. to establish its fiscal year; 45 12. to insure or otherwise provide for the insurance of the exchange's 46 property or operations and against such other risks as the exchange may 47 deem advisable; 48 13. to receive and spend money for any of its corporate purposes in 49 accordance with this article; and 50 14. to apply for, accept the award of, and spend any available grant 51 money. 52 § 3984. Functions of the exchange. The exchange shall: 53 1. (a) make available qualified health plans to qualified individuals 54 and qualified employers beginning on or before January first, two thou- 55 sand eighteen, provided that coverage under such qualified plans shallA. 11341 6 1 not become effective prior to such date and shall not make available any 2 health plan that is not a qualified health plan; 3 (b) make available qualified dental plans to qualified individuals and 4 qualified employers beginning on or before January first, two thousand 5 eighteen, provided that coverage under such qualified dental plans shall 6 not become effective prior to such date, either separately or in 7 conjunction with a qualified health plan, if such plan provides pedia- 8 tric dental benefits; 9 2. assign a rating to each qualified health plan offered through the 10 exchange, and determine each qualified health plan's level of coverage; 11 3. utilize a standardized format for presenting health benefit options 12 in the exchange, including the use of the uniform outline of coverage 13 established under section 2715 of the federal public health service act; 14 4. provide for enrollment periods pursuant to the insurance law, 15 whichever is in the best interest of qualified individuals and qualified 16 employers; 17 5. implement procedures for the certification, recertification and 18 decertification of health plans as qualified health plans, consistent 19 with guidelines developed by the superintendent; 20 6. require qualified health plans to offer those benefits determined 21 by the superintendent to be essential health benefits and such addi- 22 tional benefits as may be required pursuant to the insurance law; 23 7. ensure that insurers offering health plans through the exchange do 24 not charge an individual a fee or penalty for termination of coverage; 25 8. provide for the operation of a toll-free telephone hotline to 26 respond to requests for assistance; 27 9. maintain an internet website through which enrollees and prospec- 28 tive enrollees of qualified health plans may obtain standardized compar- 29 ative information on such plans and public health programs; 30 10. establish and make available by electronic means a calculator to 31 determine the actual cost of coverage after the application of any 32 premium tax credit under section 36B of the Internal Revenue Code of 33 1986 and any cost-sharing reduction; 34 11. establish a program under which the exchange awards grants to 35 entities to serve as navigators; 36 12. inform individuals of eligibility requirements for the medicaid 37 program under title XIX of the social security act, the children's 38 health insurance program (CHIP) under title XXI of the social security 39 act or any applicable state or local public health insurance program and 40 if, through screening of the application by the exchange, the exchange 41 determines that such individuals are eligible for any such program, 42 enroll such individuals in such program; 43 13. grant a certification attesting that, for purposes of the indi- 44 vidual responsibility penalty under section 5000A of the Internal Reven- 45 ue Code of 1986, an individual is exempt from the individual responsi- 46 bility requirement or from the penalty imposed by that section because: 47 (a) there is no affordable qualified health plan available through the 48 exchange or the individual's employer, covering the individual; or 49 (b) the individual meets the requirements for any other such exemption 50 from the individual responsibility requirement or penalty; 51 14. transmit to the comptroller: 52 (a) a list of the individuals to whom the exchange granted a certif- 53 ication under subdivision thirteen of this section, including the name 54 and taxpayer identification number of each individual; 55 (b) the name and taxpayer identification number of each individual who 56 was an employee of an employer who was determined to be eligible for theA. 11341 7 1 premium tax credit under section 36B of the Internal Revenue Code of 2 1986 because: 3 (i) the employer did not provide minimum essential coverage as deter- 4 mined by the superintendent; or 5 (ii) the employer provided the minimum essential coverage as deter- 6 mined by the superintendent, but it was determined under section 7 36B(c)(2)(C) of the Internal Revenue Code of 1986 to either be unafford- 8 able to the employee or to not provide the required minimum actuarial 9 value; and 10 (c) the name and taxpayer identification number of: 11 (i) each individual who notifies the exchange that he or she has 12 changed employers; and 13 (ii) each individual who ceases coverage under a qualified health plan 14 during a plan year and the effective date of that cessation; 15 15. provide to each employer the name of each employee of the employer 16 described in paragraph (b) of subdivision fourteen of this section who 17 ceases coverage under a qualified health plan during a plan year and the 18 effective date of the cessation; 19 16. operate a small business health options program ("SHOP") through 20 which qualified employers access coverage for their employees, and may: 21 (a) permit qualified employers to specify a level of coverage so their 22 employees may enroll in any qualified health plan offered through the 23 SHOP at the specified level of coverage or provide a specific amount or 24 other payment formulated to be used as part of an employee choice plan; 25 and 26 (b) provide premium aggregation and other related services to minimize 27 administrative burdens for qualified employers; 28 17. enter into agreements as necessary with: (a) federal and state 29 agencies and other state exchanges to carry out its responsibilities 30 under this article, provided such agreements include adequate 31 protections with respect to the confidentiality of any information to be 32 shared and comply with all state and federal laws and regulations; and 33 (b) local departments of social services to coordinate enrollment in 34 other social services programs, as appropriate, provided such agreements 35 include adequate protections with respect to the confidentiality of any 36 information to be shared and comply with all state and federal laws and 37 regulations; 38 18. perform duties required by the superintendent or the secretary of 39 the United States department of the treasury related to determining 40 eligibility for premium tax credits, reduced cost-sharing, or individual 41 responsibility requirement exemptions; 42 19. meet financial integrity requirements of this chapter, including: 43 (a) keeping an accurate accounting of all activities, receipts, and 44 expenditures and annually submitting to the superintendent a report 45 concerning such accountings, with a copy of such report provided to the 46 governor, the temporary president of the senate and the speaker of the 47 assembly; and 48 (b) fully cooperating with any investigation conducted by the super- 49 intendent pursuant to his or her authority and allowing the superinten- 50 dent to: 51 (i) investigate the affairs of the exchange; 52 (ii) examine the properties and records of the exchange; and 53 (iii) require periodic reports in relation to the activities undertak- 54 en by the exchange; 55 20. (a) consult with the regional advisory committees established 56 pursuant to section thirty-nine hundred eighty-six of this article; andA. 11341 8 1 (b) consult with stakeholders relevant to carrying out the activities 2 required under this article, including but not limited to: 3 (i) health care consumers who are enrollees in health plans; 4 (ii) individuals and entities with experience in facilitating enroll- 5 ment in health plans; 6 (iii) representatives of small businesses and self-employed individ- 7 uals; 8 (iv) state medicaid offices, including local departments of social 9 services; 10 (v) advocates for enrolling hard to reach populations; 11 (vi) health care providers; and 12 (vii) insurers; 13 21. submit information provided by exchange applicants for verifica- 14 tion; 15 22. establish rules and regulations, pursuant to subdivision eight of 16 section thirty-nine hundred eighty-three of this article, that do not 17 conflict with or prevent the application of regulations promulgated by 18 the superintendent; and 19 23. determine eligibility, provide notices, and provide opportunities 20 for appeal and redetermination. 21 § 3985. Special functions of the exchange related to health plan 22 certification and qualified health plan oversight. 1. Health plans 23 certified by the exchange shall meet the following requirements: 24 (a) the insurer offering the health plan: 25 (i) is licensed or certified by the superintendent or commissioner; 26 (ii) offers at least one qualified health plan in each of the silver 27 and gold levels; 28 (iii) has filed with and received approval from the superintendent of 29 its premium rates and policy or contract forms pursuant to the insurance 30 law and the public health law; 31 (iv) does not charge any cancellation fees or penalties in violation 32 of subdivision seven of section thirty-nine hundred eighty-four of this 33 article; and 34 (v) complies with the regulations developed by the superintendent and 35 such other requirements as the exchange may establish; 36 (b) the health plan: (i) provides the essential health benefits pack- 37 age and includes such additional benefits as may be required pursuant to 38 the insurance law, except that the health plan shall not be required to 39 provide essential benefits that duplicate the minimum benefits of quali- 40 fied dental plans if: 41 (A) the exchange has determined that at least one qualified dental 42 plan is available to supplement the health plan's coverage; and 43 (B) the insurer makes prominent disclosure at the time it offers the 44 health plan, in a form approved by the exchange, that the plan does not 45 provide the full range of essential pediatric benefits, and that quali- 46 fied dental plans providing those benefits and other dental benefits not 47 covered by the plan are offered through the exchange; 48 (ii) provides at least a bronze level of coverage, unless the plan is 49 certified as a qualified catastrophic plan, and shall only be offered to 50 individuals eligible for catastrophic coverage; 51 (iii) has cost-sharing requirements, including deductibles, which do 52 not exceed the limits established and any requirements of the exchange; 53 (iv) complies with regulations promulgated by the superintendent, 54 which include minimum standards in the areas of marketing practices, 55 network adequacy, essential community providers in underserved areas, 56 accreditation, quality improvement, uniform enrollment forms andA. 11341 9 1 descriptions of coverage and information on quality measures for health 2 benefit plan performance; 3 (v) complies with the insurance law and the public health law require- 4 ments applicable to health insurance issued in this state and any regu- 5 lations promulgated pursuant thereto that do not conflict with or 6 prevent the application of federal requirements; and 7 (c) the exchange determines that making the health plan available 8 through the exchange is in the interest of qualified individuals and 9 qualified employers in this state. 10 2. The exchange shall not exclude a health plan: 11 (a) on the basis that the health plan is a fee-for-service plan; 12 (b) through the imposition of premium price controls by the exchange; 13 or 14 (c) on the basis that the health plan provides treatments necessary to 15 prevent patients' deaths in circumstances the exchange determines are 16 inappropriate or too costly. 17 3. The exchange shall require each insurer certified or seeking 18 certification of a health plan as a qualified health plan to: 19 (a) submit a justification for any premium increase to the exchange 20 prior to implementation of such increase. The insurer shall prominently 21 post the information on its internet website; provided, however, that if 22 information submitted to the superintendent as a justification for a 23 premium rate adjustment pursuant to the insurance law, or information 24 posted to an insurer's internet website, otherwise meets federal 25 requirements, then submission of a copy of the same justification to the 26 exchange or use of the same posting shall be deemed sufficient to meet 27 the requirements of this section. The exchange shall take this informa- 28 tion, and the information and the recommendations provided to the 29 exchange by the superintendent relating to patterns or practices of 30 excessive or unjustified premium increases, into consideration when 31 determining whether to allow the insurer to make health plans available 32 through the exchange. Such rate increases shall be subject to the prior 33 approval of the superintendent pursuant to the insurance law; 34 (b)(i) make available to the public and submit to the exchange and the 35 superintendent, accurate and timely disclosure of: 36 (A) claims payment policies and practices; 37 (B) periodic financial disclosures; 38 (C) data on enrollment and disenrollment; 39 (D) data on the number of claims that are denied; 40 (E) data on rating practices; 41 (F) information on cost-sharing and payments with respect to any out- 42 of-network coverage; 43 (G) information on enrollee and participant rights; and 44 (H) other information as determined appropriate by the superintendent; 45 (ii) the information shall be provided in plain language and in guid- 46 ance jointly issued thereunder by the superintendent and the federal 47 secretary of labor; and 48 (c) provide to individuals, in a timely manner upon the request of the 49 individual, the amount of cost-sharing, including deductibles, copay- 50 ments, and coinsurance, under the individual's health plan or coverage 51 that the individual would be responsible for paying with respect to the 52 furnishing of a specific item or service by a participating provider. At 53 a minimum, this information shall be made available to the individual 54 through an internet website and through other means for individuals 55 without access to the internet.A. 11341 10 1 4. (a) The provisions of this article that apply to qualified health 2 plans also shall apply to the extent relevant to qualified dental plans 3 except as modified in accordance with the provisions of paragraphs (b) 4 and (c) of this subdivision or otherwise required by the exchange. 5 (b) The qualified dental plan shall be limited to dental and oral 6 health benefits, without substantially duplicating the benefits typical- 7 ly offered by health benefit plans without dental coverage, and shall 8 include, at a minimum, the essential pediatric dental benefits 9 prescribed by the superintendent and such other dental benefits as the 10 exchange or the superintendent may specify in regulations. 11 (c) Insurers may jointly offer a comprehensive plan through the 12 exchange in which an insurer provides the dental benefits through a 13 qualified dental plan and an insurer provides the other benefits through 14 a qualified health plan, provided that the plans are priced separately 15 and also are made available for purchase separately at the same price. 16 § 3986. Regional advisory committees. 1. There are hereby created the 17 New York health benefit exchange regional advisory committees ("advisory 18 committees"). One regional advisory committee shall be established with- 19 in each of five regions, to be known as the "New York City region," 20 "metropolitan suburban region," "northern region," "central region" and 21 "western region." The board shall determine the counties that make up 22 such regions. 23 2. Each regional advisory committee shall be comprised of five members 24 appointed by the governor, one of whom shall be appointed upon the 25 recommendation of the temporary president of the senate and one of whom 26 shall be appointed upon the recommendation of the speaker of the assem- 27 bly. 28 3. Terms shall be three years. Members shall serve until their 29 successors are appointed. Members may serve up to two consecutive terms. 30 4. Vacancies shall be filled in the same manner as original appoint- 31 ments, and successors shall serve for the remainder of the unexpired 32 term to which they are appointed. 33 5. Recommendations by the temporary president of the senate and the 34 speaker of the assembly shall be made within sixty days of the effective 35 date of this article or the occurrence of a vacancy, or within sixty 36 days prior to the expiration of a term. 37 6. The members of each regional advisory committee shall include: 38 (a) representatives from the following categories, but not more than 39 two from any single category: 40 (i) health plan consumer advocates; 41 (ii) small business consumer representatives; 42 (iii) health care provider representatives; 43 (iv) representatives of the health insurance industry; 44 (b) representatives from the following categories, but not more than 45 one from either category: 46 (i) licensed insurance producers; and 47 (ii) representatives of labor organizations. 48 7. The board shall select the chair of each regional advisory commit- 49 tee from among the members of such committee. The board shall adopt 50 rules for the governance of the regional advisory committees and each 51 regional advisory committee shall meet at least once each quarter and at 52 such other times as determined by the board to be necessary. 53 8. Members of the regional advisory committees shall serve without 54 compensation. 55 9. The regional advisory committees shall make findings and recommen- 56 dations regarding regional variations in the operation of the exchange,A. 11341 11 1 which shall be submitted to the board of directors, posted on the 2 website of the exchange, and considered by the board in a reasonably 3 timely fashion. Such findings and recommendations shall be made on an 4 annual basis, on a date determined by the board, and at such other times 5 as the board or any regional advisory committee deems appropriate. 6 § 3987. Funding of the exchange. 1. The exchange shall be financially 7 self-sufficient by January first, two thousand nineteen. 8 2. The exchange shall conduct or cause to be conducted a study of, and 9 shall report its findings and recommendations upon, the options to 10 generate funding for the ongoing operation of the exchange. 11 3. The exchange shall publish on its internet website the fees and 12 any other payments required by the exchange, and the administrative 13 costs of the exchange, to educate consumers on such costs and the amount 14 of monies lost to waste, fraud and abuse. 15 4. The exchange shall not utilize any funds intended for the adminis- 16 trative and operational expenses of the exchange for staff retreats, 17 promotional giveaways, excessive executive compensation, or promotion of 18 federal or state legislative and regulatory modifications. 19 5. The moneys of the exchange shall, except as otherwise provided in 20 this section, be deposited in a general account called the New York 21 health benefit exchange account and such other accounts as the exchange 22 may deem necessary, pursuant to resolution of the board, for the trans- 23 action of its business and shall be paid out as authorized by the chair 24 of the board or by such other person or persons as the chair may desig- 25 nate. 26 6. No funds of the exchange shall be transferred to the general fund 27 or any special revenue fund or shall be used for any purpose other than 28 the purposes set forth in this article. No funds shall be transferred 29 from the general fund or any special revenue fund to the exchange with- 30 out an appropriation. 31 7. The accounts of the exchange shall be subject to supervision of the 32 comptroller and such accounts shall include receipts, expenditures, 33 contracts and other matters which pertain to the fiscal soundness of the 34 exchange. 35 8. Notwithstanding any law to the contrary, and in accordance with 36 section four of the state finance law, upon request of the director of 37 the budget, in consultation with the commissioner, the superintendent 38 and the chair of the board, the comptroller is hereby authorized and 39 directed to suballocate or transfer special revenue federal funds appro- 40 priated to the department of health for planning and implementing vari- 41 ous healthcare and insurance reform initiatives authorized by federal 42 legislation to the New York state health benefit exchange. Moneys subal- 43 located or transferred pursuant to this section shall be paid out of the 44 fund upon audit and warrant of the state comptroller on vouchers certi- 45 fied or approved by the exchange. 46 § 3988. Tax exemption and tax contract by the state. 1. It is hereby 47 determined that the creation of the exchange and the fulfillment of its 48 corporate purposes is in all respects for the benefit of the people of 49 this state and is a public purpose. Accordingly, the exchange shall be 50 regarded as performing an essential governmental function in the exer- 51 cise of the powers conferred upon it by this article, and the exchange 52 shall not be required to pay any fees, taxes, special ad valorem levies 53 or assessments of any kind, whether state or local, including but not 54 limited to fees, taxes, special ad valorem levies or assessments on real 55 property, franchise taxes, sales taxes, transfer taxes, mortgage taxes 56 or other taxes, upon or with respect to any property owned by it orA. 11341 12 1 under its jurisdiction, control or supervision, or upon the uses there- 2 of, or upon or with respect to its activities or operations in further- 3 ance of the powers conferred upon it by this article, or upon or with 4 respect to any fares, tolls, rentals, rates, charges, fees, revenues or 5 other income received by the exchange. 6 2. The exchange may pay, or may enter into agreements with any county 7 or municipality to pay, a sum or sums annually or otherwise or to 8 provide other considerations with respect to real property owned by the 9 exchange located within such county or municipality. 10 § 3989. Officers and employees. 1. The board shall have the power to 11 appoint employees to serve as senior managerial staff of the exchange as 12 necessary, who shall be designated to be in the exempt class of civil 13 service. The board shall also have the power to fix the salaries of such 14 employees. 15 2. Any newly hired employees who are not designated to be in the 16 exempt class of civil service pursuant to subdivision one of this 17 section and who are not subject to the transfer provisions set forth in 18 subdivisions four, five and six of this section shall be considered for 19 purposes of article fourteen of the civil service law to be public 20 employees in the civil service of the state, and shall be assigned to 21 the appropriate collective bargaining unit by the exchange in the same 22 manner and consistent with those employees described in subdivision six 23 of this section. 24 3. Any public officer or employee of a state department, agency or 25 commission may be transferred to the exchange without examination and 26 without loss of any civil service status or rights to a comparable 27 office, position or employment with the exchange; provided, however, no 28 such transfer may be made without the consent of the head of the depart- 29 ment, agency or commission. Transfers shall be made pursuant to subdi- 30 vision two of section seventy of the civil service law. 31 4. The salary or compensation of any such officer or employee, after 32 such transfer, shall be paid by the exchange. 33 5. Any officer or employee transferred to the exchange pursuant to 34 this section, who are members of or benefit under any existing pension 35 or retirement fund or system, shall continue to have all rights, privi- 36 leges, obligations and status with respect to such fund or system as are 37 now prescribed by law, but during the period of their employment by the 38 exchange, all contributions to such funds or systems to be paid by the 39 employer on account of such officers or employees shall be paid by the 40 exchange. 41 6. A transferred employee shall remain in the same collective bargain- 42 ing unit as was the case prior to his or her transfer; successor employ- 43 ees to the positions held by such transferred employees shall, consist- 44 ent with the provisions of article fourteen of the civil service law, be 45 included in the same unit as their predecessors. Employees serving in 46 positions in newly created titles shall be assigned to the same collec- 47 tive bargaining unit as they would have been assigned to were such 48 titles created prior to the establishment of the exchange. Nothing 49 contained in this article shall be construed (a) to diminish the rights 50 of employees pursuant to a collective bargaining agreement or (b) to 51 affect existing law with respect to an application to the public employ- 52 ment relations board seeking a designation by the board that certain 53 persons are managerial or confidential. 54 § 3990. Limitation of liability; indemnification. The provisions of 55 sections seventeen and nineteen of the public officers law shall be 56 applicable to exchange employees, as such term is defined in sectionsA. 11341 13 1 seventeen and nineteen of the public officers law; provided, however, 2 that nothing contained within this section shall be deemed to permit the 3 exchange to extend the provisions of sections seventeen and nineteen of 4 the public officers law upon any independent contractor. 5 § 3991. Construction. Nothing in this article, and no action taken by 6 the exchange pursuant hereto, shall be construed to: 7 1. preempt or supersede the authority of the superintendent or the 8 commissioner; or 9 2. exempt insurers, insurance producers or qualified health plans from 10 the public health law or the insurance law and regulations promulgated 11 thereunder. 12 § 3. Subdivision 1 of section 17 of the public officers law is amended 13 by adding a new paragraph (z) to read as follows: 14 (z) For purposes of this section, the term "employee" shall include 15 directors, officers and employees of the New York health benefit 16 exchange established pursuant to article ten-E of the public authorities 17 law. 18 § 4. Subdivision 1 of section 19 of the public officers law is amended 19 by adding a new paragraph (k) to read as follows: 20 (k) For purposes of this section, the term "employee" shall include 21 directors, officers and employees of the New York health benefit 22 exchange established pursuant to article ten-E of the public authorities 23 law. 24 § 5. If any provision or application of this act shall be held to be 25 invalid, or to violate or be inconsistent with any applicable federal 26 law or regulation, that shall not affect other provisions or applica- 27 tions of this act which can be given effect without that provision or 28 application; and to that end, the provisions and applications of this 29 act are severable. 30 § 6. The superintendent of the department of financial services is 31 authorized to promulgate rules and regulations, and may promulgate emer- 32 gency regulations, necessary for the implementation of the provisions of 33 this act on or before its effective date. 34 § 7. This act shall take effect upon the occurrence of the earlier of: 35 (a) the repeal of the Patient Protection and Affordable Care Act, 42 36 U.S.C. § 18001 et seq. (2010); or 37 (b) the rescinding of Executive Order {Cuomo} No. 42 {9 NYCRR 8.42}, 38 Establishing the New York Health Benefit Exchange; 39 provided that the governor of the state of New York shall notify the 40 legislative bill drafting commission upon the occurrence of the rescind- 41 ing of Executive Order {Cuomo} No. 42 {9 NYCRR 8.42}, Establishing the 42 New York Health Benefit Exchange in order that the commission may main- 43 tain an accurate and timely effective data base of the official text of 44 the laws of the state of New York in furtherance of effecting the 45 provisions of section 44 of the legislative law and section 70-b of the 46 public officers law.