I.
STATEMENT OF ORGANIZATION AND OPERATIONS
A.
Operations.
The Arkansas Health Insurance Marketplace is a nonprofit legal
entity that is a political subdivision, instrumentality, and body politic of
the State of Arkansas created by Act 1500 of 2013, Ark. Code§
23-61-801 et
seq. The Marketplace is exempt from the laws governing state agencies,
including without limitation the Arkansas Procurement Law, Ark. Code§
19-11-201 et
seq.; the Uniform Classification and Compensation Act, Ark. Code§
21-5-201 et
seq.; and the Arkansas Administrative Procedure Act, Ark. Code §
25-15-201 et
seq. The Marketplace is subject to the Freedom of Information Act of 1967, Ark.
Code§
25-19-101 et
seq.
The General Assembly has delegated to the Board of Directors of
the Arkansas Health Insurance Marketplace the authority to plan and administer
the Marketplace; enter into contracts with eligible entities to assist with the
planning, implementation, and operation of the Marketplace; hire an executive
director and interim staff; enter into information sharing agreements with
federal and state agencies and other state marketplaces to carry out its
responsibilities; provide claims and other plan and enrollment data to the
Department of Human Services and the Insurance Commissioner when requested;
apply for state, federal, or private funding on or after July I, 2015;
coordinate with the Insurance Commissioner to apply for state, federal, or
private funds before July I, 2015; enter into a memorandum of understanding
with the Insurance Commissioner concerning the use of state, federal, or
private funds received by the Insurance Commissioner that may be used by the
Marketplace; and pertom l any duties identified under state or federal law,
including without limitation the obligations stated in Ark. Code §§
23-61-803
through
23-61-806.
The Marketplace staff acts as the administrator and operating
entity of the Board. The staff may act as spokesperson for the Marketplace,
receive correspondence and correspond on behalf of the Marketplace, provide
legal and other research to the Marketplace, investigate allegations of
violations of laws under the Marketplace's jurisdiction, and perform such other
functions as the Board deems appropriate.
Unless otherwise provided by these rules or by state or federal
law, these rules of practice and procedure shall govern all proceedings before
the Board and shall be applicable to the adoption, amendment, or repeal of a
policy, procedure, or rule of the Marketplace filed or initiated after the
effective date of these rules. The adoption, amendment, or repeal of a policy,
procedure, or rule shall comply with Ark. Code §
23-61-803.
B.
Board Organization.
1. The Board shall consist of eleven (11)
members.
2. The members shall be
appointed as follows:
a. Three (3) members by
the Governor of the State of Arkansas;
b. Three (3) members by the Speaker of the
Arkansas House of Representatives; and
c. Three (3) members by the President Pro
Tempore of the Arkansas Senate.
3. The following public officials shall serve
as ex officio non-voting members:
a. The
Insurance Commissioner or his or her designee; and
b. The Director of the Department of Human
Services or his or her designee.
4. The Governor shall appoint one (I) member
who is a representative of insurance agents or brokers licensed to sell health
insurance in Arkansas and two (2) members who are consumer
representatives.
5. The President
Pro Tempore shall appoint one (1) member who is a representative of a health
insurer and one (1) member who is a representative of small
employers.
6. The Speaker of the
House shall appoint one (1) member who is a representative of a health insurer
and one (1) member who is licensed by a health-related profession in
Arkansas.
7. The appointing
authorities shall ensure that a majority of the voting members of the Board
have relevant experience in:
a. Health
benefits administration;
b.
Healthcare finance;
c. Health plan
purchasing;
d. Healthcare delivery
system administration; or
e. Public
health or health policy issues related to the small group and individual
markets and the uninsured.
8. Of the initial appointees to the Board by
the Governor, the President Pro Tempore of the Senate, and the Speaker of the
House of Representatives, the appointing authority shall designate one (1)
appointee to serve a term of four (4) years; one (1) appointee to serve a term
of six (6) years; and one (1) appointee to serve a term of eight (8) years. All
succeeding appointees to the Board shall be appointed for a term of six (6)
years.
9. A member may resign at
any time by delivering written notice to the Board. A resignation is effective
when it is delivered to the Board, unless the notice specifies a later
effective date.
10. A member
subsequently appointed to the Board under subsection two (2) of this section
shall serve a term of six (6) years.
C.
Removal.
The Board, by resolution, may petition the appropriate circuit
court for the removal of a member of the Board under Ark. Code§
4-27-809.
D.
Staff Organization.
1. Executive Director
a. The Board shall employ an Executive
Director who shall serve at the will and pleasure of the Board.
b. The Executive Director shall employ a
staff to assist in the administration of the Marketplace.
c. The Executive Director shall be
responsible to the full Board and shall not be answerable to an individual
member. However, the Executive Director shall ensure that the Chair of the
Board is advised of the progress and conduct of the employees and operation of
the Marketplace's office.
2. Interim Staff
The Board may employ necessary staff on an interim basis until an
Executive Director is hired.
II.
INFORMATION FOR PUBLIC
GUIDANCE
1. The Marketplace shall make
available a list of persons holding certain responsibilities for handling
Freedom of Information Act requests, responding to operation questions,
addressing complaints, and handling its procedures concerning the adoption,
amendment, or repeal of a rule, policy, or procedure of the Marketplace. The
names, mailing addresses, telephone numbers, and electronic mail addresses can
be obtained from the Marketplace's office or website.
2. The Marketplace shall maintain and make
the following available on its website and from the Marketplace's office:
a. Official forms;
b. Written statements of a rule, policy, or
procedure;
c. Written
interpretative memoranda of a rule, p o I i c y, or procedure, if applicable;
and
d. Information and documents
required under the Freedom of Information Act, Ark. Code§
25-19-101 et
seq.
3. The Marketplace
shall file with the Arkansas Health Insurance Marketplace Legislative Oversight
Committee, the Secretary of State, the Arkansas State Library, and the Bureau
of Legislative Research a copy of each rule, policy, or procedure adopted by it
and a statement of financial impact for the rule, policy, or
procedure.
III.
GENERAL ORGANIZATION
A.
Officers.
1. The Board shall select a
Chair, Vice-Chair, Secretary/Treasurer, and such other officers as a majority
of the Board choose. The Board shall elect at its first meeting following July
1 of each year a Chair, Vice-Chair, and Secretary/Treasurer. An officer of the
Board may not succeed himself or herself. For officers elected on or after July
I, 2014, and subject to the affirmation of the Board:
a. A person serving as Vice-Chair shall
succeed to the office of Chair on the next following July 1; and
b. A person serving as Secretary/Treasurer
shall succeed to the office of Vice-Chair on the next following July
1.
2. The Chair shall be
a member of the Board and shall:
a. Preside at
the meetings of the Board with the authority to vote;
b. Call meetings and special meetings as
required; and
c. Perform such other
duties as may be prescribed by law or by action of the Board.
3. The Vice-Chair shall be a
member of the Board and shall perform the duties and have the powers of the
Chair during the absence or disability of the Chair.
4. The Secretary/Treasurer shall be a member
of the Board and shall attest the official actions of the Board.
B.
Standard of
Conduct.
1. A member of the Board shall
discharge his or her duties:
a. In good
faith;
b. With the care an
ordinarily prudent person in a like position would exercise under similar
circumstances; and
c. In a manner
the member reasonably believes to be in the best interests of the
Marketplace.
2. A member
of the Board acting in good faith may rely on information provided to him or
her in accordance with Ark. Code §
4-33-830.
C.
Conflicts of
Interest.
Members of the Board and the Marketplace's staff shall maintain
constant vigilance against conflicts of interest and against the appearance of
conflicts of interest in accordance with Ark. Code §
4-33-831.
D.
Liability.
The Board and its employees shall not be liable for the
obligations of the Marketplace.
E.
Indemnification.
The Board and its employees shall be indemnified under Ark. Code
§§
4-33-850 -
4-33-857. This
provision does not waive any other immunity provided under applicable law,
including but not limited to Ark. Code §
21-9-301
et seq.
F.
Legal
Representation.
The Board shall provide for legal representation for members or
employees of the Board.
G.
Meetings.
1. The business of the
Board shall be conducted in public meetings pursuant to the Freedom of
Information Act, Ark. Code§
25 -1 9-101 et seq. and guided by
Robert's Rules of Order Newly Revised. Regular meetings will be held at least
quarterly.
2. Special meetings will
be held at the call of the Chair or by written request
signed by five (5) Board members. A special meeting that does not
concern an emergency may be called on two (2) business days notice. A special
meeting concerning an emergency may be called on the notice required under the
Freedom of Information Act, Ark. Code §
25-19-101 et
seq. The notice shall specify the place, date, and time of the special meeting
and provide a concise statement of the business to be conducted at the special
meeting.
3. A majority of the
voting membership of the Board, whether present in the meeting room, via
telephone, teleconference, or similar technology, constitutes a quorum for the
transaction of business. An affirmative vote of a majority of a quorum present
shall be necessary to transact business.
4. The Chair shall prepare a proposed agenda
for each regular meeting. The proposed agenda shall be distributed to the Board
and made available to the public in advance
of the meeting. Any member of the Board may add items to the
agenda by notifying the Chair before the scheduled meeting date and time. An
item may be added to the agenda during the meeting upon the majority vote of
the members present at the meeting.
5. At the last regular meeting of the Board
in a fiscal year the Board shall determine the
dates of its regular meetings in the next fiscal
year.
H.
Committees.
The Board may create standing and ad hoc committees. The Board
may appoint members to a committee by a majority vote of a quorum of members
present. A quorum for the transaction of committee business is a majority of
the number of voting members of the committee.
I.
Compensation.
1. Subject to review by the Arkansas Health
Insurance Marketplace Legislative
Oversight Committee, the Board may authorize by a majority vote
of the total membership of the Board cast during its first regularly scheduled
meeting of each calendar year the:
a.
Payment to its members of a stipend per day not to exceed one hundred dollars
($100) for each meeting attended or for any day while performing substantive
business of the Board; and
b.
Reimbursement of actual expenses while performing substantive business of the
Board.
2. Members of the
Board shall receive no other compensation, expense reimbursement, or in-lieu-of
payments.
J.
Accounting.
The Board shall keep an accurate accounting of all activities,
expenditures, and receipts on behalf of the Marketplace and report to the
Arkansas Health Insurance Marketplace Legislative Oversight Committee upon the
Committee's request.
K.
State, Federal, or Private Grants.
1. If the Insurance Commissioner applies for
and receives state, federal, or private grant funds available to assist with
the planning, implementation, and operation of the Marketplace, the Marketplace
may enter into a memorandum of understanding with the Insurance Commissioner
concerning the use and expenditure of the funds in a manner authorized by state
or federal law, including without limitation Ark. Code§
23-61-803.
2. The Marketplace may apply for state,
federal, public, or private funding in the time specified in state or federal
law, including without limitation Ark. Code §
23-61-803.
IV.
RULES, POLICIES, AND
PROCEDURES
A.
Authority.
Ark. Code §
23-61-803
requires the Marketplace to promulgate rules, policies, and procedures to
implement its statutory obligations.
B.
Initiation of Rule-making.
The process of adopting a new rule, policy, or procedure or
amending or repealing an existing rule, policy, or procedure (hereinafter
referred to as "rule-making") may be initiated by request of the Board or
Executive Director that the staff submit proposed drafts.
C.
Notice.
The Marketplace shall give notice of the proposed rule-making
pursuant to Ark. Code §
23-61-803.
D.
Public Input.
1. In accordance with Ark. Code §
23-61-803,
an interested person may petition the
Marketplace within a specified period of the rule-making for an
oral hearing. An oral hearing shall be granted if requested by twenty-five (25)
people, by a governmental subdivision or agency, or by an association having no
fewer than twenty-five (25) members.
2. A public hearing will provide affected
persons and other members of the public a reasonable opportunity for
presentation of evidence, arguments, and oral statements within reasonable
conditions and limitations imposed by the Marketplace to avoid duplication,
irrelevant comments, unnecessary delay, or disruption of the
proceedings.
3. The Chair, a member
of the Board, or a person designated by the Board may preside at the public
hearing. The Marketplace must ensure that its personnel responsible for
preparing the proposed rule, policy, or procedure or amendment are available to
explain the proposal and to respond to questions or comments regarding the
proposed rule, policy, or procedure.
4. A person may submit written statements
within a specified period of time. All timely, written statements will be
considered by the Marketplace and be made a part of the rulemaking
record.
E.
Decision to Adopt, Amend or Repeal a Rule, Policy, or Procedure.
1. The Marketplace shall not finalize
language of a rule, policy, or procedure or
decide whether to adopt a rule, policy, or procedure until the
period for public comment has expired.
2. Before acting on a proposed rule, policy,
or procedure the Marketplace shall consider all of the written submissions and
oral submissions received in the rule-making proceeding or a memorandum
summarizing such oral submissions and the fiscal impact statement issued in the
rule-making proceeding.
3. The
Marketplace may use its own experience, specialized knowledge, and judgment in
the rule-making process.
F.
Variance Between Adopted Rule,
Policy, or Procedure and Published Notice of a Proposed Rule, Policy, or
Procedure,
1. The Marketplace shall not
adopt a rule, policy, or procedure that differs from the rule, policy, or
procedure proposed in the published notice of the intended rule-making on which
the rule, policy, or procedure is based unless:
a. The final rule, policy, or procedure is in
character with the original scheme and was a logical outgrowth of the notice
and comments stemming from the proposed rule, policy, or procedure;
or
b. The notice fairly apprised
interested persons of the subject and the issues that would be considered so
that those persons had an opportunity to comment.
2. In determining whether the final rule,
policy, or procedure is in character with the original scheme and was a logical
outgrowth of the notice and comments, and that the notice of intended
rule-making provided fair warning that the outcome of that rule-making
proceeding could be the rule, policy, or procedure in question, the Marketplace
must consider the extent to which the:
a.
Persons who will be affected by the rule, policy, or procedure should have
understood that the rule-making proceeding on which it is based could affect
their interests;
b. Subject matter
of the rule, policy, or procedure or issues determined by the rule, policy, or
procedure are different from the subject matter or issues contained in the
notice of intended rule-making; and
c. Effects of the rule, policy, or procedure
differ from the effects of the proposed rule, policy, or procedure contained in
the notice of intended rule-making.
G.
Concise Statement of
Reasons.
1. When requested by an
interested person, either prior to the adoption of a proposed rule, policy, or
procedure or within thirty (30) days after its adoption, the Marketplace shall
issue a concise statement of the principal reasons for and against its
adoption, amendment, or repeal, incorporating therein its reasons for
overruling the considerations urged against its adoption, amendment, or repeal.
Requests for such a statement must be in writing and be delivered to the
employee identified by the Marketplace as having authority to accept the
request. The request should indicate whether the statement is sought for all or
only a specified part of a rule, policy, or procedure. A request will be
considered to have been submitted on the date on which it is received by the
authorized employee of the Marketplace.
2. The concise statement of reasons must
contain:
a. The Marketplace's reasons for
adopting the rule, policy, or procedure;
b. An indication of any change between the
text of the proposed rule, policy, or procedure and the text of the rule,
policy, or procedure as finally adopted, with explanations for any such change;
and
c. The principal reasons urged
in the rule-making procedure for and against the rule, policy, or procedure and
the Marketplace's reasons for overruling the arguments made against the rule,
policy, or procedure.
H.
Factors to Consider When Developing
Rules, Policies, and Procedures.
1.
Prior to the adoption, amendment, or repeal of a rule, policy, or procedure,
the Board shall consider the following factors:
a. Whether the Board is required by statute
to adopt the proposed rule, policy, or procedure, whether by a specific date,
and whether the Board has discretion to promulgate rules, policies, or
procedures;
b. Other statutes
relevant to the proposed rule, policy, or procedure and its
alternatives;
c. The specific
nature and significance of the problem the Board addresses with the proposed
rule, policy, or procedure including without limitation:
i. The nature and degree of the risks the
problem poses;
ii. The priority of
addressing those risks as opposed to other matters or activities within the
Board's jurisdiction;
iii. Whether
the problem warrants new Board action; and
iv. The countervailing risks that may be
posed by alternative rules, policies, or procedures for the Board;
d. Whether existing rules,
policies, or procedures have created or contributed to the problem the Board is
addressing with the proposed rule, policy, or procedure and whether those
rules, policies, or procedures could be amended or repealed to address the
problem in whole or in part;
e.
Reasonable alternatives to the proposed rule, policy, or procedure, including
without limitation:
I. Adopting no rule,
policy, or procedure;
II. Amending
or repealing existing rules, policies, or procedures; and
III. Other potential responses that could be
taken instead of Board action;
f. The financial impact of the proposed rule,
policy, or procedure; and
g. Any
other factor relevant to the need for and alternatives to the proposed rule,
policy, or procedure.
2.
The Board shall not adopt, amend, or repeal a rule, policy, or procedure unless
the rule, policy, or procedure is based on the best reasonably obtainable
scientific, technical, economic, or other evidence and information available
concerning the need for, consequences of, and alternatives to the rule, policy,
or procedure.
3. The Board shall
adopt the least costly rule, policy, or procedure considered under this
section, unless:
a. The additional benefits of
the more costly rule, policy, or procedure justify its additional
cost;
b. The Board explains its
reason for adoption of the more costly rule, policy, or procedure in
writing;
c. The reason is based on
the interests of public health, safety, or welfare; and
d. The reason is within the scope of the
Board's statutory authority.
I.
Contents.
The Marketplace shall cause its rules, policies, and procedures
to be published and. made available to interested persons on its website. The
publication must include:
1. The text
of the final rule, policy, or procedure; and
2. The proposed effective date of the final
rule, policy, or procedure.
J.
Incorporation by Reference.
1. By reference in a rule, policy, or
procedure, the Marketplace may incorporate all or
part of a code, standard, rule, or other matter if the
Marketplace finds that copying the matter into the Marketplace's rule, policy,
or procedure would be unduly cumbersome, expensive, or otherwise
inexpedient.
2. The
reference in the Marketplace rule, policy, or procedure shall fully and
precisely Identify the incorporated matter by title, citation, date, and
edition, if any; briefly indicate the precise subject and general contents of
the incorporated matter; and state that the rule, policy, or procedure does not
include any later amendments or editions of the incorporated matter.
3. The Marketplace may incorporate such a
matter by reference in a proposed or adopted rule, policy, or procedure only if
the Marketplace makes copies of the incorporated matter readily available to
the public. The Marketplace must retain a copy of materials incorporated by
reference in a rule, policy, or procedure of the Marketplace.
K.
Filing.
1. After the Marketplace formally adopts a
new rule, policy, or procedure; amends a current rule, policy, or procedure; or
repeals an existing rule, policy, or procedure it shall file final copies of
the rule, policy, or procedure and a statement of financial impact for the
rule, policy, or procedure with the Arkansas Health Insurance Marketplace
Legislative Oversight Committee, the Secretary of State, the Arkansas State
Library, and Bureau of Legislative Research, or as otherwise provided by Ark.
Code §
23-61-803.
2. A final rule, policy, or procedure shall
not be filed until after the thirty-day public comment period has
expired.
3. The financial impact
statement shall be prepared as directed under Ark. Code §
23-61-803.
4. If a financial impact statement reveals a
new or increased cost or obligation of at least one hundred thousand dollars
($100,000) per year to a private individual, private entity, private business,
state government, county government, municipal government, or to two (2) or
more of those entities combined, the Board shall file written findings at the
time of filing the financial impact statement. The written findings shall be
filed simultaneously with the financial impact statement and shall include
without limitation:
a. A statement of the
basis and purpose of the rule, policy, or procedure;
b. The problem the Board seeks to address
with the proposed rule, including a statement of whether a rule, policy, or
procedure is required by statute;
c. A description of the factual evidence
that:
i. Justifies the Board's need for the
proposed rule, policy, or procedure; and
ii. Describes how the benefits of the rule,
policy, or procedure meet the relevant statutory objectives and justify the
costs of the rule, policy, or procedure;
d. A list of less costly alternatives to the
proposed rule, policy, or procedure and the reasons why the alternatives do not
adequately address the problem to be solved by the proposed rule, policy, or
procedure;
e. A list of
alternatives to the proposed rule, policy, or procedure that were suggested as
a result of public comment and the reasons why the alternatives do not
adequately address the problem to be solved by the proposed rule, policy, or
procedure;
f. A statement of
whether existing rules, policies, and procedures have created or contributed to
the problem the Board seeks to address with the proposed rule, policy, or
procedure;
g. If existing rules,
policies, or procedures have created or contributed to the problem, an
explanation of why amendment or repeal of the rule, policy, or procedure
creating or contributing to the problem is not a sufficient response;
and
h. A Board plan for review of
the rule, policy, or procedure no less than every ten (10) years to determine
whether, based upon the evidence, there remains a need for the rule including
without limitation whether:
i. The rule,
policy, or procedure is achieving the statutory objectives;
ii. The benefits of the rule, policy, or
procedure continue to justify its costs; and
iii. The rule, policy, or procedure can be
amended or repealed to reduce costs while continuing to achieve the statutory
objections.
5. Proof of filing a copy of a final rule,
policy, or procedure with the Arkansas Health Insurance Marketplace Legislative
Oversight Committee, the Secretary of State, the Arkansas State Library, and
Bureau of Legislative Research, will be kept in a file maintained by the
Marketplace.
6. Notice of the rule,
policy, or procedure change will be posted on the Marketplace's
website.
L.
Notice
of Final Rule, Policy, or Procedure.
1.
After the expiration of the thilty-day public comment period and before the
effective date of the rule, policy, or procedure the Marketplace shall take
appropriate measures to make the final rule, policy, or procedure known to the
persons who may be affected by the rule, policy, or procedure.
2. Appropriate measures shall include without
limitation the posting of the following
information on the Marketplace's website:
a. The final rule, policy, or
procedure;
b. Copies of all written
comments submitted to the Marketplace regarding the rule, policy, or
procedure;
c. A summary of all
written and oral comments submitted to the Marketplace regarding the rule,
policy, or procedure and the Marketplace's response to those comments;
and
d. The proposed effective date
of the final rule, policy, or procedure.
M.
Effective Date.
The rule, policy, or procedure will be effective thirty (30) days
after the filing of the final rule, policy, or procedure unless a later date is
specified by law or in the rule, policy, or procedure itself
V.
EMERGENCY
RULE-MAKING
A.
Imminent
Peril.
1. If the Marketplace finds
imminent peril to the public health, safety, or welfare or compliance with
federal laws or regulations requires adoption of a rule, policy, or procedure,
upon less than thirty (30) days notice and states in writing its reasons for
that finding, it may proceed without prior notice or hearing, or upon any
abbreviated notice and hearing that it may choose, to adopt an emergency rule,
policy, or procedure.
2. The
emergency rule, policy, or procedure may be effective for no longer than one
hundred twenty (120) days.
B.
Filing.
1. The emergency rule, policy, or procedure
shall be filed with the Arkansas Health Insurance Marketplace Legislative
Oversight Committee, the Secretary of State, the Arkansas State Library, and
Bureau of Legislative Research.
2.
The Marketplace will file with the rule, policy, or procedure its written
findings justifying the determination that emergency rule-making is
appropriate.
3. Proof of filing a
copy of an emergency rule, policy, or procedure with the
Arkansas Health Insurance Marketplace Legislative Oversight
Committee, the Secretary of State, the Arkansas State Library, and Bureau of
Legislative Research, will be kept in a file maintained by the
Marketplace.
C.
Notice.
1. The emergency rule,
policy, or procedure shall be posted on the Marketplace's website.
2. The Marketplace shall take appropriate
measures to make an emergency rule, policy, or procedure known to persons who
may be affected by the emergency rule, policy, or procedure.
D.
Effective Date.
The emergency rule, policy, or procedure will be effective
immediately upon filing or at a stated time less than thirty (30) days after
filing if the Marketplace finds that this effective date is necessary because
of imminent peril to the public health, safety, or welfare.
E.
Successive Emergency Rule, Policy,
or Procedure,
If, after the expiration of the effective period of an emergency
rule, policy, or procedure the Marketplace wishes to adopt a successive
emergency rule, policy, or procedure that is identical or substantially similar
to the expired emergency rule, policy, or procedure the Marketplace shall not
adopt the successive emergency rule, policy, or procedure earlier than thirty
(30) days after the expiration of the emergency rule, policy, or
procedure.
