OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 390 Bill Analysis
133rd General Assembly
Click here for H.B. 390’s Fiscal Note
Version: As Introduced
Primary Sponsors: Reps. Crossman and Clites
Effective Date:
Yosef Schiff, Attorney
SUMMARY
 Repeals outright suspended provisions that allowed health insurers to pass on the cost
of reinsurance to certain high risk individuals.
 Codifies in state law the federal Patient Protection and Affordable Care Act’s (ACA’s)
limitations on premium charges.
 Codifies in state law the ACA’s ban of annual and lifetime limits.
 Codifies in state law the ACA’s ban on preexisting condition exclusions.
 Codifies in state law the ACA’s provisions requiring health plans to offer certain essential
health benefits.
 Codifies in state law the ACA’s cost sharing limitations.
 Codifies in state law the ACA’s requirement that a health plan provide benefits that are
actuarially equivalent to 60% of the full actuarial value of the benefits provided.
DETAILED ANALYSIS
High risk pool repeal
Prior to the passage of the federal Patient Protection and Affordable Care Act (ACA) in
2010, Ohio had several provisions relating to the use of so-called “high risk pools” by certain
health insurers (specifically, health insuring corporations, sickness and accident insurers, and
multiple employer welfare arrangements).1 In short, insurers that offered individual (nongroup)
plans had to accept most individuals who applied for coverage during an open enrollment
period. These insurers could then purchase reinsurance for individuals with preexisting
1 R.C. 3924.01.
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conditions (the “high risk” individuals). The cost of this reinsurance could then be passed on to
these individuals in the form of higher premiums (up to five times higher). Thus, “high risk pool”
really refers to the set of individuals whose plans were reinsured and who paid higher
premiums to offset the cost of reinsurance. These provisions are currently suspended,2 as the
ACA requires coverage of all individuals who apply for coverage and bans preexisting condition
exclusions. The bill repeals outright these suspended provisions.3
Limitations on premium charges
The bill codifies the ACA’s limitations on premium charges. In particular, it provides that
the premium rate for a health benefit plan (any plan of health coverage the state may regulate,
including any plan offered by a health insuring corporation, sickness and accident insurer,
public employee benefit plan, multiple employer welfare arrangement, or fraternal benefit
society) may vary only with respect to the following factors:
 Whether the health benefit plan covers an individual or family;
 The rating area (an area within the state defined by the Superintendent of Insurance for
purposes of setting rates);
 Age, except that such rate may not vary by more than three to one for adults; and
 Tobacco use, except that such rate cannot vary by more than one and one-half to one.4
With respect to family plans, the rating variations above must be applied based on the
portion of the premium that is attributable to each family member. For example, if one family
member smokes but the others do not, any increase based on tobacco use may only take into
account that particular person’s tobacco use and cannot increase the premium as if all family
members smoked.5
The bill further requires the Superintendent of Insurance to adopt rules establishing
rating areas within the state and defining permissible age bands for purposes of the third bullet
point above.6
2Section 3 of S.B. 9 of the 130th General Assembly, as amended by Section 610.53 of H.B. 49 of the 132nd
General Assembly.
3Section 3 of the bill, repealing R.C. 1751.15, 3923.58, 3923.581, 3923.582, 3923.59, 3924.07, 3924.08,
3924.09, 3924.10, 3924.11, 3924.111, 3924.12, 3924.13, and 3924.14. Conforming changes in R.C.
1731.03, 1731.05, 1731.09, 1739.05, 1751.16, 1751.18, 3923.122, 3923.57, 3924.01, 3924.02, 3924.06,
and 3924.73.
4 R.C. 3902.50(B) and 3902.51(A).
5 R.C. 3902.51(B).
6 R.C. 3902.51(C).
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Application
These provisions apply to individual and small group plans.7
Annual and lifetime limits
The bill codifies the ACA’s ban on the use of annual or lifetime limits on the dollar value
of essential health benefits (see “Essential health benefits” below).8
Application
These provisions apply to individual and small group plans.9
Preexisting conditions
The bill also codifies the ACA’s ban on the use of preexisting condition exclusions. A
preexisting condition exclusion is a limitation or exclusion of benefits relating to a condition
based on the fact that the condition was present before the date of enrollment in the plan,
whether or not any medical advice, diagnosis, care, or treatment was recommended or
received before such date. “Condition” does not include genetic information in the absence of a
diagnosis of the condition related to such information.10 Specifically, the bill requires a health
benefit plan to accept any individual or employer that applies for coverage, regardless of
whether any individual or employee has a preexisting condition, subject to an open enrollment
period (a period during which all employees of an employer may opt into, opt out of, or modify
coverage) or a special enrollment period (a period outside of open enrollment during which a
person may opt into, opt out of, or modify coverage because of a qualifying event). It also
prohibits a health plan issuer (an entity offering a health benefit plan) from imposing any
preexisting condition exclusion on any person.11
Under the bill, the Superintendent must adopt rules to establish a statewide open
enrollment period for individual plans. Furthermore, each health plan issuer must provide
special enrollment periods for individuals who would otherwise lose coverage as a result of any
of the following:
 The person had other coverage when first offered new coverage (e.g., a person was
covered under a spouse’s coverage and therefore declined coverage offered by the
person’s employer) and all of the following applied:
7 R.C. 3902.51(A).
8 R.C. 3902.51(D).
9 R.C. 3902.51(D) and 3902.53(E).
10 R.C. 3902.50(C).
11R.C. 3902.50(B) and 3902.52(A) and (B); conforming changes in R.C. 1731.04, 1751.06, 1751.58,
3922.01, 3923.57, 3923.571, 3924.01, 3924.02, 3924.03, 3924.033, and 3924.51.
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 The person stated in writing at the time coverage was offered that existing coverage
was the reason for declining coverage, but only if the employer required such a
written statement;
 The person’s existing coverage has since ended for either of the following reasons:
 It was under a COBRA continuation provision12 that has been exhausted; or
 It was not under a COBRA continuation 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, death, termination of employment, or reduction in
the number of hours of employment) or employer contributions toward such
coverage were terminated.
 Under the terms of the plan, the employee requests such enrollment not later than
30 days after the date of exhaustion or termination of the previous coverage.
 The covered employee has died.
 The covered employee was terminated or had hours reduced.
 The covered employee and the employee’s spouse divorced or legally separated.
 A dependent child ceased to be a dependent child.
 The covered employee was retired and the employer declared bankruptcy.13
Application
These provisions apply to all health benefit plans.14
Essential health benefits
The bill codifies into state law the ACA’s essential health benefits requirements. It
requires health plan issuers to offer essential health benefits and requires the Superintendent
to define what those essential health benefits are. Any definition must include at least the
following general categories and the items and services covered within the categories:
 Ambulatory patient services;
 Emergency services;
12 The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) gives workers and their
families who lose their health benefits the right to choose to continue group health benefits provided by
their group health plan for limited periods of time under certain circumstances. See 29 United States
Coded (U.S.C.) 1161 et seq. and https://www.dol.gov/general/topic/health-plans/cobra.
13R.C. 3902.52(C); 26 U.S.C. 9801(f) and 29 U.S.C. 1163, not in the bill. Note that in an apparent drafting
error, the bill references 42 U.S.C. 9801(f), which does not exist. The correct reference is 26 U.S.C.
9801(f).
14 R.C. 3902.52(A).
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 Hospitalization;
 Maternity and newborn care;
 Mental health and substance use disorder services, including behavioral health
treatment;
 Prescription drugs;
 Rehabilitative and habilitative services and devices;
 Laboratory services;
 Preventive and wellness services and chronic disease management;
 Pediatric services, including oral and vision care.15
The Superintendent must ensure that the scope of the essential health benefits is equal
to the scope of benefits provided under a typical employer plan. To do so, the Superintendent
must conduct a survey of employer-sponsored coverage to determine the benefits typically
covered by employers, including multi-employer plans. In defining and revising the benefits, the
Superintendent must report and certify to the General Assembly that such essential health
benefits meet this typicality requirement.16
In defining the essential health benefits, the Superintendent must do all of the
following:
 Ensure that the essential health benefits reflect an appropriate balance among the
categories, so that benefits are not unduly weighted toward any category;
 Not make coverage decisions, determine reimbursement rates, establish incentive
programs, or design benefits in ways that discriminate against individuals because of
their age, disability, or expected length of life;
 Take into account the health care needs of diverse segments of the population,
including women, children, persons with disabilities, and other groups;
 Ensure that health benefits established as essential not be subject to denial to
individuals against their wishes on the basis of the individuals’ age or expected length of
life or of the individuals’ present or predicted disability, degree of medical dependency,
or quality of life;
 Provide that a qualified health benefit plan shall not be treated as providing coverage
for the essential health benefits unless the plan does both of the following:
 Provides that coverage for emergency services will be provided with no prior
authorization requirement or other coverage limitation on out-of-network providers
15 R.C. 3902.53(B)(1) and (D)(1)(b); conforming change in R.C. 1751.01.
16 R.C. 3902.53(B)(2).
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that is more restrictive than those requirements or limitations on in-network
providers. “Emergency services” means (1) a medical screening examination, as
required by federal law, that is within the capability of the emergency department of
a hospital, including ancillary services routinely available to the emergency
department, to evaluate an emergency medical condition, and (2) such further
medical examination and treatment that are required by federal law to stabilize an
emergency medical condition and are within the capabilities of the staff and facilities
available at the hospital, including any trauma and burn center of the hospital.
 Provides that if emergency services are provided out-of-network, the cost-sharing
requirement is the same requirement that would apply if such services were
provided in-network.
 Periodically review the essential health benefits and provide a report to the General
Assembly and the public that contains all of the following:
 An assessment of whether covered persons are facing any difficulty accessing
needed services for reasons of coverage or cost;
 An assessment of whether the essential health benefits needs to be modified or
updated to account for changes in medical evidence or scientific advancement;
 Information on how the essential health benefits will be modified to address any
such gaps in access or changes in the evidence base;
 An assessment of the potential of additional or expanded benefits to increase costs
and the interactions between the addition or expansion of benefits and reductions
in existing benefits to meet the typicality requirements described above.
 Periodically update the essential health benefits to address any gaps in access to
coverage or changes in the evidence base the Superintendent identifies in the review
conducted under the above bullet point.17
Nothing in the bill is to be construed to prohibit a health benefit plan from providing
benefits in excess of the essential health benefits.18
Applicability
These provisions apply to individual and small group plans.19
Preventive services
The bill requires a health benefit plan to cover and not impose any cost-sharing
requirements for the following:
17 R.C. 3902.53(B)(3); R.C. 3923.65, not in the bill.
18 R.C. 3902.53(B)(4).
19 R.C. 3902.53(E).
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 Evidence-based items or services that have in effect a rating of “A” or “B” in the current
recommendations of the U.S. Preventive Services Task Force;
 Immunizations that have in effect a recommendation from the advisory committee on
immunization practices of the U.S. Centers for Disease Control and Prevention with
respect to the individual involved;
 With respect to infants, children, and adolescents, evidence-informed preventive care
and screenings provided for in the comprehensive guidelines supported by the U.S.
Health Resources and Services Administration;
 With respect to women, such additional preventive care and screenings not described in
the first bullet point above as provided for in comprehensive guidelines supported by
the U.S. Health Resources and Services Administration.20
Applicability
These provisions apply to all health benefit plans.21
Cost sharing
Under the bill, a health plan issuer cannot require cost sharing (the cost to a covered
person under a health benefit plan according to any coverage limit, copayment, coinsurance,
deductible, or other out-of-pocket expense requirement) in an amount greater than $7,900 for
self-only coverage and $15,800 for other than self-only coverage for plan years beginning in
2020. For plan years beginning after 2020, the cost-sharing limit is as follows:
 For self-only coverage, equal to $7,900 plus the product of that amount and the
premium adjustment percentage for that calendar year. The premium adjustment
percentage for a particular year is the percentage by which the average per capita
premium for health benefit plans in Ohio for the preceding calendar year, as estimated
by the Superintendent not later than the