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Annotated Code of Maryland

Copyright 2013 by Matthew Bender and Company, Inc., a member of the LexisNexis Group

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*** Statutes current through the 2013 General Assembly Regular Session ***

*** Annotations current through September 9, 2013 ***

INSURANCE

TITLE 31. MARYLAND HEALTH BENEFIT EXCHANGE.

GO TO MARYLAND STATUTES ARCHIVE DIRECTORY

Md. INSURANCE Code Ann. § 31-101 (2013)

THIS SECTION HAS MORE THAN ONE DOCUMENT WITH VARYING EFFECTIVE DATES.

§ 31-101. Definitions (Amendment effective January 1, 2014.)

(a) In general. -- In this title the following words have the meanings indicated.

(a-1) Application counselor. -- "Application counselor" means an individual who holds an Individual Exchange ap-

plication counselor certification issued under § 31-113(r) of this title.

(a-2) Application counselor sponsoring entity; sponsoring entity. -- "Application counselor sponsoring entity" or

"sponsoring entity" means an entity designated by the Individual Exchange as a sponsoring entity under § 31-113(r) of

this title.

(b) Board. -- "Board" means the Board of Trustees of the Exchange.

(c) Carrier. -- "Carrier" means:

(1) an insurer authorized to sell health insurance;

(2) a nonprofit health service plan;

(3) a health maintenance organization;

(4) a dental plan organization; or

(5) any other entity providing a plan of health insurance, health benefits, or health services authorized under this

article or the Affordable Care Act.

(c-1) Captive producer. -- "Captive producer" means an insurance producer who:

(1) is licensed in the State and authorized by the Commissioner to sell, solicit, or negotiate health insurance;

(2) receives an authorization and meets the other requirements set forth in § 31-113(n)(2) of this title;

(3) has a current and exclusive appointment with a single carrier; and

(4) receives compensation as a captive producer only from that carrier.

Md. INSURANCE Code Ann. § 31-101

(c-2) Consolidated Services Center; CSC. -- "Consolidated Services Center" or "CSC" means the consumer assis-

tance call center established in accordance with the requirement to operate a toll-free hotline under § 1311(d)(4) of the

Affordable Care Act and § 31-108(b)(5) of this title.

(d) Coverage level. -- "Coverage level" means a level of coverage, as defined in § 1302 of the Affordable Care Act

and as determined in regulations adopted by the Secretary, for a qualified health plan.

(e) Exchange. --

(1) "Exchange" means the Maryland Health Benefit Exchange established as a public corporation under §

31-102 of this title.

(2) "Exchange" includes:

(i) the Individual Exchange; and

(ii) the Small Business Health Options Program (SHOP Exchange).

(e-1) Full-time employee. -- "Full-time employee" means an employee who works, on average, at least 30 hours per

week.

(f) Fund. -- "Fund" means the Maryland Health Benefit Exchange Fund established under § 31-107 of this subtitle.

(g) Health benefit plan. --

(1) "Health benefit plan" means a policy, contract, certificate, or agreement offered, issued, or delivered by a

carrier to an individual or small employer in the State to provide, deliver, arrange for, pay for, or reimburse any of the

costs of health care services.

(2) "Health benefit plan" does not include:

(i) coverage only for accident or disability insurance or any combination of accident and disability insurance;

(ii) coverage issued as a supplement to liability insurance;

(iii) liability insurance, including general liability insurance and automobile liability insurance;

(iv) workers' compensation or similar insurance;

(v) automobile medical payment insurance;

(vi) credit-only insurance;

(vii) coverage for on-site medical clinics; or

(viii) other similar insurance coverage, specified in federal regulations issued pursuant to the federal Health

Insurance Portability and Accountability Act, under which benefits for health care services are secondary or incidental

to other insurance benefits.

(3) "Health benefit plan" does not include the following benefits if they are provided under a separate policy,

certificate, or contract of insurance, or are otherwise not an integral part of the plan:

(i) limited scope dental or vision benefits;

(ii) benefits for long-term care, nursing home care, home health care, community-based care, or any combi-

nation of these benefits; or

(iii) such other similar limited benefits as are specified in federal regulations issued pursuant to the federal

Health Insurance Portability and Accountability Act.

(4) "Health benefit plan" does not include the following benefits if the benefits are provided under a separate

policy, certificate, or contract of insurance, there is no coordination between the provision of the benefits and any ex-

clusion of benefits under any group health plan maintained by the same plan sponsor, and the benefits are paid with

respect to an event without regard to whether the benefits are provided under any group health plan maintained by the

same plan sponsor:

(i) coverage only for a specified disease or illness; or


(ii) hospital indemnity or other fixed indemnity insurance.

(5) "Health benefit plan" does not include the following if offered as a separate policy, certificate, or contract of

insurance:

(i) Medicare supplemental insurance (as defined under § 1882(g)(1) of the Social Security Act);

(ii) coverage supplemental to the coverage provided under Chapter 55 of Title 10, United States Code (Civil-

ian Health and Medical Program of the Uniformed Services (CHAMPUS)); or

(iii) similar supplemental coverage provided to coverage under a group health plan.

(h) Individual Exchange. -- "Individual Exchange" means the division of the Exchange that serves the individual

health insurance market.

(i) Individual Exchange navigator. -- "Individual Exchange navigator" means an individual who:

(1) holds an Individual Exchange navigator certification; and

(2) provides the services described in § 31-113(d)(1) of this title for an Individual Exchange connector entity.

(j) Individual Exchange navigator certification. -- "Individual Exchange navigator certification" means a certificate

issued by the Individual Exchange that authorizes an individual to act as an Individual Exchange navigator.

(k) Individual Exchange connector entity. -- "Individual Exchange connector entity" means a community-based or-

ganization or other entity or a partnership of entities that:

(1) is authorized by the Individual Exchange under § 31-113(f) of this title; and

(2) employs or engages Individual Exchange navigators to provide the services described in § 31-113(d)(1) of

this title.

(l) Individual Exchange connector entity authorization. -- "Individual Exchange connector entity authorization"

means a grant of authority from the Individual Exchange to an Individual Exchange connector entity under § 31-113(f)

of this title.

(m) Insurance producer authorization. -- "Insurance producer authorization" means a permit issued by the SHOP

Exchange or Individual Exchange to allow an insurance producer to sell qualified plans in the SHOP Exchange or Indi-

vidual Exchange.

(n) Managed care organization. -- "Managed care organization" has the meaning stated in § 15-101 of the Health -

General Article.

(o) Maryland Health Care Reform Coordinating Council. -- "Maryland Health Care Reform Coordinating Council"

means the joint executive-legislative council established and expanded by Executive Orders 01.01.2010.07 and

01.01.2011.10.

(p) Qualified dental plan. -- "Qualified dental plan" means a dental plan certified by the Exchange that provides

limited scope dental benefits, as described in § 31-108(b)(2) of this title.

(q) Qualified employer. -- "Qualified employer" means a small employer that elects to make its full-time employees

and, at the option of the employer, some or all of its part-time employees eligible for one or more qualified health plans

offered through the SHOP Exchange, provided that the employer:

(1) has its principal place of business in the State and elects to provide coverage through the SHOP Exchange to

all of its eligible employees, wherever employed; or

(2) elects to provide coverage through the SHOP Exchange to all of its eligible employees who are principally

employed in the State.

(r) Qualified health plan. -- "Qualified health plan" means a health benefit plan that has been certified by the Ex-

change to meet the criteria for certification described in § 1311(c) of the Affordable Care Act and § 31-115 of this title.

(s) Qualified individual. -- "Qualified individual" means an individual, including a minor, who at the time of en-

rollment:


(1) is seeking to enroll in a qualified health plan offered to individuals through the Exchange;

(2) resides in the State;

(3) is not incarcerated, other than incarceration pending disposition of charges; and

(4) is, and reasonably is expected to be for the entire period for which enrollment is sought, a citizen or national

of the United States or an alien lawfully present in the United States.

(t) Qualified plan. -- "Qualified plan" means a:

(1) qualified health plan;

(2) qualified dental plan; and

(3) qualified vision plan.

(u) Qualified vision plan. -- "Qualified vision plan" means a vision plan certified by the Exchange that provides

limited scope vision benefits, as described in § 31-108(b)(3) of this title.

(v) Secretary. -- "Secretary" means the Secretary of the federal Department of Health and Human Services.

(w) SHOP Exchange. -- "SHOP Exchange" means the Small Business Health Options Program authorized under §

31-108(b)(13) of this title.

(x) SHOP Exchange navigator. -- "SHOP Exchange navigator" means an individual engaged by the SHOP Ex-

change and authorized by the Commissioner to provide the services described in § 31-112(c)(1) of this title.

(y) SHOP Exchange navigator license. -- "SHOP Exchange navigator license" means a license issued by the Com-

missioner that authorizes an individual to carry out the functions set forth in § 31-112(c) of this title in the SHOP Ex-

change.

(z) Small employer. --

(1) "Small employer" means an employer that, during the preceding calendar year, employed an average of not

more than:

(i) 50 employees if the preceding calendar year ended on or before January 1, 2016; and

(ii) 100 employees if the preceding calendar year ended after January 1, 2016.

(2) For purposes of this subsection:

(i) all persons treated as a single employer under § 414(b), (c), (m), or (o) of the Internal Revenue Code shall

be treated as a single employer;

(ii) an employer and any predecessor employer shall be treated as a single employer;

(iii) the number of employees of an employer shall be determined by adding:

1. the number of full-time employees; and

2. the number of full-time equivalent employees, which shall be calculated for a particular month by di-

viding the aggregate number of hours of service of employees who are not full-time employees for the month by 120;

(iv) if an employer was not in existence throughout the preceding calendar year, the determination of whether

the employer is a small employer shall be based on the average number of employees that the employer is reasonably

expected to employ on business days in the current calendar year; and

(v) an employer that makes enrollment in qualified health plans available to its employees through the SHOP

Exchange, and would cease to be a small employer by reason of an increase in the number of its employees, shall con-

tinue to be treated as a small employer for purposes of this title as long as it continuously makes enrollment through the

SHOP Exchange available to its employees.

(aa) State benchmark plan. -- "State benchmark plan" means the health benefit plan designated by the State, under

regulations adopted by the Secretary, to serve as the standard for the essential health benefits to be offered by:

(1) qualified health plans inside the Exchange;


(2) individual health benefit plans, except grandfathered health plans, as defined in § 1251 of the Affordable

Care Act; and

(3) health benefit plans offered to small employers, except grandfathered health plans, as defined in § 1251 of

the Affordable Care Act.

HISTORY: 2013, ch. 368, § 2.

NOTES: AMENDMENT EFFECTIVE JANUARY 1, 2014. --Section 2, ch. 368, Acts 2013, effective January 1, 2014,

added (e-1) and rewrote (z)(2)(iii).

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§ 31-102. Maryland Health Benefit Exchange established.

(a) In general. -- There is a Maryland Health Benefit Exchange.

(b) Nature of Exchange. --

(1) The Exchange is a body politic and corporate and is an instrumentality of the State.

(2) The Exchange is a public corporation and a unit of State government.

(3) The exercise by the Exchange of its authority under this title is an essential governmental function.

(c) Purpose. -- The purposes of the Exchange are to:

(1) reduce the number of uninsured in the State;

(2) facilitate the purchase and sale of qualified health plans in the individual market in the State by providing a

transparent marketplace;

(3) assist qualified employers in the State in facilitating the enrollment of their employees in qualified health

plans in the small group market in the State and in accessing small business tax credits;

(4) assist individuals in accessing public programs, premium tax credits, and cost-sharing reductions; and

(5) supplement the individual and small group insurance markets outside of the Exchange.

(d) Construction of powers. -- Nothing in this title, and no regulation adopted or other action taken by the Exchange

under this title, may be construed to:

(1) preempt or supersede:

(i) the authority of the Commissioner to regulate insurance business in the State; or

(ii) the requirements of the Affordable Care Act;

(2) authorize the Exchange to carry out any function not authorized by the Affordable Care Act; or

(3) authorize the Exchange to offer any products or services except qualified health plans, qualified dental plans,

and qualified vision plans.


HISTORY: 2011, chs. 1, 2; 2012, ch. 152, § 3.

NOTES: EFFECT OF AMENDMENTS. --Section 3, ch. 152, Acts 2012, effective June 1, 2012, added (d)(3) and

made related changes.

EDITOR'S NOTE. --Section 2, chs. 1 and 2, Acts 2011, provides that "with respect to the functions of the Maryland

Health Benefit Exchange established under Section 1 of this Act, and the requirements for health benefit plan certifica-

tion mandated by the federal Patient Protection and Affordable Care Act and as implemented by §§ 31-108 and 31-109

of the Insurance Article, as enacted by Section 1 of this Act, that require further guidance from the Secretary of Health

and Human Services before full implementation is possible, the Exchange may not implement those functions or impose

those requirements until the further guidance is received."

Section 3, chs. 1 and 2, Acts 2011, provides that "the Maryland Health Benefit Exchange established under Section 1

of this Act may not exercise any powers, duties, or functions under the provisions of § 31-108(b)(1), (7), (12), (17),

(19), and (20), § 31-109(a), or § 31-110 of the Insurance Article, as enacted by Section 1 of this Act, until:

"(1) the Exchange has reported its findings and recommendations, including recommendations for legislation neces-

sary or desirable to carry out its purposes and functions, to the Governor and the General Assembly, in accordance with

Section 5 of this Act; and

"(2) the Governor and the General Assembly authorize the exercise of the powers, duties, and functions through en-

actment of additional legislation in the 2012 legislative session."


of this Act:

"(1) in consultation with the advisory committees established under § 31-106(g) of the Insurance Article, as enacted

by Section 1 of this Act, and with other stakeholders, shall study and make recommendations regarding:

"(i) the feasibility and desirability of the Exchange engaging in:

"1. selective contracting, either through competitive bidding or a negotiation process similar to that used by large

employers, to reduce health care costs and improve quality of care by certifying only those health benefit plans that

meet certain requirements such as promoting patient-centered medical homes, adopting electronic health records, meet-

ing minimum outcome standards, implementing payment reforms to reduce medical errors and preventable hospitaliza-

tions, reducing disparities, ensuring adequate reimbursements, enrolling low-risk members and underserved popula-

tions, managing chronic conditions and promoting healthy consumer lifestyles, value-based insurance design, and ad-

hering to transparency guidelines and uniform price and quality reporting; and

"2. multistate or regional contracting;

"(ii) the rules under which health benefit plans should be offered inside and outside the Exchange in order to mitigate

adverse selection and encourage enrollment in the Exchange, including:

"1. whether any benefits should be required of qualified health plans beyond those mandated by the federal Patient

Protection and Affordable Care Act (Affordable Care Act), and whether any such additional benefits should be required

of health benefit plans offered outside the Exchange;

"2. whether carriers offering health benefit plans outside the Exchange should be required to offer either all the same

health benefit plans inside the Exchange, or alternatively, at least one health benefit plan inside the Exchange; and

"3. which provisions applicable to qualified health plans should be made applicable to qualified dental plans;

"(iii) the design and operation of the Exchange's Navigator Program and any other appropriate consumer assistance

mechanisms, including:

"1. the infrastructure of the existing private sector health insurance distribution system in the State to determine

whether private sector resources may be available and suitable for use by the Exchange;

"2. the effect the Exchange may have on private sector employment in the health insurance distribution system in the

State;

"3. what functions, in addition to those required by the Affordable Care Act, should be performed by Navigators;

"4. what training and expertise should be required of Navigators, and whether different markets and populations re-

quire Navigators with different qualifications;

"5. how Navigators should be retained and compensated, and how disparities between Navigator compensation and

the compensation of insurance producers outside the Exchange can be minimized or avoided;

"6. how to ensure that Navigators provide information in a manner culturally, linguistically, and otherwise appropri-

ate to the needs of the diverse populations served by the Exchange, and that Navigators have the capacity to meet these

needs; and


"7. what other means of consumer assistance may be appropriate and feasible, and how they should be designed and

implemented;

"(iv) the design and function of the SHOP Exchange beyond the requirements of the Affordable Care Act, to promote

quality, affordability, and portability, including:

"1. whether it should be a defined contribution/employee choice model or whether employers should choose the

qualified health plan to offer their employees;

"2. whether the current individual and small group markets should be merged; and

"3. whether the SHOP Exchange should be made available to employers with 50 to 100 employees prior to 2016, as

authorized by the Affordable Care Act;

"(v) how the Exchange can be self-sustaining by 2015 in compliance with the Affordable Care Act, including:

"1. a recommended plan for the budget of the Exchange;

"2. the user fees, licensing fees, or other assessments that should be imposed by the Exchange to fund its operations,

including what type of user fee cap or other methodology would be appropriate to ensure that the income of the Ex-

change comports with the expenditures of the Exchange; and

"3. a recommended plan for how to prevent fraud, waste, and abuse; and

"(vi) how the Exchange should conduct its public relations and advertising campaign, including what type of solici-

tation, if any, of individual consumers or employers, would be desirable and appropriate; and

"(2) on or before December 23, 2011, shall report its findings and recommendations, including recommendations for

further legislative or regulatory action, to the Governor and, in accordance with § 2-1246 of the State Government Arti-

cle, the General Assembly."

Section 6, chs. 1 and 2, Acts 2011, provides that "on or before December 1, 2015, the Maryland Health Benefit Ex-

change established under Section 1 of this Act, in consultation with the advisory committees established under §

31-106(g) of the Insurance Article, as enacted by Section 1 of this Act, and with other stakeholders, shall conduct a

study and report its findings and recommendations to the Governor and, in accordance with § 2-1246 of the State Gov-

ernment Article, the General Assembly, on whether the Exchange should remain an independent public body or should

become a nongovernmental, nonprofit entity."

Section 8, chs. 1 and 2, Acts 2011, provides that "it is the intent of the General Assembly that the Maryland Health

Benefits Exchange established under Section 1 of this Act should not take any action that would inhibit the potential

transformation of the Exchange into a nongovernmental, nonprofit entity or a quasi-governmental entity."

Section 6, ch. 152, Acts 2012, provides that "or before December 1, 2015, the Maryland Health Benefit Exchange, in

consultation with its advisory committees established under § 31-106(c)(6) of the Insurance Article, and with other

stakeholders, shall conduct a study and report its findings and recommendations to the Governor and, in accordance

with § 2-1246 of the State Government Article, the General Assembly, on whether to the Exchange should remain an

independent public body or should become a nongovernmental, nonprofit entity."

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§ 31-103. Applicable statutory provisions; exceptions.

(a) In general. -- The Exchange is subject to:

(1) the following provisions of the State Finance and Procurement Article:

(i) Title 12, Subtitle 4 (Policies and Procedures for Exempt Units); and

(ii) Title 14, Subtitle 3 (Minority Business Participation);

(2) the following provisions of the State Government Article:

(i) Title 10, Subtitle 1 (Administrative Procedure Act -- Regulations);

(ii) Title 10, Subtitle 5 (Meetings);

(iii) Title 10, Subtitle 6, Part III (Access to Public Records);

(iv) Title 12 (Immunity and Liability); and

(v) Title 15 (Public Ethics); and

(3) Title 5, Subtitle 3 of the State Personnel and Pensions Article.

(b) Exceptions. -- The Exchange is not subject to:

(1) taxation by the State or local government;

(2) Division II of the State Finance and Procurement Article, except as provided in subsection (a)(1) of this sec-

tion;

(3) Title 10 of the State Government Article, except as provided in subsection (a)(2)(i), (ii), and (iii) of this sec-

tion;

(4) Division I of the State Personnel and Pensions Article, except as provided in subsection (a)(3) of this section

and elsewhere in this title; or

(5) this article, except as provided in subsection (c) of this section and elsewhere in this title.

(c) Immunity. --


(1) Except as provided in paragraph (3) of this subsection, to the extent that the Exchange, acting on behalf of a

carrier offering a qualified plan in the Individual Exchange or the SHOP Exchange, is required by law or contract to

collect premiums, conduct billing, send required notices, provide required disclosures, or take any other action normally

taken by a carrier under this article, the carrier is not liable or subject to regulatory sanction by the Commissioner for

the failure of the Exchange to comply with the law or contract in taking an action under this subsection.

(2) (i) Subject to subparagraph (ii) of this paragraph, the Commissioner shall regulate the Exchange in taking an

action under this subsection.

(ii) If the Commissioner finds that the Exchange has failed to comply with the law or contract in taking an ac-

tion under this subsection, the Commissioner:

1. may not impose a fine or an administrative penalty on the Exchange; and

2. may require the Exchange to:

A. make restitution, not to exceed the amount of actual economic damages sustained by the consumer,

to a consumer who has sustained actual economic damages because of the failure of the Exchange to comply with the

law or contract in taking an action; and

B. make restitution, not to exceed the amount of actual premium, premium subsidies, or cost-sharing

subsidies the carrier did not receive, to a carrier that has authorized, provided, or paid for health care services without

receiving premium, premium subsidies, or cost-sharing subsidies the carrier otherwise would have received but for the

failure of the Exchange to comply with the law or contract in taking an action.

(3) (i) The Exchange and the carrier shall hold a consumer harmless from any adverse consequence that is:

1. related to the consumer's purchase of, or coverage under, a qualified plan; and

2. caused by the failure of the Exchange to comply with the law or contract in taking an action under this

subsection.

(ii) Holding the consumer harmless shall include:

1. the extension of deadlines or other accommodations necessary to protect the consumer; and

2. the carrier's authorization of, provision of, or payment for health care services the carrier otherwise

would be under an obligation to authorize, provide, or pay for except for the failure of the Exchange to comply with the

law or contract in taking an action under this subsection.

(4) The Commissioner, in the Commissioner's role as a member of the Board, may not participate in any matter

that involves the alleged failure of the Exchange to comply with the law or contract in taking an action under this sub-

section if, in the Commissioner's judgment, the Commissioner's participation might create a conflict of interest with

respect to the Commissioner's regulatory authority over the Exchange's taking an action under this subsection.

(d) Except as provided in subsection (c) of this section, this section does not:

(1) affect the Commissioner's authority to regulate a carrier under this article; or

(2) limit the authority of the Commissioner to take action against any person with respect to any provision of

this article.

HISTORY: 2011, chs. 1, 2; 2013, ch. 43; ch. 159, § 2.

NOTES: EFFECT OF AMENDMENTS. --Chapter 43, Acts 2013, enacted April 9, 2013, and effective from date of

enactment, substituted "(Administrative Procedure Act -- Regulations)" for "(Governmental Procedures)" in (a)(2)(i).

Section 2, ch. 159, Acts 2013, effective June 1, 2013, added (b)(5), (c), and (d) and made related changes.

EDITOR'S NOTE. --Section 3, ch. 43, Acts 2013, provides that "the provisions of this Act are intended solely to correct

technical errors in the law and there is no intent to revive or otherwise affect law that is the subject of other acts, wheth-

er those acts were signed by the Governor prior to or after the signing of this Act."

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§ 31-104. Board of Trustees.

(a) Established. -- There is a Board of Trustees of the Exchange.

(b) Composition. -- The Board consists of the following members:

(1) the Secretary of Health and Mental Hygiene;

(2) the Commissioner;

(3) the Executive Director of the Maryland Health Care Commission; and

(4) the following members appointed by the Governor, with the advice and consent of the Senate:

(i) three members who:

1. represent the interests of employers and individual consumers of products offered by the Exchange; and

2. may have public health research expertise; and

(ii) three members who have demonstrated knowledge and expertise in at least two of the following areas:

1. individual health care coverage;

2. small employer-sponsored health care coverage;

3. health benefit plan administration;

4. health care finance;

5. administration of public or private health care delivery systems;

6. purchasing and facilitating enrollment in health plan coverage, including demonstrated knowledge and

expertise about the role of licensed health insurance producers and third-party administrators in connecting employers

and individual consumers to health plan coverage; and

7. public health and public health research, including knowledge about the health needs and health dispari-

ties among the State's diverse communities.

(c) Diversity of members. -- In making appointments of members under subsection (b)(4) of this section, the Gov-

ernor shall assure that:


(1) the Board's composition reflects a diversity of expertise;

(2) the Board's composition reflects the gender, racial, and ethnic diversity of the State; and

(3) the geographic areas of the State are represented.

(d) Limitations on affiliations during tenure. --

(1) For purposes of this subsection, "affiliation" means:

(i) a financial interest, as defined in § 15-102 of the State Government Article;

(ii) a position of governance, including membership on a board of directors, regardless of compensation;

(iii) a relationship through which compensation, as defined in § 15-102 of the State Government Article, is

received; or

(iv) a relationship for the provision of services as a regulated lobbyist, as defined in § 15-102 of the State

Government Article.

(2) A member of the Board or of the staff of the Exchange, while serving on the Board or the staff, may not have

an affiliation with:

(i) a carrier, an insurance producer, a third-party administrator, a managed care organization, or any other

person contracting directly with the Exchange;

(ii) a trade association of carriers, insurance producers, third-party administrators, or managed care organiza-

tions; or

(iii) any other association of entities in a position to contract directly with the Exchange.

(e) Term. --

(1) The term of a member appointed by the Governor is 4 years.

(2) The terms of members appointed by the Governor are staggered as required by the terms provided for mem-

bers of the Board on June 1, 2011.

(3) At the end of a term, a member continues to serve until a successor is appointed and qualifies.

(4) A member who is appointed after a term has begun serves only for the rest of the term and until a successor

is appointed and qualifies.

(f) Term limits. -- An appointed member of the Board may not serve more than two consecutive full terms.

(g) Chair. -- The Governor shall designate a chair of the Board.

(h) Meetings; quorum; voting. --

(1) The Board shall determine the times, places, and frequency of its meetings.

(2) Five members of the Board constitute a quorum.

(3) Action by the Board requires the affirmative vote of at least five members.

(i) Reimbursement for expenses. -- A member of the Board is entitled to reimbursement for expenses under the

Standard State Travel Regulations, as provided in the State budget.

(j) Requirements. -- A member shall:

(1) meet the requirements of this title, the Affordable Care Act, and all applicable State and federal laws and

regulations;

(2) serve the public interest of the individuals and qualified employers seeking health care coverage through the

Exchange; and

(3) ensure the sound operation and fiscal solvency of the Exchange.

(k) Standards of performance. -- A member of the Board shall perform the member's duties:


(1) in good faith;

(2) in the manner the member reasonably believes to be in the best interests of the Exchange; and

(3) without intentional or reckless disregard of the care an ordinarily prudent person in a like position would use

under similar circumstances.

(l) Limitation on liability. -- A member of the Board who performs the member's duties in accordance with the

standard provided in subsection (k) of this section may not be liable personally for actions taken as a member.

(m) Removal. -- A member of the Board may be removed for incompetence, misconduct, or failure to perform the

duties of the position.

(n) State Ethics Law applicable; required disclosures. --

(1) (i) A member of the Board shall be subject to the State Ethics Law, Title 15, Subtitles 1 through 7 of the

State Government Article.

(ii) In addition to the disclosure required under Title 15, Subtitle 6 of the State Government Article, a mem-

ber of the Board shall disclose to the Board and to the public any relationship not addressed in the required financial

disclosure that the member has with a carrier, insurance producer, third-party administrator, managed care organization,

or other entity in an industry involved in matters likely to come before the Board.

(2) On all matters that come before the Board, the member shall:

(i) adhere strictly to the conflict of interest provisions under Title 15, Subtitle 5 of the State Government Ar-

ticle relating to restrictions on participation, employment, and financial interests; and

(ii) provide full disclosure to the Board and the public on:

1. any matter that gives rise to a potential conflict of interest; and

2. the manner in which the member will comply with the provisions of Title 15, Subtitle 5 of the State

Government Article to avoid any conflict of interest or appearance of a conflict of interest.

HISTORY: 2011, chs. 1, 2.

NOTES: EDITOR'S NOTE. --Section 4, chs. 1 and 2, Acts 2011, provides that "with respect to the Governor's ap-

pointment to the Board of Trustees of the Maryland Health Benefit Exchange established under Section 1 of this Act, of

those members representing the interests of employers and consumers, it is the intent of the General Assembly that the

Governor seek to appoint, where practicable and particularly in the initial appointments, members whose particular

knowledge and understanding include the interests of minority-owned employers and individual consumers who come

from lower-income and minority communities, have chronic diseases or disabilities, or belong to other hard-to-reach or

special populations."

Section 7, chs. 1 and 2, Acts 2011, provides that "the terms of the initial appointed members of the Board of Trustees

of the Maryland Health Benefit Exchange, established under Section 1 of this Act, shall expire as follows:

"(1) two members in 2013;

"(2) two members in 2014; and

"(3) two members in 2015."

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§ 31-106. Powers of Board.

(a) In general. -- Subject to any limitations under this title or other applicable law, the Board shall have all powers

necessary or convenient to carry out the functions authorized by the Affordable Care Act and consistent with the pur-

poses of the Exchange.

(b) Enumeration of powers not to restrict exercise of other lawful powers. -- The enumeration of specific powers in

this title is not intended to restrict the Board's power to take any lawful action that the Board determines is necessary or

convenient to carry out the functions authorized by the Affordable Care Act and consistent with the purposes of the Ex-

change.

(c) Specific powers. --

(1) In addition to the powers set forth elsewhere in this title, the Board may:

(i) adopt and alter an official seal;

(ii) sue, be sued, plead, and be impleaded;

(iii) adopt bylaws, rules, and policies;

(iv) subject to paragraph (2) of this subsection, adopt regulations to carry out this title:

1. in accordance with Title 10, Subtitle 1 of the State Government Article; and

2. without conflicting with or preventing application of regulations adopted by the Secretary under Title 1,

Subtitle D of the Affordable Care Act;

(v) maintain an office at the place designated by the Board;

(vi) enter into any agreements or contracts and execute the instruments necessary or convenient to manage its

own affairs and carry out the purposes of this title;

(vii) apply for and receive grants, contracts, or other public or private funding; and

(viii) do all things necessary or convenient to carry out the powers granted by this title.


(2) Unless waived by the chairs of the committees, at least 30 days before submitting any proposed regulation to

the Maryland Register for publication, the Board shall submit the proposed regulation to the Senate Finance Committee

and the House Health and Government Operations Committee.

(d) Power to contract with eligible entities. --

(1) To carry out the purposes of this title or perform any of its functions under this title, the Board may contract

or enter into memoranda of understanding with eligible entities, including:

(i) the Maryland Medical Assistance Program;

(ii) the family investment unit of the Department of Human Resources;

(iii) insurance producers and third party administrators registered in the State; and

(iv) any other entities that have experience in individual and small group public and private health insurance

plans or facilitating enrollment in those plans.

(2) The operations of the Exchange are subject to the provisions of this title whether the operations are per-

formed directly by the Exchange or through an entity under a contract with the Exchange.

(3) The Board shall ensure that any entity under a contract with the Exchange complies with the provisions of

this title when performing services that are subject to this title on behalf of the Exchange.

(e) Information-sharing agreements with federal and state agencies. --

(1) The Board may enter into information-sharing agreements with federal and state agencies, and other state

health insurance exchanges, to carry out the provisions of this title.

(2) An information-sharing agreement entered into under paragraph (1) of this subsection shall:

(i) include adequate protections with respect to the confidentiality of information; and

(ii) comply with all State and federal laws and regulations.

(f) Procurement policies and procedures. --

(1) The Board, in accordance with Title 12, Subtitle 4 of the State Finance and Procurement Article, shall adopt

written policies and procedures governing all procurements of the Exchange.

(2) To the fullest extent practicable, and in a manner that does not impair the Exchange's ability to carry out the

purposes of this title, the Board's procurement policies and procedures shall establish an open and transparent process

that:

(i) promotes public confidence in the procurements of the Exchange;

(ii) ensures fair and equitable treatment of all persons and entities that participate in the procurement system

of the Exchange;

(iii) fosters appropriate competition and provides safeguards for maintaining a procurement system of quality

and integrity;

(iv) promotes increased economic efficiency and responsibility on the part of the Exchange;

(v) achieves the maximum benefit from the purchasing power of the Exchange; and

(vi) provides clarity and simplicity in the rules and procedures governing the procurements of the Exchange.

(g) Consultation with ad hoc and standing advisory committees; composition of ad hoc and standing advisory

committees. --

(1) To carry out the purposes of this title, the Board shall:

(i) create and consult with ad hoc advisory committees; and

(ii) appoint to the ad hoc advisory committees representatives of:

1. insurers or health maintenance organizations offering health benefit plans in the State;


2. nonprofit health service plans offering health benefit plans in the State;

3. licensed health insurance producers and advisers;

4. third-party administrators;

5. health care providers, including:

A. hospitals;

B. long-term care facilities;

C. mental health providers;

D. developmental disability providers;

E. substance abuse treatment providers;

F. Federally Qualified Health Centers;

G. physicians;

H. nurses;

I. experts in services and care coordination for criminal and juvenile justice populations;

J. licensed hospice providers; and

K. other health care professionals;

6. managed care organizations;

7. employers, including large, small, and minority-owned employers;

8. public employee unions, including public employee union members who are caseworkers in local de-

partments of social services with direct knowledge of information technology systems used for Medicaid eligibility de-

termination;

9. consumers, including individuals who:

A. reside in lower-income and racial or ethnic minority communities;

B. have chronic diseases or disabilities; or

C. belong to other hard-to-reach or special populations;

10. individuals with knowledge and expertise in advocacy for consumers described in item 9 of this item;

11. public health researchers and other academic experts with knowledge and background relevant to the

functions and goals of the Exchange, including knowledge of the health needs and health disparities among the State's

diverse communities; and

12. any other stakeholders identified by the Exchange as having knowledge or representing interests rele-

vant to the functions and duties of the Exchange.

(2) In addition to the ad hoc advisory committees created under paragraph (1) of this subsection, the Board, on

or before March 15, 2014, shall create a standing advisory committee that:

(i) consists of members who, to the extent practicable:

1. reflect the gender, racial, ethnic, and geographic diversity of the State;

2. constitute a diverse cross-section of stakeholders broadly representative of the individuals and entities

described in paragraph (1)(ii) of this subsection; and

3. are appointed by the Board for a term of no more than 3 years in a manner that provides continuity and

rotation;

(ii) has a liaison to the Board who is a member of the Board and is appointed by the chair of the Board; and


(iii) is charged with the responsibility of addressing the broad range of policy issues:

1. on which the Board may seek its input and advice; and

2. that may be proposed by the liaison to the Board, in consultation with the standing advisory committee

chair and members.

HISTORY: 2011, chs. 1, 2; 2012, ch. 152, § 3; 2013, ch. 159, § 2.

NOTES: EFFECT OF AMENDMENTS. --Section 3, ch. 152, Acts 2012, effective June 1, 2012, added the (c)(1) des-

ignation, added (c)(2) and (g)(2), and redesignated accordingly; in the introductory language of (c)(1)(iv) added "subject

to paragraph (2) of this subsection"; and made related changes.

Section 2, ch. 159, Acts 2013, effective June 1, 2013, added the (g)(1) designation, redesignated accordingly and

rewrote (g)(2); in (g)(1)(i) and in the introductory language of (g)(1)(ii) added "ad hoc"; and made a stylistic change.

EDITOR'S NOTE. --Section 5, chs. 1 and 2, Acts 2011, provides that "the Maryland Health Benefit Exchange estab-

lished under Section 1 of this Act:

"(1) in consultation with the advisory committees established under § 31-106(g) of the Insurance Article, as enacted

by Section 1 of this Act, and with other stakeholders, shall study and make recommendations regarding:

"(i) the feasibility and desirability of the Exchange engaging in:

"1. selective contracting, either through competitive bidding or a negotiation process similar to that used by large

employers, to reduce health care costs and improve quality of care by certifying only those health benefit plans that

meet certain requirements such as promoting patient-centered medical homes, adopting electronic health records, meet-

ing minimum outcome standards, implementing payment reforms to reduce medical errors and preventable hospitaliza-

tions, reducing disparities, ensuring adequate reimbursements, enrolling low-risk members and underserved popula-

tions, managing chronic conditions and promoting healthy consumer lifestyles, value-based insurance design, and ad-

hering to transparency guidelines and uniform price and quality reporting; and

"2. multistate or regional contracting;

"(ii) the rules under which health benefit plans should be offered inside and outside the Exchange in order to mitigate

adverse selection and encourage enrollment in the Exchange, including:

"1. whether any benefits should be required of qualified health plans beyond those mandated by the federal Patient

Protection and Affordable Care Act (Affordable Care Act), and whether any such additional benefits should be required

of health benefit plans offered outside the Exchange;

"2. whether carriers offering health benefit plans outside the Exchange should be required to offer either all the same

health benefit plans inside the Exchange, or alternatively, at least one health benefit plan inside the Exchange; and

"3. which provisions applicable to qualified health plans should be made applicable to qualified dental plans;

"(iii) the design and operation of the Exchange's Navigator Program and any other appropriate consumer assistance

mechanisms, including:

"1. the infrastructure of the existing private sector health insurance distribution system in the State to determine

whether private sector resources may be available and suitable for use by the Exchange;

"2. the effect the Exchange may have on private sector employment in the health insurance distribution system in the

State;

"3. what functions, in addition to those required by the Affordable Care Act, should be performed by Navigators;

"4. what training and expertise should be required of Navigators, and whether different markets and populations re-

quire Navigators with different qualifications;

"5. how Navigators should be retained and compensated, and how disparities between Navigator compensation and

the compensation of insurance producers outside the Exchange can be minimized or avoided;

"6. how to ensure that Navigators provide information in a manner culturally, linguistically, and otherwise appropri-

ate to the needs of the diverse populations served by the Exchange, and that Navigators have the capacity to meet these

needs; and

"7. what other means of consumer assistance may be appropriate and feasible, and how they should be designed and

implemented;

"(iv) the design and function of the SHOP Exchange beyond the requirements of the Affordable Care Act, to promote

quality, affordability, and portability, including:

"1. whether it should be a defined contribution/employee choice model or whether employers should choose the

qualified health plan to offer their employees;


"2. whether the current individual and small group markets should be merged; and

"3. whether the SHOP Exchange should be made available to employers with 50 to 100 employees prior to 2016, as

authorized by the Affordable Care Act;

"(v) how the Exchange can be self-sustaining by 2015 in compliance with the Affordable Care Act, including:

"1. a recommended plan for the budget of the Exchange;

"2. the user fees, licensing fees, or other assessments that should be imposed by the Exchange to fund its operations,

including what type of user fee cap or other methodology would be appropriate to ensure that the income of the Ex-

change comports with the expenditures of the Exchange; and

"3. a recommended plan for how to prevent fraud, waste, and abuse; and

"(vi) how the Exchange should conduct its public relations and advertising campaign, including what type of solici-

tation, if any, of individual consumers or employers, would be desirable and appropriate; and

"(2) on or before December 23, 2011, shall report its findings and recommendations, including recommendations for

further legislative or regulatory action, to the Governor and, in accordance with § 2-1246 of the State Government Arti-

cle, the General Assembly."

Section 6, chs. 1 and 2, Acts 2011, provides that "on or before December 1, 2015, the Maryland Health Benefit Ex-

change established under Section 1 of this Act, in consultation with the advisory committees established under §

31-106(g) of the Insurance Article, as enacted by Section 1 of this Act, and with other stakeholders, shall conduct a

study and report its findings and recommendations to the Governor and, in accordance with § 2-1246 of the State Gov-

ernment Article, the General Assembly, on whether the Exchange should remain an independent public body or should

become a nongovernmental, nonprofit entity."

Section 4, ch. 152, Acts 2012, provides that "on or before December 1, 2015, the Maryland Health Benefit Exchange,

in consultation with the Maryland Insurance Administration, shall conduct a study and report its findings and recom-

mendations to the Governor and, in accordance with § 2-1246 of the State Government Article, the General Assembly,

on:

"(1) (i) whether the State should develop a risk adjustment program as an alternative to the federal or Mary-

land-specific model selected under Title 31 of the Insurance Article that would provide more effective protection

against adverse risk selection that could threaten the viability of the Maryland Health Benefit Exchange and the afford-

ability of its plan offerings; and

"(ii) if so, how the alternative risk adjustment program should be designed and when it should be implemented;

"(2) whether strategies should be implemented to mitigate the impact of the inclusion in the individual market of

individuals enrolled in the Maryland Health Insurance Plan; and

"(3) whether the State should develop a Maryland-specific reinsurance program to ensure the affordability of pre-

miums in the individual market."

Section 6, ch. 152, Acts 2012, provides that "on or before December 1, 2015, the Maryland Health Benefit Exchange,

in consultation with its advisory committees established under § 31-106(c)(6) of the Insurance Article, and with other


with § 2-1246 of the State Government Article, the General Assembly, on whether the Exchange should remain an in-

dependent public body or should become a nongovernmental, nonprofit entity."

Section 7, ch. 152, Acts 2012, provides that "or before December 1, 2016, the Maryland Health Benefit Exchange, in

consultation with its advisory committees established under § 31-106(c)(6) of the Insurance Article, and with other


with § 2-1246 of the State Government Article, the General Assembly, on whether to continue to maintain separate

small group and individual markets or to merge the two markets."

6 of 6 DOCUMENTS






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§ 31-108. Functions and operations of Exchange.

(a) In general. -- On or before January 1, 2014, the functions and operations of the Exchange shall include at a min-

imum all functions required by § 1311(d)(4) of the Affordable Care Act.

(b) Specified functions. -- On or before January 1, 2014, in compliance with § 1311(d)(4) of the Affordable Care

Act, the Exchange shall:

(1) make qualified plans available to qualified individuals and qualified employers;

(2) allow a carrier to offer a qualified dental plan through the Exchange that provides limited scope dental bene-

fits that meet the requirements of § 9832(c)(2)(a) of the Internal Revenue Code, either separately, in conjunction with,

or as an endorsement to a qualified health plan, provided that the qualified health plan provides pediatric dental benefits

that meet the requirements of § 1302(b)(1)(j) of the Affordable Care Act;

(3) allow a carrier to offer a qualified vision plan through the Exchange that provides limited scope vision bene-

fits that meet the requirements of § 9832(c)(2)(a) of the Internal Revenue Code, either separately, in conjunction with,

or as an endorsement to a qualified health plan, provided that the qualified health plan provides pediatric vision benefits

that meet the requirements of § 1302(b)(1)(j) of the Affordable Care Act;

(4) consistent with the guidelines developed by the Secretary under § 1311(c) of the Affordable Care Act, im-

plement procedures for the certification, recertification, and decertification of:

(i) health benefit plans as qualified health plans;

(ii) dental plans as qualified dental plans; and

(iii) vision plans as qualified vision plans;

(5) provide for the operation of a toll-free telephone hotline to respond to requests for assistance;

(6) provide for initial, annual, and special enrollment periods, in accordance with guidelines adopted by the Sec-

retary under § 1311(c)(6) of the Affordable Care Act;

(7) maintain a Web site through which enrollees and prospective enrollees of qualified plans may obtain stand-

ardized comparative information on qualified health plans, qualified dental plans, and qualified vision plans;

(8) with respect to each qualified plan offered through the Exchange:


(i) assign a rating to each qualified plan in accordance with the criteria developed by the Secretary under §

1311(c)(3) of the Affordable Care Act and any additional criteria that may be applicable under the laws of the State and

regulations adopted by the Exchange under this title; and

(ii) determine each qualified health plan's coverage level in accordance with regulations adopted by the Sec-

retary under § 1302(d)(2)(a) of the Affordable Care Act and any additional regulations adopted by the Exchange under

this title;

(9) (i) present qualified plan options offered by the Exchange in a standardized format, including the use of the

uniform outline of coverage established under § 2715 of the federal Public Health Service Act; and

(ii) to the extent necessary, modify the standardized format to accommodate differences in qualified health

plan, qualified dental plan, and qualified vision plan options;

(10) in accordance with § 1413 of the Affordable Care Act, provide information and make determinations re-

garding eligibility for the following programs:

(i) the Maryland Medical Assistance Program under Title XIX of the Social Security Act;

(ii) the Maryland Children's Health Program under Title XXI of the Social Security Act; and

(iii) any applicable State or local public health insurance program;

(11) facilitate the enrollment of any individual who the Exchange determines is eligible for a program described

in item (10) of this subsection;

(12) establish and make available by electronic means a calculator to determine the actual cost of coverage of a

qualified plan offered by the Exchange after application of any premium tax credit under § 36b of the Internal Revenue

Code and any cost-sharing reduction under § 1402 of the Affordable Care Act;

(13) in accordance with this title, establish a SHOP Exchange through which qualified employers may access

coverage for their employees at specified coverage levels and meet standards for the federal qualified employer tax

credit;

(14) implement a certification process for individuals exempt from the individual responsibility requirement and

penalty under § 5000a of the Internal Revenue Code on the grounds that:

(i) no affordable qualified health plan that covers the individual is available through the Exchange or the in-

dividual's employer; or

(ii) the individual meets other requirements under the Affordable Care Act that make the individual eligible

for the exemption;

(15) implement a process for transfer to the United States Secretary of the Treasury the name and taxpayer iden-

tification number of each individual who:

(i) is certified as exempt from the individual responsibility requirement;

(ii) is employed but determined eligible for the premium tax credit on the grounds that:

1. the individual's employer does not provide minimum essential coverage; or

2. the employer's coverage is determined to be unaffordable for the individual or does not provide the req-

uisite minimum actuarial value;

(iii) notifies the Exchange under § 1411(b)(4) of the Affordable Care Act that the individual has changed em-

ployers; or

(iv) ceases coverage under a qualified health plan during the plan year, together with the date coverage

ceased;

(16) provide notice to employers of employees who cease coverage under a qualified health plan during a plan

year, together with the date coverage ceased;

(17) conduct processes required by the Secretary and the United States Secretary of the Treasury to determine

eligibility for premium tax credits, reduced cost-sharing, and individual responsibility requirement exemptions;


(18) establish a Navigator Program in accordance with § 1311(i) of the Affordable Care Act and this title;

(19) carry out a plan to provide appropriate assistance for consumers seeking to purchase products through the

Exchange, including the implementation of:

(i) a navigator program for the SHOP Exchange and a navigator program for the Individual Exchange; and

(ii) the toll-free hotline required under item (5) of this subsection; and

(20) carry out a public relations and advertising campaign to promote the Exchange.

(c) Compliance with federal law. --

(1) In carrying out the functions under subsections (a) and (b) of this section, the Exchange shall comply with §

508 of the federal Rehabilitation Act of 1973 and any regulations adopted under § 508 of the Act.

(2) The obligation for the Exchange to comply with § 508 of the federal Rehabilitation Act of 1973 does not af-

fect any other requirements relating to accessibility for persons with disabilities to which the Exchange may be subject

under the federal Americans with Disabilities Act of 1990.

(d) Penalties for enrollment in other coverage prohibited. -- If an individual enrolls in another type of minimum es-

sential coverage, neither the Exchange nor a carrier offering qualified health plans through the Exchange may charge

the individual a fee or penalty for termination of coverage on the grounds that:

(1) the individual has become newly eligible for that coverage; or

(2) the individual's employer-sponsored coverage has become affordable under the standards of § 36b(c)(2)(c) of

the Internal Revenue Code.

(e) Consultation with and recommendations from advisory committees. -- The Exchange, through the advisory

committees established under § 31-106(g) of this title or through other means, shall consult with and consider the rec-

ommendations of the stakeholders represented on the advisory committees in the exercise of its duties under this title.

(f) Health, dental, and vision plans must be qualified. -- The Exchange may not make available:

(1) any health benefit plan that is not a qualified health plan;

(2) any dental plan that is not a qualified dental plan; or

(3) any vision plan that is not a qualified vision plan.

HISTORY: 2011, chs. 1, 2; 2012, ch. 152, § 3; 2013, ch. 159, § 2.

NOTES: EFFECT OF AMENDMENTS. --Section 3, ch. 152, Acts 2012, effective June 1, 2012, deleted "health" after

"make qualified" in (b)(1); in (b)(2) added "or as an endorsement to"; added (b)(3) and redesignated accordingly; re-

wrote (b)(4); in (b)(7) deleted "health" after "enrollees of qualified" and added "and qualified vision plans"; in the in-

troductory language of (b)(8) and in (b)(8)(i) deleted "health" after "each qualified"; added the (b)(9)(i) designation and

added (b)(9)(ii); in (b)(9)(i) deleted "health" after "present qualified"; in (b)(11) substituted "item (10)" for "item (9)"; in

(b)(12) deleted "health plan and a qualified dental" after "of a qualified"; in (b)(13) added "in accordance with this title";

in (b)(15)(iii) substituted "or" for "and" at the end; in (b)(18) deleted "any requirements established under" before "this

title"; deleted former (b)(18); rewrote (b)(19); added (e)(3); and made related and stylistic changes.

Section 2, ch. 159, Acts 2013, effective June 1, 2013, added (c) and redesignated accordingly.

EDITOR'S NOTE. --Section 2, chs. 1 and 2, Acts 2011, provides that "with respect to the functions of the Maryland

Health Benefit Exchange established under Section 1 of this Act, and the requirements for health benefit plan certifica-

tion mandated by the federal Patient Protection and Affordable Care Act and as implemented by §§ 31-108 and 31-109

of the Insurance Article, as enacted by Section 1 of this Act, that require further guidance from the Secretary of Health

and Human Services before full implementation is possible, the Exchange may not implement those functions or impose

those requirements until the further guidance is received."


of this Act may not exercise any powers, duties, or functions under the provisions of § 31-108(b)(1), (7), (12), (17),

(19), and (20), § 31-109(a), or § 31-110 of the Insurance Article, as enacted by Section 1 of this Act, until:


"(1) the Exchange has reported its findings and recommendations, including recommendations for legislation neces-

sary or desirable to carry out its purposes and functions, to the Governor and the General Assembly, in accordance with

Section 5 of this Act; and

"(2) the Governor and the General Assembly authorize the exercise of the powers, duties, and functions through en-

actment of additional legislation in the 2012 legislative session."

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