U.S. Code
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Title 42
» Chapter CHAPTER 157— QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS › Subchapter SUBCHAPTER III— AVAILABLE COVERAGE CHOICES FOR ALL AMERICANS › Part Part B— Consumer Choices and Insurance Competition Through Health Benefit Exchanges
42 U.S.C. § 18032
Consumer choice
(a) Choice(1) Qualified individualsA qualified individual may enroll in any qualified health plan available to such individual and for which such individual is eligible.
(2) Qualified employers(A) Employer may specify levelA qualified employer may provide support for coverage of employees under a qualified health plan by selecting any level of coverage under section 18022(d) of this title to be made available to employees through an Exchange.
(B) Employee may choose plans within a levelEach employee of a qualified employer that elects a level of coverage under subparagraph (A) may choose to enroll in a qualified health plan that offers coverage at that level.
(b) Payment of premiums by qualified individualsA qualified individual enrolled in any qualified health plan may pay any applicable premium owed by such individual to the health insurance issuer issuing such qualified health plan.
(c) Single risk pool(1) Individual marketA health insurance issuer shall consider all enrollees in all health plans (other than grandfathered health plans) offered by such issuer in the individual market, including those enrollees who do not enroll in such plans through the Exchange, to be members of a single risk pool.
(2) Small group marketA health insurance issuer shall consider all enrollees in all health plans (other than grandfathered health plans) offered by such issuer in the small group market, including those enrollees who do not enroll in such plans through the Exchange, to be members of a single risk pool.
(3) Merger of marketsA State may require the individual and small group insurance markets within a State to be merged if the State determines appropriate.
(4) State lawA State law requiring grandfathered health plans to be included in a pool described in paragraph (1) or (2) shall not apply.
(d) Empowering consumer choice(1) Continued operation of market outside ExchangesNothing in this title 11 See References in Text note below. shall be construed to prohibit—(A) a health insurance issuer from offering outside of an Exchange a health plan to a qualified individual or qualified employer; and(B) a qualified individual from enrolling in, or a qualified employer from selecting for its employees, a health plan offered outside of an Exchange.(2) Continued operation of State benefit requirementsNothing in this title 1 shall be construed to terminate, abridge, or limit the operation of any requirement under State law with respect to any policy or plan that is offered outside of an Exchange to offer benefits.
(3) Voluntary nature of an Exchange(A) Choice to enroll or not to enrollNothing in this title 1 shall be construed to restrict the choice of a qualified individual to enroll or not to enroll in a qualified health plan or to participate in an Exchange.
(B) Prohibition against compelled enrollmentNothing in this title 1 shall be construed to compel an individual to enroll in a qualified health plan or to participate in an Exchange.
(C) Individuals allowed to enroll in any planA qualified individual may enroll in any qualified health plan, except that in the case of a catastrophic plan described in section 18022(e) of this title, a qualified individual may enroll in the plan only if the individual is eligible to enroll in the plan under section 18022(e)(2) of this title.
(D) Members of Congress in the Exchange(i) RequirementNotwithstanding any other provision of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are—(I) created under this Act (or an amendment made by this Act); or(II) offered through an Exchange established under this Act (or an amendment made by this Act).(ii) DefinitionsIn this section:(I) Member of CongressThe term “Member of Congress” means any member of the House of Representatives or the Senate.
(II) Congressional staffThe term “congressional staff” means all full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.
(4) No penalty for transferring to minimum essential coverage outside ExchangeAn Exchange, or a qualified health plan offered through an Exchange, shall not impose any penalty or other fee on an individual who cancels enrollment in a plan because the individual becomes eligible for minimum essential coverage (as defined in section 5000A(f) of title 26 without regard to paragraph (1)(C) or (D) thereof) or such coverage becomes affordable (within the meaning of section 36B(c)(2)(C) of such title).
(e) Enrollment through agents or brokersThe Secretary shall establish procedures under which a State may allow agents or brokers—(1) to enroll individuals and employers in any qualified health plans in the individual or small group market as soon as the plan is offered through an Exchange in the State; and(2) to assist individuals in applying for premium tax credits and cost-sharing reductions for plans sold through an Exchange.(f) Qualified individuals and employers; access limited to citizens and lawful residents(1) Qualified individualsIn this title: 1(A) In generalThe term “qualified individual” means, with respect to an Exchange, an individual who—(i) is seeking to enroll in a qualified health plan in the individual market offered through the Exchange; and(ii) resides in the State that established the Exchange.(B) Incarcerated individuals excludedAn individual shall not be treated as a qualified individual if, at the time of enrollment, the individual is incarcerated, other than incarceration pending the disposition of charges.
(2) Qualified employerIn this title: 1(A) In generalThe term “qualified employer” means a small employer that elects to make all full-time employees of such employer eligible for 1 or more qualified health plans offered in the small group market through an Exchange that offers qualified health plans.
(B) Extension to large groups(i) In generalBeginning in 2017, each State may allow issuers of health insurance coverage in the large group market in the State to offer qualified health plans in such market through an Exchange. Nothing in this subparagraph shall be construed as requiring the issuer to offer such plans through an Exchange.
(ii) Large employers eligibleIf a State under clause (i) allows issuers to offer qualified health plans in the large group market through an Exchange, the term “qualified employer” shall include a large employer that elects to make all full-time employees of such employer eligible for 1 or more qualified health plans offered in the large group market through the Exchange.
(3) Access limited to lawful residentsIf an individual is not, or is not reasonably 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, the individual shall not be treated as a qualified individual and may not be covered under a qualified health plan in the individual market that is offered through an Exchange.
(Pub. L. 111–148, title I, § 1312, title X, § 10104(i), Mar. 23, 2010, 124 Stat. 182, 901.)Editorial NotesReferences in TextThis title, referred to in subsecs. (d)(1), (2), (3)(A), (B) and (f)(1), (2), is title I of Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 130, which enacted this chapter and enacted, amended, and transferred numerous other sections and notes in the Code. For complete classification of title I to the Code, see Tables.
The effective date of this subtitle, referred to in subsec. (d)(3)(D)(i), is the effective date of subtitle D of title I of Pub. L. 111–148, which is Mar. 23, 2010.
This Act, referred to in subsec. (d)(3)(D)(i), is Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 119, known as the Patient Protection and Affordable Care Act. For complete classification of this Act to the Code, see Short Title note set out under section 18001 of this title and Tables.
Amendments2010—Subsec. (a)(1). Pub. L. 111–148, § 10104(i)(1), inserted “and for which such individual is eligible” before period at end.
Subsec. (e). Pub. L. 111–148, § 10104(i)(2)(B), struck out concluding provisions which read as follows: “Such procedures may include the establishment of rate schedules for broker commissions paid by health benefits plans offered through an exchange.”
Subsec. (e)(1). Pub. L. 111–148, § 10104(i)(2)(A), inserted “and employers” after “enroll individuals”.
Subsec. (f)(1)(A)(ii). Pub. L. 111–148, § 10104(i)(3), struck out “(except with respect to territorial agreements under this subsection)” before period at end.
Notes of Decisions
Jacqueline Halbig v. Sylvia Mathews Burwell, 758 F.3d 390 (D.C. Cir. 2014).
· cites it 11× “” See 42 U.S.C. § 18032 . The term “‘qualified individual’ means, with respect to an Exchange, an individual who— (i) is seeking to enroll in a qualified health plan in the individual market offered through the Exchange; and (ii) resides in the State that established the…”
King v. Burwell, 135 S. Ct. 2480 (2015).
· cites it 2× “2 Million More Uninsured and 35% Higher Premiums (2015). And those effects would not be limited to individuals who purchase insurance on the Exchanges.”
Johnson v. United States Off. of Pers. Mgmt., 783 F.3d 655 (7th Cir. 2015).
· cites it 3× “See 42 U.S.C. § 18032 (d)(3)(D). Following the passage of the ACA, OPM conducted notice-and-comment rulemaking to implement this provision of the ACA, and issued the final rule, 78 Fed.”
Halbig v. Sebelius, 27 F. Supp. 3d 1 (D.D.C. 2014).
· cites it 6× “§ 18031 ],” as opposed to a phrase like “established under this Act,” see 42 U.S.C. § 18032 (d)(3)(D)(i)(II), Congress intended to refer exclusively to state-run Exchanges, as opposed to federally-facilitated Exchanges, and thus to limit the availability of the Section 36B tax…”
John Doe 1 v. Donald Trump, 984 F.3d 848 (9th Cir. 2020).
· cites it 2× “§ 36B(c)(1)(B)(ii); see also 42 U.S.C. § 18032 (f)(1)(A)(ii), (3) (providing that, to purchase any insurance in the exchanges created under the ACA, whether subsidized or unsubsidized, the alien must be “lawfully present” and a resident of the relevant State).”
David King v. Sylvia Burwell, 759 F.3d 358 (4th Cir. 2014).
“There can be no question that there is a certain sense to the plaintiffs’ position. If Congress did in fact intend to make the tax credits available to consumers on both state and federal Exchanges, it would have been easy to write in broader language, as it did in other places…”
O'Brien v. United States Dep't of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012).
“42 U.S.C. § 18032 (f)(2). 2. Arbitrary and Capricious Plaintiffs allege that the defendants arbitrarily and capriciously ignored the impact of the regulations upon secular, for-profit employers maintaining religious values.”
Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402 (W.D. Pa. 2013).
“” 42 U.S.C. § 18032 (f)(2)(A). Finally, a "small employer” is defined as "an employer who employed an average of at least 1 but not more than 100 employees on, business days during the preceding calendar year and who employs at least 1 employee on the first day of the plan year.”
King v. Sebelius, 997 F. Supp. 2d 415 (E.D. Va. 2014).
· cites it 2× “See 42 U.S.C. § 18032 (f)(l)(A)(ii). As such, Defendants aver that, under Plaintiffs’ reading of section 36B, no person in a state with a federally-facilitated Exchange could become a “qualified individual.”
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