12 2 STA T .38 83 PUBLIC LA W 11 0– 3 4 3 —O CT. 3 , 2008 ‘ ‘ (B)AP P LICAB L E PE R CE NT A G E .—Withresp e c tt oa p l a n (or co v era g e) , the applica b le percentage d escribed in this s u bparagraph shall be— ‘‘(i) 2 percent in the case o f the first plan y ear in w hich this section is applied
and ‘‘(ii) 1 percent in the case of each subse q uent plan year. ‘‘( C ) D ETER M INATI O N S B Y ACT U ARIES.—Deter m inations as to increases in actual costs under a plan (or coverage) for purposes of this section shall be made and certified by a qualified and licensed actuary who is a member in good standing of the American Academy of Actuaries. All such determinations shall be in a written report prepared by the actuary. T he report, and all underlying documenta - tion relied upon by the actuary, shall be maintained by the group health plan or health insurance issuer for a period of 6 years following the notification made under subparagraph ( E ). ‘‘(D) 6-MONT HD ETERMINATIONS.— I f a group health plan (or a health insurance issuer offering coverage in connection with a group health plan) see k sane x emption under this paragraph, determinations under subparagraph (A) shall be made after such plan (or coverage) has complied with this section for the first 6 months of the plan year involved. ‘‘(E) N OTI F ICATION.— ‘‘(i) IN GENERAL.—A group health plan (or a health insurance issuer offering coverage in connection with a group health plan) that, based upon a certification described under subparagraph (C), qualifies for an exemption under this paragraph, and elects to imple- ment the exemption, shall promptly notify the S ec- retary, the appropriate State agencies, and participants and beneficiaries in the plan of such election. ‘‘(ii) R E Q UIREMENT.—A notification to the Secretary under clause (i) shall include— ‘‘(I) a description of the number of covered lives under the plan (or coverage) involved at the time of the notification, and as applicable, at the time of any prior election of the cost-exemption under this paragraph by such plan (or coverage); ‘‘(II) for both the plan year upon which a cost exemption is sought and the year prior, a descrip- tion of the actual total costs of coverage with respect to medical and surgical benefits and mental health and substance use disorder benefits under the plan; and ‘‘(III) for both the plan year upon which a cost exemption is sought and the year prior, the actual total costs of coverage with respect to mental health and substance use disorder benefits under the plan. ‘‘(iii) CONFIDENTIALITY.—A notification to the Sec- retary under clause (i) shall be confidential. The Sec- retary shall make available, upon request and on not more than an annual basis, an anonymous itemi z ation of such notifications, that includes—
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