(1) An issuer offering qualified health plans as defined in 42 U.S.C. 18021, and its officials, employees, agents, and representatives must not employ marketing practices or benefit designs with respect to these plans that the commissioner determines will have the effect of discouraging the enrollment of individuals with significant health needs. An example of such a prohibited design may occur when there are multiple nonspecialty drugs for persons with a specific condition or disorder, and a health plan places a majority of the drugs in the highest cost tier of the formulary.

(2) The commissioner will determine whether an issuer's actions to comply with this section are consistent with current state law, the legislative intent underlying RCW 48.43.0128 to maintain enrollee protections of the Affordable Care Act, and the federal regulations and guidance in effect as of January 1, 2017, including those issued by the U.S. Department of Health and Human Services Office of Civil Rights.