(1) A distinct grouping may only be established by a small employer carrier on the basis that the applicable health benefit plans: Are marketed and sold through individuals and organizations that are not participating in the marketing or sale of other distinct groupings of small employers for the small employer carrier;
(2) Have been acquired from another small employer carrier as a distinct grouping of plans; or
(3) Are provided through an association with membership of not less than ten (10) small employers that has been formed for purposes other than obtaining insurance.
(4) A small employer carrier may establish no more than two (2) additional groupings under subdivision (a)(1), (a)(2) or (a)(3) on the basis of underwriting criteria that are expected to produce substantial variation in the health care costs.
(5) The commissioner may approve the establishment of additional distinct groupings upon application to the commissioner and the commissioner's determination that the action would enhance the efficiency and fairness of the small employer marketplace.