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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules quick and innovative ways to ensure consumers across the country have access to health care coverage in the face of unforeseen threats to that coverage. As was noted in November 2020 IFC, HHS and the Department of the Treasury are concerned that past trends that threaten the stability of the individual market risk pool may return, leading some issuers to cease offering coverage on the Exchanges in some states and counties and leading other issuers to increase their rates, leaving some geographic areas with limited or no affordable Exchange coverage options. Permitting the Secretary of HHS and the Secretary of the Treasury to modify the public notice procedures, in part, will help states seeking section 1332 waivers to address such circumstances more quickly and develop innovative ways to ensure consumers have access to affordable health care coverage. Specifically, in this proposed rule, the Departments propose to modify 31 CFR 33.118 and 45 CFR 155.1318 to broaden the Secretaries authority to modify, in part, the otherwise applicable public notice procedures to expedite a decision on a proposed section 1332 waiver request that is submitted or would otherwise become due during emergent situations, when a delay would undermine or compromise the purpose of the proposed waiver request and be contrary to the interests of consumers.
The amendments to these regulations further clarify that these proposed flexibilities would be available in future natural disasters; PHEs; and other emergent situations that threaten consumers access to health insurance coverage, consumers access to health care, or human life, rather than being limited to only the duration of the COVID19 PHE. These amendments could also allow states to better utilize section 1332 waivers in emergent situations.
The Departments also propose to modify 31 CFR 33.120c2 and 45 CFR
155.1320c2 to provide the Secretaries with similar authority to modify, in part, otherwise applicable post award public notice requirements for an approved waiver outlined in 31
CFR 33.120c and 45 CFR 155.1320c when the application of the post award public notice procedures would be contrary to the interests of consumers during a natural disaster; PHE; or other emergent situations that threaten consumers access to health insurance coverage, consumers access to health care, or human life, rather than limiting this flexibility only to the duration of the COVID19 PHE. These proposals
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expand on policies published in the November 2020 IFC that are limited to the COVID19 PHE.
a. Public Notice Procedures and Approval 31 CFR 33.118 and 45 CFR
155.1318
Section 1332a4B of the ACA
provides that the Secretaries shall issue regulations providing a process for public notice and comment at the state level, including public hearings, and a process for providing public notice and comment at the federal level after the section 1332 waiver application is received by the Secretaries, that are both sufficient to ensure a meaningful level of public input. Current regulations at 31 CFR 33.112 and 45 CFR 155.1312
specify state public notice and participation requirements for proposed section 1332 waiver requests, and 31
CFR 33.116b and 45 CFR 155.1316b specify the public notice and comment period requirements under the accompanying federal process.
As explained in the November 2020
IFC, the Departments recognize that the current section 1332 waiver regulations regarding state and federal public notice procedures and comment period requirements may impose barriers for states pursuing a proposed waiver request during an emergent situation, such as the COVID19 PHE or a future natural disaster; PHE; or other emergent situation that threatens consumers access to health insurance coverage, consumers access to health care, or human life. It is the mission of the Departments to enhance and protect the health and well-being of all Americans.
As such, the Departments are proposing to extend the existing flexibilities codified in regulations to protect public health and access to health insurance coverage and care during the COVID19
PHE to also apply in the event of a future emergent situation, such as a natural disaster; a PHE; or other emergent situations that threaten consumers access to health insurance coverage, consumers access to health care, or human life. These flexibilities have been important during the COVID
19 PHE and support efforts to prevent the spread of COVID19 by limiting the need for in-person gatherings related to section 1332 waivers during the PHE.
Extending these flexibilities beyond the COVID19 PHE to future emergent situations is important to similarly help states as they may face uncertainty as to whether their waiver request will be approved in time, given the otherwise applicable state and federal public notice procedures or public participation requirements, to expeditiously reform their health
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insurance markets and to protect consumers during a future emergent situation. Some states may not consider more robust changes because they are concerned that the current section 1332
waiver application requirements are too time-consuming or burdensome to pursue during a future emergency or other emergent situation. Therefore, the Departments are of the view that providing similar flexibility to modify certain public notice procedures and participation requirements during a future emergent situation will protect public health and health insurance markets, and will increase flexibility and reduce burdens for states seeking to use section 1332 waivers as a means of innovation for providing coverage, lowering premiums, and improving their health care markets.
Permitting the Secretaries to modify the public notice procedures, in part, when a delay would undermine or compromise the purpose of the proposed section 1332 waiver request and be contrary to the interests of consumers will help states seeking section 1332 waivers to address such circumstances more quickly to ensure consumers have access to affordable health care coverage throughout the emergent situation. As such, the Departments are of the view that, if certain safeguards are met, it is in the best interest of the public to provide states applying for section 1332 waivers with the option to request to modify public notice procedures during an emergent situation. Based on the Departments experience with the current COVID19 PHE, the Departments are of the view that it is appropriate and reasonable to propose to make similar flexibilities available in future emergent situations.
The Departments are therefore proposing to modify 31 CFR 33.118a and 45 CFR 155.1318a to provide that the Secretaries may modify, in part, the state public notice requirements specified in 31 CFR 33.112a1, b, c, and d and 45 CFR 155.1312a1, b, c, and d and the federal public notice requirements specified at 31
CFR 33.116b and 45 CFR 155.1316b to expedite a decision on a proposed section 1332 waiver request during an emergent situation, when a delay would undermine or compromise the purpose of the proposed waiver request and would be contrary to the interests of consumers. The proposed amendments to 33 CFR 33.118a and 45 CFR
155.1318a further specify that these flexibilities would be limited to emergent situations, including natural disasters; PHEs; or other emergent situations that threaten consumers
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