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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
award forum requirements.143 Under 31
CFR 33.120c and 45 CFR 155.1320c, to ensure continued public input within at least six months after the implementation date, and annually thereafter, states are required to hold a public forum at which members of the public have an opportunity to provide comments on the progress of the program authorized by the section 1332
waiver and to provide a summary of this forum to the Secretary of HHS for the Departments review as part of the quarterly and annual reports required under 31 CFR 33.124 and 45 CFR
155.1324. Under 31 CFR 33.120c1
and 45 CFR 155.1320c1, states are required to publish the date, time, and location of the public forum in a prominent location on the states public website at least 30 days prior to the date of the planned public forum. In the November 2020 IFC, the Departments added 31 CFR 33.120c2 and 45 CFR
155.1320c2 to provide that the Secretaries may waive, in part, post award public notice requirements during the COVID19 PHE when certain criteria were met.
In this rulemaking, the Departments propose to modify 31 CFR 33.120c2
and 45 CFR 155.1320c2, to extend the flexibilities currently provided during the COVID19 PHE to permit the Secretaries to modify in part, certain post award public notice requirements in 31 CFR 33.120c and 45 CFR
155.1320c for approved waivers during a future emergent situation when the application of the post award public notice procedures would be contrary to the interests of consumers. Extending these flexibilities beyond the COVID19
PHE to future emergent situations is important to help states as they may face similar uncertainty as to whether they are able to comply with the otherwise applicable post award requirements in such situations. For example, the state post award procedures generally require an inperson gathering. 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 as those circumstances may also limit the ability for the state to host in-person gatherings. The Departments are not proposing any changes or soliciting further comments at this time with respect to the flexibility made available in the November 2020 IFC in response to the COVID19 PHE. States with 143 See section 1332a4iv and v. Also see 31
CFR 33.120 and 45 CFR 155.1320.

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approved section 1332 waivers will continue to have flexibility to submit requests to the Departments to modify certain post award public notice requirements during the COVID19
PHE.144
Consistent with the framework for state modification requests related to the COVID19 PHE, under this proposal, the Secretaries could similarly approve a state request to modify the post award public notice procedures, in part, when the application of the post award public notice requirements would be contrary to the interest of consumers during the future emergent situation. The Departments propose to amend the title in 31 CFR 33.120c2 and 45 CFR
155.1320c2 and to amend the text at 31 CFR 33.120c2i and 45 CFR
155.1320c2i to replace the references to the public health emergency with an emergent situation. Amendments are also proposed to the last sentence of 31 CFR
33.120c2i and 45 CFR
155.1320c2i to replace the language that limits these flexibilities to the COVID19 PHE to reflect the broader proposed applicability to emergent situations, including natural disasters;
PHEs; or other emergent situations that threaten consumers access to health insurance coverage, consumers access to health care, or human life. In addition, the Departments propose that the Secretaries could approve a states post award modification request if the state meets all of the following requirements:
The state requests a modification in the form and manner specified by the Secretaries.
The state acts in good faith, and in a diligent, timely, and prudent manner to comply with the monitoring and compliance requirements under the regulations and specific terms and conditions of the section 1332 waiver and to submit and prepare the request for a modification.
The state details in its request for a modification the reasons for the alternative post award public notice procedures it proposes to implement at the state level, including public hearings, that are designed to provide the greatest opportunity and level of meaningful public input from impacted stakeholders that is practicable given the emergent circumstances underlying the states request for a modification.
These are the same requirements that apply under the existing framework for state post award modification requests related to the COVID19 PHE currently captured in 31 CFR 33.120c2iiA
144 See
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85 FR 71142.

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through C and 45 CFR
155.1320c2iiA through C.
Under this proposal, a state may request to modify the otherwise applicable public participation requirements to host the public forum for an approved section 1332 waiver that would take place or become due during an emergent situation virtually rather than as an in person gathering.
When reviewing state modification requests, the Departments would remain focused on ensuring the public is informed about the implementation of programs authorized by section 1332
waivers and has a meaningful opportunity to comment on its implementation.
Consistent with the framework for COVID19 state modification requests, the Secretaries would evaluate a states request for a modification of certain post award public participation requirements during a future emergent situation and issue their modification determination within approximately 15 calendar days after the request is received.145 The state would be required to publish on its website any modification requests and determinations by the Departments within 15 calendar days of receipt of the determination, as well as information on the approved revised timeline for the states post award public notice procedures, as applicable.146 Since the state is already required to post materials as part of post award annual reporting requirements, such as the notice for the public forum and annual report, states would be responsible for ensuring that the public is aware of the determination to modify the public notice procedures and would be required to include this information along with the other information required under 31 CFR 33.120c1 and 45 CFR155.1320c1 for the alternative procedures in a prominent location on the states public website.
The Departments are of the view that post award public forums are critical to ensure that the public has a regular opportunity to learn about and comment on the progress of section 1332 waivers.
Based on the Departments experience during COVID19 PHE, the Departments believe it is appropriate and reasonable to propose to provide similar flexibilities and permit states to request to modify certain post award public participation requirements in future emergent situations. States that receive approval to modify, in part, these post award public notice procedures would 145 See 31 CFR 33.120c2iiD and 45 CFR
155.1320c2iiD.
146 See 31 CFR 33.120c2iiE and 45 CFR
155.1320c2iiE.

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