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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
155.1312a2, that require a State with one or more Federally-recognized tribes within its borders to conduct a separate process for meaningful consultation with the tribes as part of the State section 1332 waiver public notice and comment process. The Departments are of the view that allowing states to use the annual public forum for the dual purpose of soliciting public input on the states proposed section 1332 waiver amendment request and on the progress of its approved waiver plan would create a more efficient process for both the state and the public to provide a meaningful level of input. Furthermore, this proposal would allow a state to explain to the public how the states proposed section 1332 waiver amendment would interact with the states approved waiver plan, and thus would be beneficial to the public in understanding the impact of the states proposed waiver amendment.
In this rule, the Departments are proposing a similar federal public notice and approval process for section 1332
waiver amendment requests as is outlined for new section 1332 waiver applications in 31 CFR 33.116 and 45
CFR 155.1316. In line with these requirements, the Departments propose that following a determination that a states section 1332 waiver application request for a section 1332 waiver is complete, the Secretaries will provide for a public notice and comment period that is sufficient to ensure a meaningful level of public input and the comment period would generally be no less than 30 days. The Departments would make available through an HHS website the complete section 1332 waiver amendment request, information relating to how and where written comments may be submitted, and the timeframe during which comments will be accepted. Additionally, the Departments will make available public comments received on the section 1332
waiver amendment request during the Federal public notice and comment period. The Departments are of the view that these proposals would increase transparency of the federal review process and create a clear path for states and the Departments to determine if the information submitted is sufficient to continue review and when to start a federal public comment period on the states proposed waiver amendment. In addition, the Departments are of the view that these proposals provide the public with a meaningful opportunity to provide input on a section 1332 waiver request in line with the intent of the statute.

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c. Waiver Amendment Content The Departments propose that a state that wants to pursue a section 1332
waiver amendment request must furnish information and analysis regarding the states proposed waiver amendment that is necessary to permit the Departments to evaluate the request. The proposed information and analysis is similar to the existing requirements for new section 1332 waiver applications.153 As such, the Departments propose that a section 1332 waiver amendment request must include the following:
1 A detailed description of the requested amendment, including the impact on the guardrails, and related changes to the section 1332 waiver program elements as applicable, including sufficient supporting documentation;
2 An explanation and evidence of the process used by the state to ensure meaningful public input;
3 Evidence of sufficient authority under state laws in order to meet the ACA section 1332b2A requirement for purposes of pursuing the section 1332 waiver amendment;
4 An updated actuarial and/or economic analysis demonstrating how the section 1332 waiver, as amended, will meet the section 1332 statutory guardrails;
5 An explanation of the estimated impact, if any, of the section 1332
waiver amendment on pass-through funding; and 6 Any further requested information and/or analysis that is determined necessary by the Departments to evaluate the section 1332 waiver amendment.
For the required updated actuarial and/or economic analysis, the Departments propose that such analysis must identify the with waiver impact of the requested amendment on the statutory guardrails. Such analysis would also be required to include a with waiver and without waiver status on both a summary and detailed level through the current approval period using data from recent experience, as well as a summary of and detailed projections of the change in the with waiver scenario. In addition, as described above, the Departments propose that the analysis submitted by the state with its section 1332 waiver amendment request must demonstrate how the states approved section 1332
waiver plan, combined with any proposed amendments, impacts the guardrails.
The Departments solicit comments on these proposals, including whether the 153 See
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31 CFR 33.108 and 45 CFR 155.1308.

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proposed framework for section 1332
waiver amendment requests should be codified in regulation.
11. Waiver Extension 31 CFR 33.132
and 45 CFR 155.1332
Section 1332e of the ACA provides that no section 1332 waiver may extend over a period of longer than 5 years unless the state requests continuation of its waiver, and such request shall be deemed granted unless the Departments, within 90 days after the date of its submission, either deny such request in writing or inform the state in writing with respect to any additional information which is needed in order to make a final determination with respect to the request. Recognizing that several of the existing section 1332 waivers were approved in 2016 and 2017 to begin in plan years 2017 and 2018, respectively, the Departments are proposing new regulations at 31 CFR
33.132 and 45 CFR 155.1332 to codify section 1332e of the ACA and are also proposing, in preamble, the proposed framework for section 1332 waiver extensions. Further, in response to previously received comments, the Departments acknowledged that information regarding section 1332
waiver amendments and renewals would be needed in the future 154 and the Departments have received several inquiries from states on these topics. As such, in this proposed rule the Departments are proposing new regulations at 31 CFR 33.132 and 45
CFR 155.1332 to permit, but not require, states to submit a section 1332 waiver extension request to continue an approved waiver plan. These proposed new regulations also provide that an extension request shall be deemed granted unless the Secretaries, within 90
days after the date of the states submission of a complete section 1332
waiver extension request, either deny such request in writing or inform the State in writing with respect to any additional information needed to make a final determination with respect to the request. This proposed rule also sets forth, in preamble, a proposed procedural framework for submission and review of extension requests for approved section 1332 waiver plans.
The Departments are of the view that this additional information will help states with approved section 1332
waiver plans better plan for and prepare for potential extensions to their waiver plans. The Departments also intend to provide information and details regarding the section 1332 waiver 154 See 77 FR 11700, https www.govinfo.gov/
content/pkg/FR-2012-02-27/pdf/2012-4395.pdf.

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