Je veux savoir à propos de…

35180

Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
khammond on DSKJM1Z7X2PROD with PROPOSALS2

IV. Provisions of the Proposed Rule for Section 1332 WaiversDepartment of Health and Human Services and Department of the Treasury A. 31 CFR Part 33 and 45 CFR Part 155Section 1332 Waivers Section 1332 of the ACA permits states to apply for a section 1332 waiver to pursue innovative strategies for providing their residents with access to higher value, more affordable health coverage.
Under section 1332, the Secretary of HHS and the Secretary of the Treasury collectively, the Secretaries may exercise their discretion to approve a request for a section 1332 waiver only if the Secretaries determine that the proposal for the section 1332 waiver meets the following four requirements, referred to as the statutory guardrails:
1 The proposal will provide coverage that is at least as comprehensive as coverage defined in section 1302b of the ACA and offered through Exchanges established under title I of the ACA, as certified by the Office of the Actuary of CMS, based on sufficient data from the state and from comparable states about their experience with programs created by the ACA and the provisions of the ACA that would be waived; 2 the proposal will provide coverage and costsharing protections against excessive out-of-pocket spending that are at least as affordable for the states residents as would be provided under title I of the ACA; 3 the proposal will provide coverage to at least a comparable number of the states residents as would be provided under title I of the ACA;
and 4 the proposal will not increase the federal deficit. The Secretaries retain their discretionary authority under section 1332 to deny waivers when appropriate given consideration of the application as a whole, even if an application meets the four statutory guardrails.
The Departments are also responsible under section 1332 for monitoring an approved section 1332 waivers compliance with the statutory guardrails and for conducting evaluations to determine the impact of the section 1332 waiver. Specifically, section 1332
requires that the Secretaries provide for and conduct periodic evaluations of approved section 1332 waivers.94 The Secretaries must also provide for a process under which states with approved section 1332 waivers must submit periodic reports concerning the implementation of the states waiver program.95
94 See 95 See
section 1332a4Bv of the ACA.
section 1332a4Biv of the ACA.

VerDate Sep<11>2014

19:24 Jun 30, 2021

Jkt 253001

In October 2018, the Departments issued the 2018 Guidance,96 which provided additional guidance for states that wish to submit section 1332 waiver proposals regarding the Secretaries application review procedures, passthrough funding determinations, certain analytical requirements, and operational considerations.97 The 2018 Guidance also included information regarding how the Departments will apply and interpret the section 1332 statutory guardrails when evaluating waiver applications. Furthermore, in part 1 of the 2022 Payment Notice final rule,98
the Departments finalized the codification of many of the major policies and interpretations outlined in the 2018 Guidance into the text of relevant section 1332 implementing regulations.
On January 28, 2021, President Biden issued E.O. 14009 directing the Secretaries and the heads of all other executive departments and agencies with authorities and responsibilities related to Medicaid and the ACA to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions to determine whether such agency actions are inconsistent with the policy set forth in section 1 of E.O. 14009.99 As part of this review, E.O. 14009 directed agencies to look at demonstrations and waivers, as well as demonstration and waiver policies that may reduce coverage under or otherwise undermine Medicaid or the ACA. As such, the Departments have reviewed both the 2018 Guidance and the policies implemented in part 1 of the 2022
Payment Notice final rule on section 1332 waivers to determine whether they are inconsistent with the policy intention of E.O. 14009 to protect and strengthen Medicaid and the ACA and to make high-quality health care accessible and affordable for every American.
In addition, on January 20, 2021, President Biden issued the Executive Order, On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government E.O. 13985,100 directing that as a policy matter the federal 96 83

FR 53575 Oct. 24, 2018.
2018 Guidance superseded guidance issued by the Departments in December 2015, which similarly provided information regarding the Secretaries application review procedures, passthrough funding determinations, certain analytical requirements, operational considerations, and interpretations of the statutory guardrails. See 80 FR
78131, available at https www.govinfo.gov/
content/pkg/FR-2015-12-16/pdf/2015-31563.pdf.
98 See 86 FR 6138.
99 86 FR 7793 Feb. 2, 2021.
100 86 FR 7009 Jan. 25, 2021.
97 The
PO 00000

Frm 00026

Fmt 4701

Sfmt 4702

government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. As such, the Departments have also reviewed the 2018 Guidance and the policies implemented in part 1 of the 2022
Payment Notice final rule on section 1332 waivers to assess whether, and to what extent, these policies may perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups.
Upon review, the Departments have determined that the 2018 Guidance and the policies implemented in part 1 of the 2022 Payment Notice final rule on section 1332 waivers are generally inconsistent with the policy intentions of E.O. 14009 and E.O. 13985. As explained in part 1 of the 2022 Payment Notice final rule and later in this proposed rule, the majority of commenters on both the 2018 Guidance and the 2022 Payment Notice Proposed Rule noted that both the 2018 Guidance and the incorporation of its guardrail interpretations into regulations could result in the Departments approving section 1332 waivers that would result in fewer residents in those states enrolling in comprehensive and affordable coverage, and that those interpretations do not represent the best fulfillment of congressional intent behind the statutory guardrails. After further consideration of these comments as part of the Departments reviews under E.O. 14009 and E.O. 13985, the Departments propose in this rule to modify 31 CFR 33.108f3ivAC and 45 CFR 155.1308f3ivAC to generally remove the language incorporating the interpretation of the statutory guardrails first set forth in the 2018 Guidance into the text of relevant section 1332 regulations that were finalized in part 1 of the 2022 Payment Notice final rule. In addition, the Departments propose new interpretations and proposed amendments to regulations to provide supplementary information about the requirements that must be met for the approval of a section 1332 waiver, the Secretaries application review procedures, certain analytical requirements, operational considerations, the calculation of passthrough funding, and amendments and extensions of approved waiver plans.
These new proposed policies and interpretations, if finalized, would supersede those outlined in the 2018
Guidance and, where applicable, those
E:FRFM01JYP2.SGM

01JYP2