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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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Medicaid and CHIP policies constant.
For example, if a state section 1332
waiver would result in more or less Medicaid spending, this impact would be considered in the Departments assessment of the section 1332 waiver for the deficit neutrality guardrail.
Nothing in this proposed rule alters a states authority to make changes to its Medicaid and CHIP policies consistent with applicable law. In addition, this proposed rule does not alter the Secretary of HHS authority or CMS
policy regarding review and approval of section 1115 demonstrations, and states should continue to work with the Center for Medicaid and CHIP Services CMCS
on issues relating to section 1115
demonstrations or other Medicaid or CHIP authorities. A state may submit a coordinated waiver application as provided in 31 CFR 33.102 and 45 CFR
155.1302. The waiver applications included in a coordinated waiver application would each be reviewed by the applicable agency component independently according to the federal laws and regulations that apply to each waiver application.
As the Departments receive and review waiver proposals, the Departments will continue to examine the types of changes, contingent on federal approval that will be considered in reviewing section 1332 waiver applications.
2. Section 1332 Application ProceduresApplication Timing 31
CFR 33.108b and 45 CFR 155.1308b Consistent with regulations at 31 CFR
33.108b and 45 CFR 155.1308b, states are required to submit initial section 1332 waiver applications sufficiently in advance of the requested waiver effective date to allow for an appropriate implementation timeline. In this proposed rule, the Departments are not proposing any regulatory changes to 31
CFR 33.108b and 45 CFR 155.1308b, but are proposing through preamble policies related to the timing of initial section 1332 waiver application submissions that are consistent with policies outlined in the 2018 Guidance.
These proposed policies are intended to help states understand the requirements for submitting a section 1332 waiver application sufficiently in advance of the requested waiver effective date to allow for enough time for federal review and to maintain smooth operations of the Exchange in the state. In addition, these proposed policies are intended to help states allow for enough time for implementation of their section 1332
waiver plan, and for affected stakeholders, including issuers of health insurance plans that may be affected by
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the waiver plan, to take necessary actions based on the approval of the waiver plan, particularly when the waiver impacts premium rates, if approved. As discussed elsewhere in this proposed rule, some section 1332
waiver plans may require operational changes or accommodations to the federal information technology platform or its operations, and these proposed policies would help ensure the state and the Departments are able to sufficiently plan in advance of the effective waiver date. The proposed policies are as follows:
The Departments strongly encourage states interested in applying for section 1332 waivers, including coordinated waivers with section 1115
demonstrations, to engage with the Departments promptly for assistance in formulating an approach to a section 1332 waiver that meets the requirements of section 1332.
In order to help ensure timely decision-making regarding approval, states should plan to submit their initial section 1332 waiver applications with enough time to allow for public comment as required by 31 CFR 33.112, 31 CFR 33.116b, 45 CFR 155.1312, and 45 CFR 155.1316b, review by the Departments, and implementation of the section 1332 state plan as outlined in the waiver application. For example, for section 1332 waivers that impact the individual market, submission before or during the first quarter of the year prior to the year health plans affected by the section 1332 waiver would take effect would generally permit sufficient time for review and implementation of both the waiver application and affected plans, depending on the complexity of the proposal. It is important to note that the Departments cannot guarantee approval of a section 1332 waiver submission or a states request for expedited review and will continue to review applications consistent with the timeline requirements outlined in the regulations and statute.107 The Departments encourage states to work with the Departments on formulating timeframes that take into account the states legislative sessions and timing of health plan rate filings if the section 1332 waiver is projected to have any impact on premiums. If a states section 1332 waiver application includes potential operational changes or accommodations to the federal information technology platform or its operations, additional time for review and implementation of the waiver application may be needed. States 107 31 CFR 33.108 and 45 CFR 155.1308; Section 1332d1 of the ACA.

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should engage with the Departments early in the process to determine whether federal infrastructure can accommodate technical changes that support their requested flexibilities, as discussed elsewhere in this preamble.
The Departments seek comment on these proposals.
3. Section 1332 Application ProceduresStatutory Guardrails 31
CFR 33.108f3iv and 45 CFR
155.1308f3iv The Departments are proposing to modify 31 CFR 33.108f3ivAC and 45 CFR 155.1308f3ivAC to remove the interpretations of the comprehensiveness, affordability, and coverage guardrails that were codified in part 1 of the 2022 Payment Notice final rule. In addition, as detailed later in this section of this preamble, the Departments are proposing to adopt new policies and interpretations with regard to the statutory guardrails that, if finalized, would supersede and rescind those outlined in both the 2018
Guidance and part 1 of the 2022
Payment Notice final rule. These proposed guardrail interpretations are largely in line with those in the 2015
Guidance. The Departments are also proposing to modify 31 CFR
33.108f3iv and 45 CFR
155.1308f3iv to remove the reference, as codified under part 1 of the 2022 Payment Notice final rule, to interpretive guidance published by the Departments.
The 2018 Guidance aimed to allow states to pursue section 1332 waivers with the goals of increasing consumer choice and promoting private market competition. In particular, in the 2018
Guidance, the Secretaries explained that their interpretations of the statutory guardrails were meant to remove restrictions that could limit consumer choice by allowing states to provide access to health insurance coverage at different price points and benefits levels, including less comprehensive plans that states considered to be better suited to consumer needs. Specifically, the 2018 Guidance interpreted the comprehensiveness and affordability guardrails to be satisfied if comprehensive and affordable coverage were available to consumers, without regard to who would actually enroll in such coverage. In addition, the 2018
Guidance instructed that these two guardrails must be evaluated in conjunction. The 2018 Guidance explained that it is not enough to make available some coverage that is comprehensive but not affordable, while making available other coverage that is affordable but not comprehensive. Thus,
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