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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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codified in part 1 of the 2022 Payment Notice final rule could permit section 1332 waivers that do not result in a comparable number of residents overall being enrolled in coverage that is at least as affordable and as comprehensive as they would have enrolled in without the waiver. As discussed in more detail later in this section, the Departments proposed changes are intended to align with the Presidents instruction in E.O. 14009 to adopt policies to strengthen the implementation of the ACA and remove any barriers that those policies may create for expanding coverage, lowering costs, and making high-quality health care accessible for every American.
Furthermore, in line with E.O. 14009, this Administration is focused on ensuring high-quality health care is accessible and affordable for every American. As such, the Departments are of the view that the comprehensiveness and affordability guardrails should focus on the types of coverage residents actually purchase, rather than the types of coverage residents have access to.
Upon further consideration of these issues, the Departments have determined that the guardrail interpretations codified in part 1 of the 2022 Payment Notice final rule are inconsistent with the Departments goal of ensuring individuals are enrolled in affordable, comprehensive coverage and not just that there is generalized access to such coverage. The plans that could be offered to individuals under section 1332 waivers applying the interpretations codified in the part 1 of the 2022 Payment Notice final rule could allow state section 1332 waivers that would result in more individuals enrolling in medically underwritten plans 109 that offer only limited benefits, 109 Health insurance companies medically underwrite policies to try to ascertain prospective enrollees health statuses when they are applying for health insurance coverage in order to determine whether to offer these individuals coverage, or at what price, and with what exclusions or limits, to offer coverage. https www.healthcare.gov/
glossary/medical-underwriting/ Since 2014, however, medical underwriting is no longer permitted in the individual or small group markets with respect to non-grandfathered health insurance coverage, due to ACA rules. Instead, all such individual and small group plans are guaranteed issue. Guaranteed issue is a requirement that health plans must permit any individual to enroll regardless of health status, age, gender, or other factors that might predict the use of health services.
Guaranteed issue does not limit how much individuals can be charged if they enroll in coverage. https www.healthcare.gov/glossary/
guaranteed-issue/. However, the ACAs community rating protections prevent health insurers from varying premiums within a geographic area based on age, gender, health status or other factors with respect to non-grandfathered health insurance coverage. https www.healthcare.gov/glossary/
community-rating/.

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charge higher out-of-pocket costs, or both, which is inconsistent with the goal of the E.O. 14009 to reduce barriers for expanding comprehensive affordable coverage. Allowing more individuals to be in medically underwritten plans could also have a disparate impact on vulnerable populations, especially people of color and those who are in poverty, those who are underserved, and those with pre-existing conditions, which is inconsistent with the goal of E.O. 13985.
Additionally, the Departments are of the view that the section 1332 waiver proposals that could be available under the guardrail interpretations in the 2018
Guidance and codified in part 1 of the 2022 Payment Notice final rule may also not be in line with E.O. 14009. For example, the Section 1332 State Relief and Empowerment Waiver Concepts Discussion Paper November 2018
Discussion Paper 110 included waiver concepts that were intended to foster discussion with states by illustrating how states might take advantage of new flexibilities provided in the 2018
Guidance. The Departments are of the view that some of these waiver concepts which rely upon the 2018 Guidance interpretation of the guardrails, are not in line with E.O. 14009 goals to protect and strengthen Medicaid and the ACA
and to make high-quality health care accessible and affordable for every American. For example, the Adjusted Plan Options section 1332 waiver concept included in the 2018
Discussion Paper would permit states to have the flexibility to provide state financial assistance for non-QHPs. A
section 1332 waiver proposal that includes this concept could potentially increase coverage in non-QHPs and potentially decrease enrollment in comprehensive coverage plans by allowing consumers to use a state subsidy towards catastrophic plans, individual market plans that are not QHPs, or plans that do not fully meet ACA requirements. In reviewing section 1332 waiver policies in light of E.O.
14009, this waiver concept is inconsistent with the goal of E.O. 14009, as it would likely result in consumers enrolling in non-QHPs and plans that do not fully meet ACA requirements, thereby increasing barriers for expanding comprehensive affordable coverage and potentially decreasing enrollment in comprehensive coverage.
Further, commenters raised concerns in response to the 2018 Guidance that expressed generalized concern that the 110 https www.cms.gov/CCIIO/Programs-andInitiatives/State-Innovation-Waivers/Downloads/
Waiver-Concepts-Guidance.PDF.

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2018 Guidance permitted alternative coverage options that can be underwritten and do not meet EHB
standards. In addition, commenters were concerned that measures taken to facilitate coverage in alternative plan options for example, allowing the use of subsidies for such coverage would result in fewer comprehensive plans on the market, and that those comprehensive plans would become less affordable. In light of the concerns raised by commenters and the E.O.s, the Departments are proposing new policies in this proposed rule that would allow states flexibility to develop waiver plans to meet their needs and expand coverage, lower costs, and increase access to high-quality health care with comprehensive benefits.
Given the current policy goals, as well as the Departments further consideration of comments received on the 2022 Payment Notice, the Departments are proposing new policies for how the Departments would evaluate whether a states section 1332
waiver plan satisfies each of the guardrails, as outlined in more detail later in this section. Overall, the Departments are proposing that the coverage to be provided and evaluated in each guardrail should be interpreted the same way in each subparagraph of Section 1332b1AC
for consistency. Thus, the Departments are proposing in 31 CFR
33.108f3ivA through C and 45
CFR 155.1308f3ivA through C to interpret provide and coverage to mean the same thing for the coverage, comprehensiveness, and affordability guardrails and that, to be approved, a waiver must be projected to provide coverage that is as comprehensive and affordable as would have been provided absent the waiver and to the same number of residents.
Similarly, given the current COVID
19 PHE, this Administration is focused on the response to the PHE and on helping increase enrollment in comprehensive, affordable health insurance coverage. The ARP made numerous changes to the ACA to expand access to health insurance coverage and lower costs. Specifically, the ARP temporarily expanded eligibility for and increased the value of APTC/PTC, enabling previously ineligible consumers to qualify for help paying for health coverage and increasing assistance to eligible individuals already enrolled in Exchange plans. These changes have already increased enrollment through
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