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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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The proposed changes in this rule are intended to align with the Presidents instructions in E.O. 14009 and E.O.
13985 to adopt policies to strengthen the implementation of the ACA and ensure high-quality health care coverage is accessible and affordable for every American. The Departments are of the view that the proposals outlined in this proposed rule would further support states providing consumers with comprehensive, high-quality health care coverage that will better protect consumers with pre-existing conditions and will help protect consumers from unexpected and expected medical needs. Further, the proposals outlined in this proposed rule would further the goal that consumers with pre-existing conditions, particularly racial and ethnic minorities who are 1.5 to 2.0
times more likely than whites to have major chronic diseases 118 and as such pre-existing conditions, maintain comprehensive coverage.
The Departments seek comment on these proposed policies and interpretations related to the comprehensiveness guardrail. The Departments are of the view that this proposal would have minimal impact on both states with section 1332 waivers under development and states with approved waivers. The Departments solicit comment on the impact to stakeholders.
b. Affordability 31 CFR
33.108f3ivB and 45 CFR
155.1308f3ivB
The Departments are proposing to modify the regulations at 31 CFR
33.108f3ivB and 45 CFR
155.1308f3ivB to remove the affordability guardrail interpretations as codified in part 1 of the 2022 Payment Notice final rule. In addition, the Departments are proposing, through preamble, policies and interpretations relating to the requirements for the affordability coverage guardrail that are similar to the policies and interpretations outlined in the 2015
Guidance. Specifically, the Departments are proposing to modify the regulations at 31 CFR 33.108f3ivB and 45 CFR
155.1308f3ivB such that to satisfy the affordability requirement, the Departments, as applicable, must determine that the section 1332 waiver would provide coverage that is at least as affordable overall for residents of the state as coverage absent the waiver. The Departments proposed policies and 118 https www.ncbi.nlm.nih.gov/pmc/articles/
PMC3794652 text=more%20chronic %20diseases.-,Racial%2Fethnic%20minorities%20
are%201.5%20to%202.0%20times%20more%20
likely,seem%20to%20be%20getting%20worse.

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interpretations related to the affordability guardrail are as follows:
To meet the affordability guardrail, health care coverage under the section 1332 waiver would be required to be forecast to be as affordable overall for state residents as coverage absent the waiver.
Affordability refers to state residents ability to pay for health care expenses relative to their incomes and would generally be measured by comparing each individuals expected out-ofpocket spending for health coverage and services to their incomes. Out-of-pocket spending for health care includes premiums or equivalent costs for enrolling in coverage, and spending such as deductibles, co-pays, and coinsurance, associated with the coverage or direct payments for health care.
Spending on health care services that are not covered by a health plan or health coverage could also be taken into account if they are affected by the section 1332 waiver proposal. The impact on all state residents would be required to be considered, regardless of the type of coverage they would have had absent the section 1332 waiver.
Under the proposed policies and interpretation in this rule, this condition generally must be forecast to be met in each year that the section 1332 waiver would be in effect.
Section 1332 waivers would be evaluated not only based on how they affect affordability on average, but also on how they affect the number of individuals with large health care spending burdens relative to their incomes. Increasing the number of state residents with large health care spending burdens would cause a section 1332 waiver proposal to fail the affordability requirement, even if the waiver would increase affordability for many other state residents. Given that eligibility for comprehensive coverage among the uninsured varies across racial and ethnic groups, the Departments assessment of whether the proposal meets the affordability requirement would also take into account the effects across different groups of state residents, and, in particular, effects on vulnerable or underserved residents, including lowincome individuals, older adults, those with serious health issues or who have a greater risk of developing serious health issues, and people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.119 A section 1332
119 These groups include individuals who belong to underserved communities that have been denied
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waiver would be highly unlikely to be approved by the Secretaries under the proposed policies and interpretations set forth in this rule if it reduces affordability for these vulnerable or underserved groups, even if the waiver would maintain affordability in the aggregate. In addition, a section 1332
waiver would fail to meet the affordability guardrail if it would reduce the number of individuals with coverage that provides a minimal level of protection against excessive cost sharing. In particular, section 1332
waivers that reduce the number of people with insurance coverage that provides both an actuarial value equal to or greater than 60 percent and an outof-pocket maximum that complies with section 1302c1 of the ACA, would fail to meet this guardrail under the proposed policies and interpretations set forth in this rule. Section 1332
waivers that reduce the number of people with coverage that meets the affordability requirements set forth in sections 1916 and 1916A of the Act, as codified in 42 CFR part 447, subpart A, while holding the states Medicaid policies constant would also fail under the affordability guardrail.
Consistent with 31 CFR 33.108f and 45 CFR 155.1308f, the section 1332
waiver application must include analysis and supporting data that establishes that the waiver satisfies this requirement. This includes information on estimated individual out-of-pocket costs premium and out-of-pocket expenses for deductibles, co-payments, co-insurance, co-payments and plan differences by income, health expenses, health insurance status, and age groups, absent the section 1332 waiver and with the waiver. The expected changes in premium contributions and other out-ofpocket costs and the combined impact of changes in these components should be identified separately. The application should also describe any changes in employer contributions to health coverage or in wages expected under the section 1332 waiver. The application should identify any types of individuals for whom affordability of coverage would be reduced by the section 1332
waiver.
such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer LGBTQ+
persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality. See https www.whitehouse.gov/briefing-room/
presidential-actions/2021/01/20/executive-orderadvancing-racial-equity-and-support-forunderserved-communities-through-the-federalgovernment/.

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