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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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the Exchanges,111 and the Departments are of the view that this law will continue to increase enrollment through the Exchanges as the ARPs enhanced subsidies lower the costs of coverage for millions of Americans and change the incentives to seek and maintain comprehensive health insurance coverage. In addition, increased affordability and expansion of access to comprehensive health insurance coverage will better support enrollment of historically uninsured communities especially those who have faced significant health disparitiesin such coverage, thereby improving access to health care during and beyond the COVID19 PHE. This Administration has also sought to strengthen the ACA
and increase enrollment by directing the establishment of a special enrollment period, which is open from February 15, 2021 through August 15, 2021, for Exchanges using the HealthCare.gov platform COVID special enrollment period. Over 1.2 million Americans have already signed up for coverage on HealthCare.gov during the COVID
special enrollment period.112 To promote the special enrollment period, CMS is spending approximately $100
million on outreach and education, including broadcast, radio, and digital advertising to reach the uninsured, and also launched parallel outreach efforts through stakeholders and partners to increase education and awareness across communities on the COVID
special enrollment period.113 Earlier this year, CMS made approximately $2.3
million in additional funding available to current Navigator grantees in FFEs to support the outreach, education, and enrollment efforts around the COVID
special enrollment period.114
Additionally, CMS recently announced that it is making $80 million in grant 111 2021 Marketplace Special Enrollment Period Report, June 14, 2021 https www.cms.gov/
newsroom/fact-sheets/2021-marketplace-specialenrollment-period-report-2.
112 Data reflects enrollment as of May 31, 2021:
https www.hhs.gov/about/news/2021/06/14/fourten-new-consumers-spend-10-or-less-monthhealthcaregov-coverage-following-implementationamerican-rescue-plan-tax-credits.html.
113 On January 28, 2021, CMS announced $50
million for outreach and marketing for the COVID
special enrollment period: https www.cms.gov/
newsroom/fact-sheets/2021-special-enrollmentperiod-response-covid-19-emergency. On April 1, 2021 HHS announced an additional $50 million to further bolster the COVID special enrollment period campaign and promote the lower premiums under the ARP: https www.cms.gov/newsroom/pressreleases/hhs-secretary-becerra-announces-reducedcosts-and-expanded-access-available-marketplacehealth.
114 https www.cms.gov/newsroom/pressreleases/cms-announces-additional-navigatorfunding-support-marketplace-special-enrollmentperiod.

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funding available to the FFE Navigator program for the 2022 plan year through the 2021 Navigator Notice of Funding Opportunity.115 This represents an eight-fold increase in funding from the previous year. Taken together, these policies, including the increased subsidies available under the ARP, the COVID special enrollment period, and the increased federal investment in the FFE Navigator program, have already led to, and are expected to continue to lead to, increased enrollment through the Exchanges.
The Departments are of the view that rescinding the 2018 Guidance, repealing the previous codification of its guardrail interpretations in part 1 of the 2022
Payment Notice final rule, and proposing new policies and interpretations aligns with the Administrations goals to strengthen the ACA and increase enrollment in comprehensive, affordable health coverage among the remaining underinsured and uninsured. The Departments are also of the view that during a pandemic, as Americans continue to battle COVID19 and millions of Americans are facing uncertainty and experiencing new health problems, it is even more critical that Americans have meaningful access to high-quality, comprehensive and affordable health coverage options.
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. This proposal is in line with the Departments efforts to provide supplementary information about the requirements that must be met for the approval of a section 1332 waiver and the Secretaries application review procedures. Because the Departments are of the view that 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, that those interpretations do not represent the best fulfillment of congressional intent behind the statutory guardrails, that they are inconsistent with the policy intentions of E.O. 14009 and E.O. 13985, and that it is appropriate to address concerns raised by commenters on the 2018 Guidance, the Departments 115 https www.cms.gov/newsroom/pressreleases/cms-announces-80-million-fundingopportunity-available-navigators-states-federallyfacilitated-0.

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propose to remove the reference to the 2018 Guidance.
Under this proposal the Departments would rely upon the statute and regulations, as well as the Departments interpretive policy statements as outlined in the applicable notice and comment rulemaking, in reviewing section 1332 waiver applications.
The Departments seek comment on these proposals. The Departments also solicit comment on whether there are policies that meet the statutory guardrails of section 1332 waivers that the Departments could consider that would encourage states to find innovative ways to use section 1332
waivers to focus on equity and expand access to comprehensive coverage for their residents. In addition, the Departments considered whether any affected parties could be impacted by the proposed changes in policy interpretations outlined in this rule. The Departments are of the view that both states with approved section 1332
waivers and states that are considering section 1332 waivers would be minimally impacted by these proposed changes in policy. The Departments solicit comment on the impact to stakeholders.
a. Comprehensive Coverage 31 CFR
33.108f3ivA and 45 CFR
155.1308f3ivA
The Departments are proposing to modify the regulations at 31 CFR
33.108f3ivA and 45 CFR
155.1308f3ivA to remove the comprehensiveness guardrail interpretations as adopted 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 comprehensive 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
33.108f3ivA and 45 CFR
155.1308f3ivA such that to satisfy the comprehensive coverage requirement, the Departments, as applicable, must determine that the section 1332 waiver will provide coverage that is at least as comprehensive overall for residents of the state as coverage absent the waiver.
The Departments proposed policies and interpretations related to the comprehensiveness guardrail are as follows:
To meet the comprehensiveness guardrail, health care coverage under a section 1332 waiver would be required to be forecast to be at least as
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