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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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comprehensive overall for residents of the state as coverage absent the waiver.
Comprehensiveness refers to the scope of benefits provided by the coverage and would be measured by the extent to which coverage meets the requirements for EHBs as defined in section 1302b of the ACA and offered through Exchanges established by Title I of ACA, or, as appropriate, Medicaid or CHIP standards. The impact on all state residents would be considered, regardless of the type of coverage they would have had absent the section 1332
waiver.
Comprehensiveness would be evaluated by comparing coverage under the section 1332 waiver to the states EHB benchmark for the applicable plan year, selected by the state or if the state does not select a benchmark, the default base-benchmark plan pursuant to 45
CFR 156.100, as well as to, in certain cases, the coverage provided under the states Medicaid or CHIP programs.116 A
section 1332 waiver would not satisfy the comprehensiveness requirement if the waiver decreases: 1 The number of residents with coverage that is at least as comprehensive as the benchmark in all ten EHB categories; 2 for any of the ten EHB categories, the number of residents with coverage that is at least as comprehensive as the benchmark in that category; or 3 the number of residents whose coverage includes the full set of services that would be covered under the states Medicaid or CHIP programs, holding the states Medicaid and CHIP policies constant.
That is, the section 1332 waiver could not decrease the number of individuals with coverage that satisfies EHB
requirements, the number of individuals with coverage of any particular category of EHB, or the number of individuals with coverage that includes the services 116 In April 2018, HHS provided states with substantially more options in the selection of an EHB-benchmark plan. As finalized in the 2019
Payment Notice, starting in the 2020 plan year, HHS
provided states with additional flexibility in how they select their EHB-benchmark plan. Instead of being limited to 10 options, states are now be able to choose from the 50 EHB-benchmark plans used for the 2017 plan year in other states or select specific EHB categories, such as drug coverage or hospitalization, from among the categories used for the 2017 plan year in other states. Additionally, states are able to build their own set of benefits that could potentially become their EHB-benchmark plan, subject to certain scope of benefits requirements.

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covered under the states Medicaid or CHIP programs.
Assessment of whether a section 1332
waiver proposal meets the comprehensiveness requirement would also take into account the effects across different groups of state residents, and, in particular, effects on those vulnerable and underserved residents, including low-income 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.117 A section 1332
waiver would be highly unlikely to be approved by the Secretaries under the proposed interpretation outlined in this rule if the waiver would reduce the comprehensiveness of coverage provided to these types of vulnerable or underserved groups, even if the waiver maintained comprehensiveness in the aggregate. Under the proposed 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.
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 section 1332 waiver satisfies this requirement. This includes an explanation of how the benefits offered under the section 1332 waiver differ from the benefits provided absent the waiver if the benefits differ at all and how the state determined the benefits to be as comprehensive.
As discussed previously in this section of this preamble, the policies and interpretations of the comprehensiveness guardrail outlined in the 2018 Guidance and codified in part 1 of the 2022 Payment Notice final 117 These
groups include individuals who belong to underserved communities that have been denied 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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rule, were in line with the Administrations priorities at the time to promote private market competition and increase consumer choice. Under those policies, analysis of comprehensiveness and affordability of coverage under a section 1332 waiver focused on the nature of coverage that is made available to state residents access to coverage, rather than on the coverage that residents actually purchase. The plans that could be offered to individuals under section 1332 waivers as codified in part 1 of the 2022 Payment Notice final rule could therefore allow for more individuals to enroll in medically underwritten plans that only offer limited benefits, which is inconsistent with the goal of E.O. 14009 to reduce barriers for expanding comprehensive affordable coverage.
In response to the proposal in the 2022 Payment Notice Proposed Rule, commenters raised concerns that alternative plan options which could include medically underwritten plans can terminate or deny coverage based on health status, which would tend to affect high-risk individuals.
Commenters asserted that, this possibility puts individuals with greater medical needs at risk of going without effective coverage for their health care needs. Some commenters expressed concern that the potential market effects would have a disparate impact on vulnerable populations, especially lowincome consumers and those with preexisting conditions. Additionally, these commenters expressed concern that a disparate impact on any particular group would not necessarily cause the Departments to deny a section 1332
waiver application, even though the impact on vulnerable population groups would be taken into account.
The Departments are of the view that the current interpretation of the comprehensiveness guardrail is inconsistent with the goal of E.O. 14009
to reduce barriers for expanding comprehensive affordable coverage. The Departments are also of the view that the current interpretation of the guardrail is inconsistent with the goal of E.O. 13985 to pursue a comprehensive approach to advancing equity and could create barriers to health coverage for people of color and underserved groups.

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