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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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high-quality, affordable coverage. The proposed changes in this rule are intended to align with the Presidents instruction in E.O. 14009 to adopt policies to strengthen the implementation of the ACA and ensure high-quality health care 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, highquality affordable health care that will better protect consumers with preexisting conditions and will help protect consumers from unexpected and expected medical costs.
The Departments seek comment on these proposed policies and interpretations related to the coverage 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.
d. Deficit Neutrality 31 CFR
33.108f3ivD and 45 CFR
155.1308f3ivD
The Departments are not proposing to modify the regulations at 31 CFR
33.108f3ivD and 45 CFR
155.1308f3ivD for the deficit neutrality guardrail, but are proposing, through preamble, policies and interpretations relating to the requirements for the deficit neutrality guardrail consistent with the policies outlined in the 2015 and 2018
Guidance. The Departments proposed policies and interpretations related to the deficit neutrality guardrail are as follows:
Under the deficit neutrality guardrail, the projected federal spending net of federal revenues under the section 1332
waiver is required to be equal to or lower than projected federal spending net of federal revenues in the absence of the waiver.
The estimated effect on federal revenue would be required to include all changes in income, payroll, or excise tax revenue, as well as any other forms of revenue including user fees, that would result from the proposed section 1332 waiver. Estimated effects would include, for example, changes in the amounts the federal government pays in PTC, small business tax credits, or other health coverage tax credit; changes in the amount of employer shared responsibility payments and-excise taxes on high-cost employer-sponsored plans collected by the federal government; and changes in income and payroll taxes resulting from changes in
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tax exclusions for employer-sponsored insurance and in deductions for medical expenses.
The effect on federal spending would include all changes in federal financial assistance PTC, small business tax credits, or CSRs and other direct spending, such as changes in Medicaid spending while holding the states Medicaid policies constant that would result from the changes made through the proposed section 1332 waiver.
Projected federal spending under the section 1332 waiver proposal would also need to include all administrative costs to the federal government, including any changes in IRS
administrative costs, federal Exchange administrative costs, or other administrative costs associated with the waiver or alleviated by the waiver.
Under the proposed policies and interpretations outlined in this rule, section 1332 waivers must not increase the federal deficit over the period of the waiver which may not exceed 5 years unless renewed or in total over the 10year budget plan submitted by the state as part of the section 1332 waiver application. Consistent with the policies in the 2015 Guidance and in the 2018
Guidance, the 10-year budget plan would be required to describe for both the period of the waiver and for the 10year budget the projected federal spending and changes in federal revenues under the section 1332 waiver and the projected federal spending and changes in federal revenues in the absence of the waiver for each year of the 10 years.
The 10-year budget plan should assume the section 1332 waiver would continue permanently, but should not include federal spending or savings attributable to any period outside of the 10-year budget window. A variety of factors, including the likelihood and accuracy of projected spending and revenue effects and the timing of these effects, would be considered when evaluating the effect of the section 1332
waiver on the federal deficit. A section 1332 waiver that increases the deficit in any given year is less likely to meet the proposed deficit neutrality requirement than one that does not.
Upon consideration, the approach outlined in part 1 of the 2022 Payment Notice final rule is consistent with E.O.
14009 as it will not reduce coverage or otherwise undermine the ACA and Medicaid.
The Departments seek comment on these proposed policies and interpretations related to the deficit neutrality guardrail. The Departments believe this proposal would have minimal impact on both states with
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section 1332 waivers under development and states with approved waivers. The Departments solicit comment on the impact to stakeholders.
4. Section 1332 Application Procedures 31 CFR 33.108f4 and 45 CFR
155.1308f4
a. Actuarial and Economic Analysis 31
CFR 33.108f4iiii and 45 CFR
155.1308f4iiii As required under 31 CFR
33.108f4iiii and 45 CFR
155.1308f4iiii, states must include actuarial analyses and actuarial certifications, economic analyses, and the data and assumptions used to demonstrate and support the states estimates that the proposed section 1332
waiver will comply with the statutory guardrails. The Departments are not proposing any regulatory changes to 31
CFR 33.108f4iiii and 45 CFR
155.1308f4iiii, but are proposing, through preamble, policies relating to the requirements for the actuarial and economic analyses that are similar to the policies outlined in the 2015 and 2018 Guidance. We are proposing these policies to help ensure that the Departments have the appropriate and necessary information to measure the impact of waivers on the guardrails, particularly related to coverage. This information is especially important in light of the goal of E.O. 14009 to provide more comprehensive affordable coverage to consumers. In addition, the Departments encourage states to include in their analysis whether the proposed section 1332 waiver would increase health equity in line with E.O. 13985.
The proposed policies are as follows:
Consistent with the 2015 and 2018
Guidance, the determination of whether a proposed section 1332 waiver meets the requirements under section 1332
and the calculation of the pass-through funding amount would be made using generally accepted actuarial and economic analytic methods, such as micro-simulation. The analysis would rely on assumptions and methodologies that are similar to those used to produce the baseline and policy projections included in the most recent Presidents Budget or Mid-Session Review, but adapted as appropriate to reflect statespecific conditions. As provided in 31
CFR 33.108f4i and 45 CFR
155.1308f4i, the state must include actuarial analyses and actuarial certifications to support the states estimates that the proposed section 1332
waiver will comply with the comprehensive coverage requirement, the affordability requirement, and the scope of coverage requirement. In this
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