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khammond on DSKJM1Z7X2PROD with PROPOSALS2

Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules threat.139 States seeking new section 1332 waivers that had such prohibitions in effect at the time they would have otherwise had to conduct public notice were unable to hold two in-person public hearings prior to submission of their section 1332 waiver applications. In similar future emergent situations, this approach would allow the Secretaries to grant the states request to hold the two public hearings virtually, rather than in-person, or to hold one public hearing at the state level, rather than two public hearings at the state level, if the states request meets other applicable requirements. As another example, the Secretaries may agree with a states determination that, due to emergent circumstances that have arisen related to a natural disaster, there is insufficient time for the state to provide public notice and hold any public hearings at the state level prior to submitting its section 1332 waiver application as would otherwise be required by 31 CFR 33.112a and 45
CFR 155.1312a, and grant the states request to provide public notice and hold public hearings at the state level after the states submission of its application if the states request meets other applicable requirements.
In situations where the Departments approve a states modification request to provide public notice and host the statelevel hearings on a different timeframe or setting, such as after the submission of a states waiver application request, the state would be required to amend the application request as necessary to reflect public comments or other relevant feedback received during the alternative state-level public notice procedures. The Departments would evaluate a states request for a modification of the public participation requirements and issue their modification determination within approximately 15 calendar days after the request is received. In assessing whether a state acted in good faith, and in a diligent, timely, and prudent manner in the preparation of the modification request for the waiver, and for the section 1332 waiver application, the Departments would evaluate whether the relevant circumstances are sufficiently emergent. The Departments propose in new proposed 31 CFR
33.118g and 45 CFR 155.1318g that the Departments will consider circumstances to be emergent when they could not have been reasonably 139 https khn.org/morning-breakout/statesdeclare-emergencies-ban-large-gatherings-ascoronavirus-sweeps-the-nation/. https
www.axios.com/states-shelter-in-place-coronavirus66e9987a-a674-42bc-8d3f-070a1c0ee1a9.html.

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foreseen. In addition, the Departments propose to assess reasonable foreseeability based on the specific issues that a section 1332 waiver proposes to address and other relevant factors, and would not make this assessment based solely on the number of days a state may have been aware of such issues. Other relevant factors that the Departments would consider include the specific circumstances involved, the nature and extent of the future emergent situation, and whether the state could have predicted the situation. To assist the Departments with making this assessment the Departments also propose to capture a new requirement at 31 CFR 33.118b5
and 45 CFR 155.1318b5 to require a state submitting a modification request must also explain in its request how the circumstances underlying its request result from a natural disaster; PHE; or other emergent situations that threaten consumers access to health insurance coverage, consumers access to health care, or human life could not be reasonably have been foreseen and how a delay would undermine or compromise the purpose of the waiver and be contrary to the interests of consumers.
The Departments remind states that any public participation processes must continue to comply with applicable federal civil rights laws,140 including taking reasonable steps to provide meaningful access for individuals with limited English proficiency and taking appropriate steps to ensure effective communication with individuals with disabilities, including accessibility of information and communication technology. It is also important for states to remember that virtual meetings may present additional accessibility challenges for people with communications and mobility disabilities, as well as to those who lack broadband access. The Departments expect states to take these considerations into account when seeking flexibility to modify the public participation requirements as the overall statutory and regulatory obligation to ensure a meaningful level of public 140 The HHS Office for Civil Rights enforces applicable federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, age, or disability, as well as laws protecting the exercise of conscience and religious freedom, including the Religious Freedom Restoration Act 42 U.S.C. 2000bb through 2000bb 4. HHSs requirements are subject to these laws, and states may have obligations under these laws to protect conscience, prohibit coercion, and to ensure the free exercise of religion. U.S. Department of Health & Human Services, Office for Civil Rights, Conscience and Religious Freedom, https
www.hhs.gov/conscience/index.html last visited Aug. 20, 2020.

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input during the public notice and comment period would continue to apply. By way of example, ensuring effective communication during a future emergent situation when the otherwise applicable public notice and participation requirements are modified may include providing American Sign Language interpretation and real-time captioning as part of a virtual hearing, and ensuring that the platform used to host the hearing is interoperable with assistive technology for those with mobility difficulties. The Departments especially encourage states to strive to obtain meaningful input from potentially affected populations, including low-income residents, residents with high expected health care costs, persons less likely to have access to care, and members of federallyrecognized tribes, if applicable, as part of any alternative public participation process.
Consistent with the framework for COVID19 PHE state modification requests, the Secretary of HHS would publish on the CMS website any modification determinations within 15
calendar days of the Secretaries making such a determination, as well as the approved revised timeline for public comment at the state and federal level, as applicable.141 In addition, the state would be required to publish on its website any modification requests and determinations within 15 calendar days of receipt of the determination, as well as the approved revised timeline for public comment at the state and Federal level, as applicable.142
The Departments seek comment on these proposals.
b. Monitoring and Compliance 31 CFR
33.120 and 45 CFR 155.1320
As section 1332 waivers are likely to a have a significant impact on individuals, states, and the federal government, the 2012 Final Rule established processes and methodologies to ensure that the Secretaries receive adequate and appropriate information regarding section 1332 waivers consistent with section 1332a4Biv of the ACA. As part of the Departments monitoring and oversight of approved section 1332
waivers, the Secretaries monitor the states compliance with the specific terms and conditions of the waiver, including, but not limited to, compliance with the guardrails, reporting requirements, and the post 141 See 142 See
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31 CFR 33.118d and 45 CFR 155.1318d.
31 CFR 33.118e and 45 CFR 155.1318e.

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