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khammond on DSKJM1Z7X2PROD with PROPOSALS2

Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules still need to meet all other applicable requirements specified in 31
CFR 33.120c and 45 CFR 155.1320c.
For example, if the state receives a modification approval that permits it to hold the post award public forum virtually instead of in person, the state must still publish the notice of its post award public notice on the states public website and use other effective means to communicate the required information to the public. The public notice must include the website, date, and time of the public forum that will be convened by the state, information related to the timeframe for comments, and how comments from the public on the section 1332 waiver must be submitted.
The Departments remind states that they still must also comply with applicable federal civil rights requirements, including laws pertaining to accessibility, if the Secretaries approve a modification from post award public notice procedures. For example, a state that receives approval to host the required public hearings virtually would need to ensure the hearings are accessible to individuals with disabilities and individuals with limited English proficiency LEP so members of the public can participate and submit comments. The state should also track how many people are attending these forums, if possible.
In assessing whether a state acted in good faith, and in a diligent, timely, and prudent manner when reviewing a states post award modification request, the Departments would evaluate whether the relevant circumstances are sufficiently emergent. The Departments propose in 31 CFR 33.120c2iii and 45 CFR 155.1320c2iii that the Departments will consider circumstances to be emergent when they could not have been reasonably foreseen. In addition, the Departments propose that 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 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 33.120c2iiF and 45 CFR
155.1320c2iiF to require a state submitting a post award modification request must also explain in its request
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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 and could not be reasonably have been foreseen and how application of the post award public notice requirements would be contrary to the interests of consumers.
The Departments seek comment on this proposal.
7. Monitoring and Compliance 31 CFR
33.120 and 45 CFR 155.1320
The Departments are proposing to modify 31 CFR 33.120a1 and 2 and 45 CFR 155.1320a1 and 2 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 continued oversight and monitoring of an approved section 1332
waiver. 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 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 monitoring approved section 1332
waivers.
8. Pass-Through Funding 31 CFR
33.122 and 45 CFR 155.1322
Section 1332a3 of the ACA directs the Secretaries to pay pass-through funding to the state for the purpose of implementing the state section 1332
waiver plan and outlines accompanying requirements for making the passthrough funding determination. In this proposed rule, the Departments propose new regulation text at 31 CFR 33.122
and 45 CFR 155.1322 to codify in regulation details regarding the Departments determination of passthrough funding for approved section
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1332 waivers. More specifically, the Departments are proposing to codify in regulation that, with respect to a States approved section 1332 waiver, the amount of federal pass-through funding would equal the amount, determined annually by the Secretaries, of the PTC
under section 36B of the Code, the small business tax credit SBTC under section 45R of the Code, or cost-sharing reductions under ACA part I of subtitle E collectively referred to as federal financial assistance, that individuals and small employers in the state would otherwise be eligible for had the State not received approval for its section 1332 waiver. This would include any amount not paid due to an individual not qualifying for federal financial assistance or qualifying for a reduced level of such financial assistance. The pass-through amount would not be increased to account for any savings other than the reduction in federal financial assistance. The pass-through amount would be reduced by any net increase in federal spending or net decrease in federal revenue if necessary to ensure deficit neutrality. The passthrough estimates take into account experience in the relevant state and the experience of other states with respect to participation in an Exchange and credits and reductions provided under such provisions to residents of the other states. This amount would be calculated annually by the Departments and could be updated by the Departments as necessary to reflect applicable changes in Federal or State law. The proposed regulations further state, consistent with the statute,147 that any pass-through funding can only be used for purposes of implementing the states approved section 1332 waiver plan.
Consistent with the Departments existing regulations at 31 CFR
33.108f4 and 45 CFR 155.1308f4, state section 1332 waiver applications are required to provide analysis and supporting data to inform the Departments estimate of the passthrough funding amount and the waivers predicted impact on the deficit neutrality guardrail. For states that do not utilize a FFE, this includes information about enrollment, premiums, and federal financial assistance in the states Exchange by age, income, and type of policy, and other information as may be required by the Secretaries. Consistent with the Departments existing regulations at 31
CFR 33.124 and 45 CFR 155.1324, states with approved section 1332 waivers must comply with state reporting requirements in accordance with the 147 See
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section 1332a3 of the ACA.

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