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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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terms and conditions of the states section 1332 waiver. If pass-through funding is being sought as part of the states section 1332 waiver plan, states may also be required to submit data as outlined in the states terms and conditions for the Departments to calculate pass-through funding. The Departments are not proposing any changes to these waiver requirements.
In addition, these proposals do not change the existing requirements codified in 31 CFR 33.108f3iii and 45 CFR 155.1308f3iii for the states section 1332 waiver application to include a description of the provisions for which the state seeks a section 1332
waiver and how the waiver is necessary to facilitate the states waiver plan.
Further, under this proposed rule, the Departments propose that, as part of the states waiver plan if the state is seeking pass-through funding, the state waiver application should include an explanation of how, due to the structure of the section 1332 state plan and the statutory provisions waived, the state anticipates that individuals would no longer qualify for federal financial assistance or would qualify for reduced federal financial assistance, as a result of the section 1332 waiver.148 In addition, the Departments propose the state would also need to explain in its application how the state intends to use that funding for the purposes of implementing its section 1332 state plan.
The Departments seek comment on these proposals including the proposed adoption of the new regulatory text on pass-through funding for approved section 1332 waivers.
9. Periodic Evaluation Requirements 31
CFR 33.128 and 45 CFR 155.1328
The Departments are proposing to modify 31 CFR 33.128a and 45 CFR
155.1328a 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 periodic evaluation requirements 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 148 While this rule generally proposes to supersede and rescind the 2018 Guidance, the Departments are proposing these standards which align with the approach outlined in the 2018
Guidance.

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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 conducting periodic evaluations of approved section 1332 waivers.
10. Waiver Amendment 31 CFR 33.130
and 45 CFR 155.1330
The Departments are proposing new regulations at 31 CFR 33.130 and 45
CFR 155.1330 to delineate the process by which a state is permitted to submit an amendment to an approved section 1332 waiver. The proposed new regulations also capture a proposed definition of section 1332 waiver amendment. While the statute does not specifically mention amendment requests, some states with approved section 1332 waivers have indicated interest in amending their current approved waiver plans. Further, in response to previously received comments on the 2012 final rule, the Departments acknowledged that information regarding section 1332
waiver amendments and renewals would be needed in the future 149 and the Departments have received several inquiries from states on these topics. In addition, there may be situations where states pursuing proposed section 1332
waiver plans are interested in amending an application that has been submitted to the Departments for review. The Departments propose that the framework outlined in this rule would only apply to amendments to approved section 1332 waiver plans and would not apply to changes to an initial section 1332 waiver application submitted to the Departments but unapproved.150 A
state is not authorized to implement any aspect of the proposed amendment 149 See 77 FR 11700, https www.govinfo.gov/
content/pkg/FR-2012-02-27/pdf/2012-4395.pdf.
150 In circumstances where a state wants to amend its waiver application before the Departments have approved the waiver plan, the Departments intend to work with the state to ensure there is an adequate, meaningful opportunity for public notice and comment taking into account the particular circumstances of the situation and the states waiver application such as the changes to the proposed waiver, timing, etc..

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without prior approval by the Departments.
In this rule, the Departments set forth a proposed procedural framework for submission and review of amendment requests for an approved section 1332
waiver. The Departments are of the view that this additional information will help states with approved section 1332
waiver plans better plan for and prepare for potential amendments to their state waiver plans. The Departments also intend to continue providing information and details regarding the section 1332 waiver amendment process in the specific terms and conditions for an approved waiver plan. The proposals outlined later in this section are intended to align with the current amendment request process outlined in recent specific terms and conditions STCs for states with approved waivers.151
a. Definition of Waiver Amendment For purposes of these requirements, the Departments propose to define the term section 1332 waiver amendment as a change to a section 1332 waiver plan that is not otherwise allowable under the STCs of an approved waiver, a change that could impact any of the section 1332 statutory guardrails or a change to the program design for an approved waiver. Such potential changes include, but are not limited to, changes to eligibility, coverage, benefits, premiums, out-of-pocket spending, and cost sharing. The Departments propose to codify this definition in new proposed 31 CFR 33.130a and 45 CFR
155.1330a.
b. Waiver Amendment Process To request a waiver amendment, the Departments propose that the state must submit a letter in electronic format to the Departments to notify them in writing of its intent to request an amendment to its approved section 1332
waiver plans. The state would be required to include a detailed description of all of the intended changes, including the proposed implementation dates, in its letter of intent. The state is encouraged to submit the letter of intent at least 15 months prior to the section 1332 waiver amendments proposed implementation date and to engage with the Departments early on in their development of a potential waiver amendment. The state may want to submit this letter of intent more than 15
months prior to the section 1332 waiver 151 For example, see STC 9 in New Hampshires Approval Letter and STCs: https www.cms.gov/
CCIIO/Programs-and-Initiatives/State-InnovationWaivers/Downloads/1332-NH-Approval-STCs.pdf.

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