Federal Register - September 27, 2021
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Source: Federal Register
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Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 / Rules and Regulations
results from a natural disaster; public health emergency; or other emergent situations that threaten consumers access to comprehensive coverage, consumers access to health care, or human life could not 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.
g The Departments will consider circumstances to be emergent when they could not have been reasonably foreseen. The Departments will assess reasonable foreseeability based on the specific issues that a section 1332
waiver proposes to address and other relevant factors, and will not make this assessment based solely on the number of days a State may have been aware of such issues.
4. Amend 33.120 by revising paragraphs a and c2i and adding paragraphs c2iiF and c2iii to read as follows:
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33.120
Monitoring and compliance.
a General. 1 Following the issuance of a final decision to approve a section 1332 waiver by the Secretary and the Secretary of Health and Human Services, as applicable, a State must comply with all applicable Federal laws and regulations, unless expressly waived. A State must, within the timeframes specified in law and regulation come into compliance with any changes in Federal law and regulation affecting section 1332
waivers, unless the provision being changed is expressly waived.
2 The Secretary and the Secretary of Health and Human Services will examine compliance with Federal and regulatory requirements consistent with 155.1308f3iv when conducting implementation reviews under paragraph b of this section.
c
2
i The Secretary and the Secretary of Health and Human Services may modify, in part, State post award requirements under this paragraph c2
for an approved section 1332 waiver request during an emergent situation, when the application of the post award public notice requirements would be contrary to the interests of consumers.
These flexibilities are limited to emergent situations, including natural disasters; public health emergencies; or other emergent situations that threaten consumers access to comprehensive coverage, consumers access to health care, or human life.
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F The State must explain in its request for modification under this paragraph c2 how the emergent circumstances underlying its request results from a natural disaster; public health emergency; or other emergent situations that threaten consumers access to comprehensive coverage, consumers access to health care, or human life and could not reasonably have been foreseen and how the application of the post-award public notice requirements would be contrary to the interests of consumers.
iii The Secretary and the Secretary of Health and Human Services will consider circumstances to be emergent when they could not have been reasonably foreseen. The Secretary and the Secretary of Health and Human Services will assess reasonable foreseeability based on the specific issues that a section 1332 waiver proposes to address and other relevant factors, and will not make this assessment based solely on the number of days a State may have been aware of such issues.
5. Section 33.122 is added to read as follows:
33.122 Pass-through funding for approved waivers.
a Pass-through funding. With respect to a States approved section 1332 waiver, under which, due to the structure of the approved State waiver plan, individuals and small employers in the State would not qualify for or would qualify for a reduced amount of premium tax credit under section 36B of the Internal Revenue Code, small business tax credit under section 45R of the Internal Revenue Code, or costsharing reductions under ACA part I of subtitle E for which they would otherwise be eligible, the Secretary and the Secretary of the Health and Human Services shall provide for an alternative means by which the aggregate amount of such credits or reductions that would have been paid on behalf of participants in the Exchanges had the State not received such waiver shall be paid to the State for purposes of implementing the approved State waiver plan. Such amount shall be determined annually by the Secretary and the Secretary of Health and Human Services, taking into consideration 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 can be updated to reflect
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applicable changes in Federal or State law.
b Reserved 6. Amend 33.128 by revising paragraph a to read as follows:
33.128
Periodic evaluation requirements.
a The Secretary and the Secretary of Health and Human Services, as applicable, shall periodically evaluate the implementation of a program under a section 1332 waiver consistent with 33.108f3iv and any terms and conditions governing the section 1332
waiver.
7. Section 33.130 is added to read as follows:
33.130
Waiver amendment.
a Amendment to an approved section 1332 waiver. A State may request an amendment to an approved section 1332 waiver from the Secretary and the Secretary of Health and Human Services. A section 1332 waiver amendment is considered a change to an approved section 1332 waiver plan that is not otherwise allowable under the terms and conditions 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. A State is not authorized to implement any aspect of the proposed amendment without prior approval by the Secretary and the Secretary of Health and Human Services.
b Reserved 8. Section 33.132 is added to read as follows:
33.132
Waiver extension.
a Extension. A State may request continuation of an approved section 1332 waiver, and such request shall be deemed granted unless the Secretary and the Secretary of Health and Human Services, within 90 days after the date of submission of a complete waiver extension request to the Secretary and the Secretary of Health and Human Services, either denies such request in writing or informs the State in writing with respect to any additional information that is needed in order to make a final determination with respect to the request.
b Reserved For the reasons set forth in the preamble, under the authority at 5
U.S.C. 301, the Department of Health and Human Services amends 45 CFR
subtitle A, subchapter B, as set forth below.
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27SER2
