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Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 / Rules and Regulations 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 Secretary and the Secretary of the Treasury will consider circumstances to be emergent when they could not have been reasonably foreseen. The Secretary and the Secretary of the Treasury 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.
18. Amend 155.1320 by a. Revising paragraph a;
b. Revising the subject heading for paragraph c2;
c. Revising paragraph c2i; and d. Adding paragraphs c2iiF and c2iii.
The revisions and additions read as follows:

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155.1320

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 the Treasury, 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 the Treasury will examine compliance with Federal and regulatory requirements consistent with 155.1308f3iv when conducting implementation reviews under paragraph b of this section.

c
2 Modification from the normal post award requirements during an emergent situation. i The Secretary and the Secretary of the Treasury 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;

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public health emergencies; or other emergent situations that threaten consumers access to comprehensive coverage, consumers access to health care, or human life.
ii
F The State must explain in its request for a modification under paragraph c2 of this section 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 the Treasury will consider circumstances to be emergent when they could not have been reasonably foreseen. The Secretary and the Secretary of the Treasury 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.

19. Section 155.1322 is added to subpart N to read as follows:
155.1322 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 Treasury 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 the Treasury, 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
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States. This amount can be updated to reflect applicable changes in Federal or State law.
b Reserved 20. Amend 155.1328 by revising paragraph a to read as follows:

155.1328 Periodic evaluation requirements.

a The Secretary and the Secretary of the Treasury, as applicable, shall periodically evaluate the implementation of a program under a section 1332 waiver consistent with 155.1308f3iv and any terms and conditions governing the section 1332
waiver.

21. Section 155.1330 is added to subpart N to read as follows:

155.1330

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 the Treasury. A
section 1332 waiver amendment is considered a change to a 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 the Treasury.
b Reserved 22. Section 155.1332 is added to subpart N to read as follows:

155.1332

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 the Treasury, within 90 days after the date of submission of a complete waiver extension request to the Secretary and the Secretary of the Treasury, 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
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