CCH® BENEFITS — 03/21/11

Proposed Rule Outlines State Waiver Process Under Health Reform

from Spencer’s Benefits Reports: The content of state waiver applications and how such proposals may be disclosed, monitored, and evaluated are explained in a new proposed rule that provides guidance to states that want to establish their own strategies for complying with the Exchange, individual mandate, and other provisions of the Patient Protection and Affordable Care Act (ACA).

The waivers are to begin in 2017, but President Barack Obama has supported a congressional proposal to start the waivers in 2014.

The proposed rule, scheduled to be published jointly by the Departments of the Treasury and Health & Human Services (HHS) in the March 14 Federal Register, sets forth a procedural framework for submission and review of initial applications for a Waiver for State Innovation described in ACA Sec. 1332, including processes to ensure opportunities for public input in the development of such applications by states and in the federal review of the applications.

Comments, which are due on or before 60 days after date of publication may be submitted through the federal government e-rulemaking portal at http://www.regulations.gov. In submitting comments to HHS’s Centers for Medicare and Medicaid Services, refer to file code CMS-9987-P.

Waiver Criteria

In order to apply for a waiver, states must enact a law and comply with federal regulations that ensure appropriate public notice and transparency. States also must demonstrate that, if the waiver is approved, the state’s plan will provide coverage that:

• is at least as comprehensive as the coverage that would have been provided under the ACA;
• is at least as affordable as the coverage and cost sharing protections under the ACA;
• covers at least as many residents as would have otherwise been covered under the ACA; and
• will not increase the federal deficit.

Public Notice, Application Content

Consistent with what is required by the law, the proposed rule says that an application must include the following:

The provisions of law that the state seeks to waive:

• the provisions of the law that the state seeks to waive;
• an explanation of how the proposed waiver will meet the goals related to coverage expansion, affordability, comprehensiveness of coverage, and costs;
• a budget plan that does not increase the federal deficit, with supporting information;
• actuarial certifications and economic analysis to support the state’s estimates that the proposed waiver will comply with the comprehensive coverage requirement, the affordability requirement, and the scope of coverage requirement; and
• analyses of the waiver’s potential impact on provisions that are not waived, access to health care services when residents leave the state, and deterring waste, fraud, and abuse.

Under the proposed rule, states with waivers submit quarterly and annual reports. They track measures in the four key areas: affordability, comprehensiveness of coverage, the number of people covered, and impact on the federal deficit.

Post-Award Evaluation

The proposed rule suggests criteria that could be used in the evaluation of the waivers while they are in place, covering such topics as the following:

• choice of health plans for individuals and employers;
• stability of coverage for individuals and employers;
• small businesses, individuals with pre-existing conditions, and the low-income population; and
• the overall health care system in the state and in other states and the federal government.

For more information on the proposed rule, contact Carrie Simons, Department of the Treasury, (202)622-0044; or Ben Walker, Centers for Medicare & Medicaid Services, (301)492-4430.

For more information on this and related topics, consult the CCH Pension Plan Guide, CCH Employee Benefits Management, and Spencer's Benefits Reports.