CMS Checklist For State 1332 Waivers Focuses On High-Risk Pools, Reinsurance

On May 11, 2017, the Centers for Medicare and Medicaid Services and the Department of the Treasury released a checklist for state 1332 innovation waiver applications. Following up on Health and Human Services Secretary Price’s letter to state governors of March 13, 2017, the checklist specifically focuses on state 1332 proposals to support high-risk pools or reinsurance programs.

Indeed, the checklist begins by stating:

The Department of Health and Human Services and the Department of Treasury (the Departments) are interested in working with states on Section 1332 waivers that would lower premiums for consumers, improve market stability, and increase consumer choice. In particular we welcome the opportunity to work with states to pursue Section 1332 waivers incorporating a high-risk pool/state-operated reinsurance program. State-operated reinsurance programs have a demonstrated ability to help lower premiums, and if the state shows a reduction in federal spending on premium tax credits a state could receive Federal pass-through funding to help fund the state’s reinsurance program.

The checklist restates the procedural requirements that states must meet under the current 1332 rules, such as posting a notice of the waiver proposal and accepting comments for at least 30 days, holding two public hearings, and consulting with Indian tribes where relevant.

Most elements in the checklist, however, describe specifically what information states must submit with applications for a 1332 waiver involving a reinsurance or high-risk pool program. While states must generally document state legislative authority to operate a 1332 waiver program, a state seeking a waiver to operate a high-risk pool or reinsurance program must establish that the legislation makes the program contingent on 1332 waiver approval or that the program will only become operational if the waiver is approved. Otherwise, the state would not be able to establish that federal 1332 waiver pass-through funding was necessary for the program.

A state must specify the provisions of the ACA it proposes to waive, which might, a footnote explains, include the ACA’s single-risk pool requirement for a reinsurance or high-risk pool proposal. State 1332 waiver proposals must include economic and actuarial data and analyses documenting the effect of the proposal on coverage and on comprehensiveness and affordability of coverage. A reinsurance/high-risk pool proposal would have to describe a baseline of premiums and coverage without the waiver and then compare this to projections of coverage and premiums under the waiver.

Proposals for 1332 waivers must explain how they would affect federal budget neutrality. A state seeking a reinsurance or high-risk pool waiver must establish a baseline of federal expenditures without the waiver and then show how federal expenditures or revenues for premium tax credits, shared responsibility payments, exchange user fees, and health insurance provider fees would change if the proposal is implemented.

States must further submit a timeline for implementation. They must describe whether they would use a condition-based list for a reinsurance program or an attachment-point-based model and the incentives they would offer providers, insurers, and enrollees to manage health care costs and utilization. They must describe how the program would affect other provisions of the Affordable Care Act and how it would provide out-of-state coverage for those who need it. States must report the actual second-lowest-cost silver benchmark plan premium annually, as well as an estimate of what it would have been without the program. The checklist further states, “For comprehensiveness, if there is no change to the provision of the ten Essential Health Benefits (EHB) identified in the benchmark plan, the state can indicate that it will report on any modifications from federal or state law on an annual basis.”

In sum, the checklist provides a roadmap for states that want to pursue high-risk pool or reinsurance 1332 waiver proposals, indicating again the priority that the Trump administration places on this approach for increasing the affordability of health insurance coverage.

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