CMS Releases State Relief and Empowerment Waiver Guidance; Comments Due December 24

​The Centers for Medicare and Medicaid Services (CMS) and the Treasury Department released new guidance related to section 1332 of the Patient Protection and Affordable Care Act (PPACA) and individual insurance marketplaces. Section 1332 provides the Secretary of Health and Human Services and the Secretary of the Treasury with the discretion to approve a state's proposal to waive specific provisions of the PPACA (a State Innovation Waiver, now also referred to as a State Relief and Empowerment Waiver), provided the section 1332 state plan meets certain requirements. The guidance provides supplementary information about the requirements that must be met for the approval of a State Innovation Waiver. This guidance supersedes the guidance related to section 1332 of the PPACA that was previously published on December 16, 2015.

The guidance outlines five principles for states to follow as they work to develop new state waivers: provide increased access to affordable private market coverage; encourage sustainable spending growth; foster state innovation; support and empower those in need; and promote consumer-driven healthcare. 

The new flexibilities available to states include the following: 
  • Allows states to provide consumers with plan options that best meet their needs, while, at the same time, ensuring people, including those with pre-existing conditions, retain access to the same level of coverage available today without the waiver;
  • Continues to require that a comparable number of people have coverage, but expands the definition of coverage to include more types of coverage, such as short-term plans;
  • Provides greater flexibility for states to consider improvements in comprehensiveness and affordability for state residents as a whole versus the prior focus on specific populations;
  • Supports increased variation and flexibility for states that may want to leverage components of the Federal Exchange platform to implement new models; and
  • Provides flexibility for states to meet the state legislative authority requirement. The guidance clarifies that in certain circumstances, existing state legislation that provides statutory authority to enforce ACA provisions and the state plan, combined with a duly-enacted state regulation or executive order, may satisfy the requirement that the state enact a law.  

This guidance is applicable October 22, 2018.

Comments are due December 24, 2018.

Additional Information