State Roles Using 1332 Health Waivers

Dick Cauchi, Colleen Becker 12/14/2018

Innovation Waivers: State Options and Legislation Related to the ACA Health Law

Beginning Jan. 1, 2017, a new state option within the Affordable Care Act (ACA) took effect, known as Section 1332 Waivers. For the first time since the law was signed six years earlier, this new process can allow any state to seek to modify key parts of the health law within its boundaries.1 While in effect, these 1332 waiver options offer states an opportunity to fashion a new coverage system customized for local context and preferences while still fulfilling the aims of the ACA. The statute requires interested states to pass authorizing legislation as an early step in order to apply for and ultimately implement waiver-based reforms.2  

The process is further detailed as authorized by the United States Secretary of HHS pursuant to 42 U.S.C. § 18052. 

As of late October, 2018 at least 35 states have considered legislation to initiate the 1332 waiver application process. The content and proposed state changes vary widely, from minor fixes to substantial redirections. Some seek to restrict the use of these federal waivers. Several measures were defeated or deferred. Recent results are detailed below. Idaho has a draft 1332 waiver proposal subject to passage of state legislation in 2018. One state (NY) had pending bills seeking federal waivers like Sec. 1332, but did not identify them by statute reference. The total includes several states with unsuccessful bills and two with passed bills that were vetoed.

  • LATEST APPROVALS: HHS and Treasury completed approval of Maryland's reinsurance plan, announced on Aug. 22, 2018. Three additional states received prompt approvals during that same 30-day period: New Jersey (Aug. 16), Wisconsin (July 29) and Maine (July 30, 2018). The total approved stands at eight states as of Nov. 20, 2018.
  • RECENT NEWS: On Oct. 23, 2018 the Department of Health and Human Services (HHS) announced proposed new regulations to provide “new state flexibilities that provide states opportunities to increase choice and competition within their insurance market while protecting people with pre-existing conditions. This new guidance gives states more flexibility to address problems caused by the PPACA (ACA) and to give Americans more options to get health coverage that better meets their needs.  Under this new policy, states will be able to pursue waivers to improve their individual insurance markets, increase affordable coverage options for their residents and ensure that people with pre-existing conditions are protected.  These waivers will now be called State Relief and Empowerment Waivers to reflect this new direction and opportunity."
          ♦ The CMS/HHS Announcement: CMS-9936-NC: State Relief and Empowerment Waivers (10/23/2018)
          ♦ HHS: State-Innovation-Waivers/Section_1332_State_Innovation_Waivers    
    Early independent analysis indicates that increased flexibility includes expanded use of short-term, limited-duration plans and Association Health Plans, and continues to not include options for public insurance coverage or expanded buy-in options for insurance. The regulations would emphasize requirements to allow states to apply for waivers without new enacted legislation.  It also suggests a waiver approach allowing use of private insurance coverage for individuals below 100 percent of federal poverty, in states that have not expanded Medicaid to persons up to 138 percent of poverty.  Further descriptions and analyses will be included in updates to this web report.

Updated CMS Checklist for States: Back in May 2017, the Trump Administration's Centers for Medicare and Medicaid Services (CMS) and the U.S. Department of the Treasury released a checklist to help states interested in pursuing Section 1332 Waivers. It is intended especially for 1332 waivers implementing a high-risk pool/state-operated reinsurance program.  CMS encourages states interested in applying for Section 1332 Waivers to reach out to both Departments promptly for assistance in formulating an approach that meets the requirements of Section 1332. The final CMS state checklist is posted on their website. CCIIO maintains a introductory description and a list of officially filed 1332 waiver applications

Trump Administration Initial Steps: The Department of Health and Human Services (HHS), in partnership with the Department of the Treasury, on March 13, newly reinforced and "suggested ways to help foster healthcare innovation by giving states" greater flexibility. “States need the flexibility to develop innovative healthcare models that will improve patient access to care, increase affordability and choices offered, lower premiums, and improve market stability,” said former Health and Human Services Secretary Tom Price, M.D. The “Secretary's letter (3/13/2017) "highlights State Innovation Waivers as opportunities for states to modify existing laws or create something entirely new to meet the unique needs of their communities.”  HHS provided an updated edition of the HHS guidance, substantially identical to the 2016 edition described below. Federal officials restated and clarified that any new, 2017-2018 state application would have to provide for a public notice and comment period, including public hearings to receive a sufficient level of public input, and enact a state law providing for its implementation of the waiver.

States Legislation Related to Sec.1332 Waivers

State Legislation and Enacted Laws Related to 1332 Waivers (2015-2018)

The listings below include bill numbers, recent status and brief descriptions of provisions sought by the legislation. Additional measures will be added as they are filed or amended to include a 1332 waiver provision. This list should not be considered the entirety of state activity. The format is based on NCSL’s Health Innovations Database, which provides online access to enacted laws. Several individual states have more than one proposal.

  • Filed 1332 Waiver Legislation for 2019 sessions: Wyoming (D 64)
  • Filed 1332 Waiver Legislation for 2018 sessions: (Table 1) 

Between January 1 and August the following 13 states considered newly-filed measures: Colorado (S 132), Connecticut (H 5114), Hawaii (H 2146, S 2199), Idaho, Indiana, (H 1301), Louisiana (H 246), Maryland (enacted, S. 387, H 1782 ), Missouri (H 2539), New Jersey (enacted, S.1878), Oklahoma (S 1162), Virginia (S 964; H5002a), Wisconsin (enacted, S 770) and Wyoming (S 88). Description and details are in Table 1 immediately below:   

State Legislation/Status  2018 Summary description

Colorado
CO S 132 of 2018

Filed; passed Senate & House,  signed into law, 5/3/2018 as Chapter 194.

Authorizes a 1332 waiver of federal law to permit insurance carriers to offer catastrophic health plans to any individual residing in Colorado rather than only individuals under the age of 30 or meeting a hardship requirement.  

CO H 1392

Filed 4/13/2018; passed House 4/30/2018;

 

Concerns the creation of the state reinsurance program to provide reinsurance payments to health insurers to aid in paying high-cost insurance claims; authorizes the commissioner of insurance to seek approval from the federal government to waive applicable federal requirements, provide federal funds, or both to enable the state to implement the reinsurance program and making the program contingent upon waiver or funding approval. 

Connecticut
H 5114 of 2018

 

Filed 2/14/2018
failed to pass

 committee 3/22/2018

Concerns mandatory health insurance coverage, establishing an affordable health care fund and a task force to develop a reinsurance program to seek a state innovation waiver; establishes an individual mandate and accompanying tax penalty, an Affordable Health Care Fund, a comprehensive health insurance coverage verification program and a task force to develop a reinsurance program that will enable the state to seek a 1332 State Innovation Waiver.

CT H 5463 of 2018 Filed 3/7/2018;Passed House 5/1/2018; failed in Senate. Establishes a Medicaid public option in which persons not otherwise eligible for Medicaid can buy coverage. Provides '"Whether the state should apply for an 1332 innovation waiver  to allow eligible persons who enroll in a Medicaid public option to use tax credits and cost-sharing subsidies toward their premiums;

HI H 2146
of 2018

Filed 1/19/2018; favorable comm. report, 2/14

Allows the state to ''apply for another section 1332 state innovation waiver to explore the possible establishment of a state reinsurance program for the individual health insurance market. The intent of such a program would be to control the cost of health insurance in Hawaii by providing additional funding and innovative methods of pooling risk to cover health care for high-risk patients with costly medical claims.

Idaho
H 338

Filed 1/17/2018; in House Comm. on Health and Welfare.

Authorizes an application for a 1332 waiver; provides that the Board of Directors of the Individual High-Risk Reinsurance Pool shall take certain action; provides medical assistance eligibility for certain individuals; provides that the Department of Health and Welfare will establish certain premiums. Expands Medicaid ''Effective as soon as federal approval for coverage can be obtained,” persons with costly and complex medical conditions in accordance with the approved waiver.''

Indiana
H 1301

Filed 1/11/2018; passed House and Senate; Signed as Public Law No. 208-2018, 3/25/2018

The governor and the commissioner may apply to the United States Secretary of HHS for a waiver for state innovation under Section 1332, and if approved “may implement a state plan of innovation that meets the waiver requirements established under federal law.” [Note: This authorization for a Sec.1332 waiver is inserted in a law that also regulates some reinsurance policies; the new waiver language does not specify or limit the type of waiver provisions to be requested]

Louisiana
H 246 of 2018;
H 472 of 2018

Filed 3/12/2018
 

Authorizes the commissioner of insurance to apply for a state innovation waiver to establish and implement a reinsurance program.

Maryland
H 1795 &
S 1267;
S 387 &
H 1782

Filed 2/28/18; enacted & signed 4/2018

HHS approved
8/22/2018


 

 

 

Requires, rather than authorizing, the Exchange to establish a State Reinsurance Program to provide reinsurance to carriers that offer individual health benefit plans in the State; requires that the Program be designed to mitigate the impact of high-risk individuals on certain rates; provides that, beginning on January 1, 2019, funding for reinsurance in the individual health insurance market through the Program may be made from any available State and federal funding source, including any ''pass-through funds received from the federal government under a waiver approved under § 1332 of the ACA''.

  • Maryland is the most recent state to submit an approved  Section 1332 waiver. On July 5, 2018, the Departments of HHS and the Treasury notified officials in Maryland that their application for a state 1332 innovation waiver was complete. The Departments will accept public comment on the waiver application until August 4, 2018, and approve or deny the application within 180 days. Read more >>
  • HHS waiver approval for a state-based reinsurance plan was announced Aug. 22, 2018

Missouri (H 2539),

Filed 2/27/2018; pending

 

The director shall apply to the Secretary of HHS under 42 U.S.C. Section 18052 for a state innovation waiver to implement the Missouri reinsurance plan for benefit years beginning January 1, 2019, and future years, to maximize federal funding for the plan.

New Jersey
S 1878 of 2018

Filed 2/8/2018; 
Signed into law, 5/30/2018

 

Relates to the New Jersey Health Insurance Premium Security Act; establishes health insurance reinsurance plan; relates to stabilizing or reduce premiums in the individual health insurance market by providing reinsurance payments to health insurance carriers with respect to claims for eligible individuals.
    A separate new law to create a state individual mandate (S1877) would require individuals who work for small businesses to enroll in coverage that meets small-group mandates in order to avoid the state's penalty for not having qualifying insurance.

  • HHS and Treasury completed preliminary review of New Jersey’s 1332 state innovation waiver application and determined that it is complete. Read the HHS letter of July 13, 2018.
  • HHS and Treasury on Aug 16, 2018 approved New Jersey’s State Innovation Waiver application under section 1332. New Jersey’s application seeks to implement the New Jersey Health Insurance Premium Security Plan for 2019 through 2023. The CMS approval states, "As a result of the waiver approval, more individuals in New Jersey may have coverage, individuals will see lower premiums, and the state will receive pass-through funding to help offset a substantial portion of State costs for the state-operated reinsurance program. New Jersey  is seeking to waive section 1312(c)(1) of the PPACA to the extent that it would otherwise require excluding total expected state reinsurance payments when establishing the market-wide index rate. This approval of New Jersey’s waiver application is effective for January 1, 2019 through December 31, 2023.

Oklahoma
S 1162  of 2018

Filed 1/2018; passed Senate 3/14/2018

Relates to insurance; seeking approval of a waiver provided by a 1332 State Innovation Waiver, authorizing federal funding to support market stabilization program payments.

Virginia
H5002a of 2018
Passed in special session; signed 6/7/2018 as special session Ch. 2 (Budget sub. sec.) “E.1. The Secretary of Health and Human Resources is authorized to develop and apply for a state innovation waiver under Section 1332 of the federal Patient Protection and Affordable Care Act (42 U.S.C. 18052) to implement innovative solutions to help stabilize the individual insurance market by reducing individual insurance premiums and out-of pocket costs while preserving access to health insurance. Such solutions may include the implementation of a state reinsurance program or high risk pool, or market stabilization program payments, among others.”

Virginia
S 964 of 2018
 

Passed Senate and House, sent to governor, 3/9/2018

Provides that a catastrophic health insurance plan, that does not provide a bronze, silver, gold, or platinum level of coverage, shall be deemed to provide an essential health benefits package as defined;  “waiving the eligibility restrictions’ in the ACA; provides that a health carrier may offer catastrophic plans on the individual market.

Wisconsin
S 770

 

Passed Senate & House; signed into law 2/27/2018 as Act No. 138.

Waiver Approved 7/29/2018.

 

Establishes the Healthcare Stability Plan; with a program for reinsurance of health carriers (with a goal of controlling premium price increases); reallocates savings from the health insurer fee; authorizes use of some funds ''for the state subsidy of reinsurance payments for the reinsurance program; in addition, Federal funds referenced as ''All moneys received from the federal government for reinsurance for the purposes for which received.'' Authorizes a state request to the federal HHS for one or more waivers under 42 USC 18052 (sec. 1332) to implement the healthcare stability plan. On April 18, 2018, Wisconsin submitted a State Innovation Waiver application.  The federal Departments (HHS, Labor, Treasury) determined that the application was complete on May 9, 2018. The letter that CMS issued July 29 informs Wisconsin that the Waiver under section 1332 of the ACA is approved, subject to the state’s acceptance of the specific terms and conditions (STCs) in the letter.. See Table 2 below.

Wyoming
S 88 of 2018

Filed 2/12/2018; did not pass

Coverage under medical assistance to be made available for purchase on the federal health benefits exchange established by the United States HHS pursuant to the ACA as amended, by a person who is not otherwise eligible for medical assistance.

Wyoming
D 64 of

2019

Prefiled 11/13/2018  for 2019: Authorizes the insurance commissioner to apply for a federal 1332 innovation waiver to establish a health care reinsurance program as specified; requires a report on the benefits of reinsurance by 9/2/2019, and a filed waiver if the commissioner ''finds that healthcare insurance costs for insured populations and issurers in Wyoming can be meaningfully reduced...''  [Filed for 2019]
  • Filed Bills for 2017 sessions: Bills were filed in Kentucky, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, South Dakota and Texas. In addition, bills were refiled In Arkansas, California, Maine, Minnesota and Vermont.
  • Filed Bills from previous, 2015-2016 sessions, bills affecting, examining or authorizing the use of ACA section 1332 waivers were initially filed in at least 18 states. These include: Alaska, Arkansas, California, Colorado, Georgia, Hawaii, Maine, Massachusetts, Minnesota, New Mexico, Ohio, Oklahoma, Rhode Island, South Carolina, Texas, Vermont and Washington.
     
  • Enacted Laws: 20 of these states enacted measures related to 1332 waivers, including: AlaskaCalifornia, Colorado (2018) , Hawaii, Indiana (2018), Kentucky (2017), Maine (2017), Maryland (2018), Massachusetts, Minnesota (2015 & 2017), New Hampshire (2017), New Jersey (5/2018), Ohio, Oklahoma, Oregon (2017), Rhode Island, Texas, Vermont, Virginia (2018 special session) and Wisconsin (2018).2.  Note that the effect of state laws varies considerably, with some having an advisory effect or a binding but exploratory intent or result.
  • Active or Pending Waivers:
    • Vermont had a filed and pending waiver as of September 2016; it was deemed incomplete by HHS and has not moved forward.  
    • New Hampshire has an application that received public comment to the state. 
    • Massachusetts began an in-state application process in 2016 that was not listed with HHS; on Oct. 23, 2017 HHS deemed it "incomplete" and not applicable for 2018 health plans.
    • New Jersey: HHS and Treasury completed preliminary review of New Jersey’s 1332 state innovation waiver application and determined that it is complete. Read the HHS letter of July 13, 2018
    • Ohio filed a waiver application, on March 30, 2018, It proposed to completely eliminate the "individual manade" requiring heath insurance coverage, a minor legal step now that federal law eliminated the individual financial penalty. This waiver was not approved by HHS in May 2018.
  • Filed and Withdrawn:
    • California filed a waiver (Sept. 2016) that seeks to provide unsubsidized health plans to undocumented individuals; the state withdrew that waiver on Jan.18, 2017.
    • Iowa submitted an executive branch waiver application to CMS, not associated with a 1332 state law. This received a preliminary notice of completeness on Sept. 19; however on Oct. 23, 2017 Governor Reynolds withdrew the request due to disagreements with HHS. (see below)
    • Oklahoma filed a waiver to implement a reinsurance program beginning 1/1/2018; but they withdraw the application as of 9/29/2017 due to delays.

  • Approved Waivers: Eight waivers have been completely approved, between Dec. 2016 and Aug. 22, 2018. (Details are in the table below).graphic: "Reinsurance" on computer keyboard

     

    • Alaska, 2017 - On July 11, CMS approved Alaska’s application which "seeks to implement the Alaska Reinsurance Program (ARP) for 2018 and future years. As a result of the waiver approval, more consumers in Alaska may have coverage, consumers will see lower premiums, and the state will receive federal funds to cover a substantial portion of State costs for the ARP." 
    • Hawai'i, 2016 - On Dec. 30, 2016, CMS approved the 1332 waiver for Hawai’i, which frees the state  "from the requirement that it operate a Small Business Health Options Program (SHOP), as well as related provisions. The waiver will also allow the small business tax credit amounts that would otherwise be paid to small employers who purchase coverage through the SHOP to be used primarily to support a Hawai'i state fund that helps small businesses offer health coverage." This was the only waiver granted by the Obama administration.
    • Maryland is the most recent state to submit a Section 1332 waiver. On July 5, 2018, the Departments of HHS and the Treasury notified officials in Maryland that their application for a state 1332 innovation waiver was complete. The Departments approved the reinsurance plan on Aug. 22, 2018.
    •  Minnesota, 2017- On September 22, 2017, CMS & Treasury approved Minnesota’s 1332 State Innovation Waiver "subject to the state’s acceptance of the Specific Terms and Conditions (STCs)."  The approval is effective for January 1, 2018, through December 31, 2022. It includes one denial of requested funding: "The Departments do not approve Minnesota's request to receive funding equal to the amount of the forgone federal funds and assistance that would have been provided without the waiver. Under section 1332(a)(3), pass-through may only include savings based on PTC, cost sharing reductions or small business credits for which individuals and businesses in Minnesota would have qualified without the waiver..."
    • New Jersey, August 2018 -  New Jersey will implement the New Jersey Health Insurance Premium Security Plan for 2019 through 2023. The CMS approval states, "As a result of the waiver approval, more individuals in New Jersey may have coverage, individuals will see lower premiums, and the state will receive pass-through funding to help offset a substantial portion of state costs for the state-operated reinsurance program. 
    • Oregon, Oct. 2017 - On October 19, 2017, CMS and Treasury issued an waiver letter, approving the year 2018 plan year to develop a state reinsurance program for qualifying health insurance policies.
    • Wisconsin was fifth to be granted approval with a waiver letter, on July 29, 2018. On April 18, 2018, Wisconsin submitted a State Innovation Waiver application. The Departments (HHS, Labor, Treasury) determined that the application was complete on May 9, 2018.
    • Maine became the sixth to be granted approval with a waiver letter, on July 30, 2018. Maine is waiving ACA requirements and "re-implementing a state-established reinsurance program for 2019 through 2023 to stabilize the individual market." 
  • Data Table1332 State Innovation Waivers for State-Based Reinsurance (Same facts as above, different format by SHADAC, 8/23/2018)
(Table 2)    State Legislation & Actions Related to 1332 Waivers 
State Status Description

Alaska

HB 374 of 2016

 

AK H 57 of 2017

Enacted into law; signed as Ch. 5, 7/18/2016
 


Enacted into law; signed as Ch. 1, 6/30/2017

Waiver Filed 12/29/2016

Approved 7/11/17

Reenacts Sec. 21.96.120. Waiver for state innovation, also referencing reinsurance and state high risk program. "The director may apply to the United States Secretary of Health and Human Services under 42 U.S.C. 18052 for a waiver of applicable provisions of P.L. 111-148 (Patient Protection and Affordable Care Act) with respect to health insurance coverage in the state for a plan year beginning on or after January 1, 2017. The director may implement a state plan meeting the waiver requirements in a manner consistent with state and federal law and as approved by the United States Secretary of Health and Human Services." Effective date: 7/18/2016..

HB 57, the FY 2018 state budget appropriates $55,000,000 from the Alaska comprehensive health insurance fund to the division of insurance, for the 2017 reinsurance program, authorized through June 2023.; funds ’’are contingent on federal approval of Alaska's Section 1332 waiver."

Waiver Filed to reimplement the Alaska Reinsurance Program (ARP) - Alaska Section 1332 State Innovation Waiver. The HHS response 1/17/2017 indicated the application was complete but additional state legislation would be needed to appropriate funds for the proposed program. Letter from Secretary Burwell to Governor Walker. |

Arkansas

S 828 of 2015

H 1271 of 2017 

Engrossed; 3/5/2015; did not pass; adjourned 

2017 did not pass

Creates the Arkansas Health Insurance Innovation Act of 2015. Declares an emergency. The purpose of this measure is to encourage the executive and legislative branches to explore, develop, and facilitate innovative approaches to improving access to, affordability, and quality of comprehensive health insurance coverage and health care.

(2017) Creates the Arkansas Health Insurance Innovation Act of 2017.

California

S 10 of 2016

 

Passed Senate & Assembly;
Enacted into law; signed 6/10/2016 as Chapter 22 of 2016

--------------
Waiver filed Sept. 2016

Allows previously unauthorized immigrants to buy health insurance on the state-based health exchange created under the federal ACA. It authorizes the state to request a Section 1332 waiver from the federal government that is needed to allow a new category of ''individuals who are not eligible to obtain health coverage through the Exchange because of their immigration status'' to purchase unsubsidized insurance through Covered California, (Established by a 2010 state law, SB 900). After the waiver has been approved by HHS, the Exchange will require a health insurance issuer to offer a qualified health plan (HP) to these individuals, effective 2018. Requires that eligible individuals pay the cost of coverage without federal assistance and meet other requirements. The law is the first in the country to offer that category of coverage through an exchange. Prohibits disclosure of application-related information. The waiver was withdrawn by California in a letter to CMS sent Jan. 18, 2017 - also see the related bill for 2017.

California - not enacted

S 1364 of 2016
 

A 417 of 2017

 Did not pass; adjourned 2016


Passed Assembly 5/11/2017
 

S 1364: Declares the intent of the Legislature to enact legislation that would create a competitive marketplace for health care coverage consistent with the State Innovation Waiver requirements.


Changes the name of the Small Business Health Options Program (SHOP) to Covered California for Small Business. The Exchange shall apply to the HHS for a 1332 waiver of Section 100501 in order to allow persons otherwise not able to obtain coverage by reason of immigration status through the Exchange to obtain coverage from the Exchange.

Colorado
CO S 132 of 2018
Filed; passed Senate & House,  signed into law, 5/3/2018 as Chapter 194. Authorizes a 1332 waiver of federal law to permit insurance carriers to offer catastrophic health plans to any individual residing in Colorado rather than only individuals under the age of 30 or meeting a hardship requirement.

CO H 2 of 2016

Filed 10/26/15; failed; Withdrawn from further consideration.

(H 2) Concerns a requirement that the state apply for a waiver of requirements of the federal ACA to allow employers to provide contributions to employees to purchase individual health care coverage in lieu of offering employer-sponsored group health care coverage. Requires an optional program for employers to share health care coverage costs with their employees. Provides for minimum premium amounts.

Connecticut
H 5114 of 2018
Filed 2/14/2018 Concerns mandatory health insurance coverage, establishing an affordable health care fund and a task force to develop a reinsurance program to seek a state innovation waiver; establishes an individual mandate and accompanying tax penalty, an Affordable Health Care Fund, a comprehensive health insurance coverage verification program and a task force to develop a reinsurance program that will enable the state to seek a 1332 State Innovation Waiver.

Georgia

H 1160 of 2016

Filed 3/16/16; Did not pass; adjourned 

Restricts involvement with health reform and requires legislative notification before the submission of waivers pursuant to Section 1332 of the ACA. Notification must “be by general Act or joint resolution of the General Assembly. Title includes “Relates to medical assistance generally.”

Hawaii

H 576 of 2015

 

S 2775 of 2016

 

S 1341 (did not pass; see above)

 

Passed House & Senate; enacted into law; signed 7/1/15 as Act 184.

S 2775 Enacted into law; signed 4/24/2016 as Act 13

Waiver filed 2016; approved 12/30/2016

Provides resources to develop a waiver from provisions of the ACA. Appropriates funds. Relates to a plan for coverage that is at least as comprehensive as required by the federal act, provides coverage and cost-sharing protections that are at least as affordable under the federal act, makes health insurance coverage available to as many residents as under the federal act, is budget-neutral for the federal government and complies with public notice requirements.

> S 2775 provides for alignment of the Affordable Care Act with the Hawaii Prepaid Health Care Act's requirements with three provisions as approved Dec. 2015: (1) ''Maintain access to affordable health insurance coverage for individuals via the state-based exchange utilizing the federal platform; (2) Align the Affordable Care Act with the Hawaii Prepaid Health Care Act's requirements for private employers to the extent allowable; and (3) Waive the Affordable Care Act Small Business Health Options Program and its requirements for the small business marketplace, including the employee choice provision.''

HI H 2146 of 2018 Filed 1/19/2018; favorable comm. report, 2/14 Allows the state to ''apply for another section 1332 state innovation waiver to explore the possible establishment of a state reinsurance program for the individual health insurance market. The intent of such a program would be to control the cost of health insurance in Hawaii by providing additional funding and innovative methods of pooling risk to cover health care for high-risk patients with costly medical claims.

Idaho

(2018 legislation;

Waiver draft application pending state legislative action.

 

See description in 2018 - Table 1 Idaho has a draft 1332 waiver proposal subject to passage of state legislation in 2018. (Released 11/1/2017)

The goals are to:
“1. Increase overall participation in Idaho’s individual health insurance market.
2. Provide affordable coverage options to working Idaho households with incomes below 100% of the Federal Poverty Level (FPL) who are U.S. citizens not eligible for Medicaid, through the same mechanism that lawfully-present aliens currently obtain affordable coverage.
3. In conjunction with Idaho’s proposed Section 1115 Medicaid Waiver and Idaho Individual High Risk Pool (enacted 2017), stabilize and decrease the cost of insurance premiums in the individual health insurance market.

The Waiver will extend APTC and CSR eligibility to those working citizens who file federal income tax returns with income below 100% FPL . These individuals and families, expected to be around 22,000 lives, will qualify for APTC to the same extent as those with incomes of 100%  FPL: APTC will offset premium in excess of 2% of countable income. These Idahoans will also qualify for CSRs when enrolled in a silver plan through the exchange, which will provide cost sharing at a 94% actuarial value.”

  • Published for public comment, 11/1/2017; Public comment ends 12/15/2017; planned submission to CMS 1/5/2018; proposed state legislation authorizing 1332 and 1115 enacted and signed April 2018; ideally, CMS grants waiver May 2018.
Indiana
H 1301 of 2018
Filed 1/11/2018; passed House and Senate; signed into law, 3/25/2018 The governor and the commissioner may apply to the United States Secretary of HHS for a waiver for state innovation under Section 1332, and if approved may implement a state plan of innovation that meets the waiver requirements established under federal law.

Iowa

(Legislation not specified)

Waiver draft submitted to CMS, 8/21/2017

 

Withdrawn 10/23/2017
 

Iowa has proposed a 1332 waiver via executive branch initiative only.

The Iowa Stopgap Measure "is a short-term solution to bring stability for Iowans dealing with the effects of the collapsing individual health insurance market due to the Affordable Care Act (ACA).  Without the Iowa Stopgap Measure, 20,000 more Iowans will likely be forced to go uninsured due to skyrocketing premium costs under the ACA according to the economic and actuarial analysis."
      It includes provisions for: 1) A single, standard plan available to every eligible Iowa consumer from each participating carrier, 2) Flat, per-member per-month premium credits based on age and income, and 3) A reinsurance program to support high-cost claimants. 

  • Iowa state waiver documents: 1332 Iowa waiver web page by the Dept. of Insurance |   Economic and Actuarial Analysis - Aug. 9, 2017  |  Iowa video description - Aug. 2017 |  Iowa 1332 submitted application - August 21, 2017. (192 pp-PDF)

    CMS correspondence: Letter of Preliminary Determination of Completeness -Sept. 19, 2017

  • Waiver Withdrawn: “Unfortunately, it now appears Obamacare’s waiver rules are as inflexible as the law itself,” Gov. Reynolds said at an Oct. 23 news conference in Des Moines. “I’m extremely disappointed.” Iowa wanted to create a state-run system for 2018 that its insurance commissioner said would lower premiums for most of the 72,000 residents of the state who currently have Obamacare health plans, including 28,000 who earn too much to get subsidies to help with the cost.
  • Analysis: Iowa Waiver Application Presents Crucial Decision Point For Administration. "If CMS approves Iowa’s 1332 waiver application rewriting parts of the ACA, other states unhappy with the law will surely follow Iowa’s example.  (Excerpt) Reallocating Cost-Sharing and Premium Assistance: This proposal would abolish cost-sharing reduction payments for low-income enrollees; it would reallocate the funds that would otherwise have been devoted to reducing cost sharing and providing premium assistance for lower-income marketplace enrollees to provide premium assistance for all individual market enrollees, regardless of income. Because the federal exchange, which has served Iowa, can only administer tax credits according to the schedules set out in the ACA, Iowa is also proposing to establish its own system for determining eligibility for premium credits and for paying them to insurers." Posted at Health Affairs by Timothy Jost, JD, 8/24/2017.

Kentucky

H 242 of 2017

Enacted into law; Signed 3/21/2017

 

Authorizes the Department of Insurance to apply for a state 1332 innovation waiver under the ACA and implement any state plan proposed under an approved waiver. Requires final approval of a state plan by vote of the legislature. Also establishes the (renamed) Division of Insurance Product Regulation and the Division of Administrative Services; as well as renaming the Division of Consumer Protection.

Louisiana
H 246 of 2018;
H 472 of 2018
Filed 3/12/2018
 
Authorizes the commissioner of insurance to apply for a state innovation waiver to establish and implement a reinsurance program.

Maine 

S 221 of 2017

Enacted; signed as Public Law No. 124, 6/2/2017 

Waiver filed 5/9/2018

Waiver approved by CMS, July 30, 2018
 

*NEW*

Amended the Maine Guaranteed Access Reinsurance Association Act; provides that the superintendent may order the association to resume operations in accordance with the revised plan if the revised plan is likely to provide significant benefit to the State's health insurance market. "the superintendent may develop a proposal for an innovation waiver under Section 1332."

On  May 9, 2018, Maine submitted a waiver application to the federal government seeking funding for a state-based reinsurance program.

On July 30, 2018, CMS issued a letter to Maine that the State 1332 waiver under ACA was approved, subject to the usual state acceptance of the specific terms and conditions (STCs) in the letter. 

Maine

S 289 of 2015

Filed 2/15;Did not pass; adjourned 

Seeks to establish the "Maine Health Care Plan" a universal, single-payer style plan "to provide security through high-quality, affordable health care for the people of the state and to include federal funds to the maximum extent allowable under federal law and waivers from federal law. The plan would become effective and binding upon the approval of a state waiver ...  pursuant to Section 1332."

Maryland
H 1795 &
S 1267; S 387 &
H 1782 of 2018

Enacted & signed, 4/2018

Waiver Approved 8/22/2018

Authorizes receiving federal funds and state funding for reinsurance in the individual market through the health care access program and shall be contingent on the CMS/HHS approving a waiver under section 1332 of the affordable care act.

  • LATEST APPROVAL: HHS and Treasury completed final review and approval of Maryland's reinsurance plan, announced on Aug. 22, 2018.
    Maryland state officials described their new program: "Maryland will use about $365 million that health insurance companies no longer have to pay the federal government due to last year’s changes to the federal tax code. Maryland also will receive federal matching money. Maryland’s program will be valued at about $462 million in its first year, the governor’s office said. The money will create a pool to provide funding for the biggest claims in the individual market. The program will become active this year and run through 2020, with the potential to be extended through 2023."

H 910 of 2017

Did not pass, withdrawn 

Requires the Maryland Health Benefit Exchange to apply for a Section 1332 waiver to allow persons not lawfully present in the United States to enroll in qualified health plans offered through the Maryland Health Benefit Exchange.

Massachusetts

H 3829 of 2015

 

H 3838 (Governor's)

H 3837 (Sen. substitute)

Passed House and Senate; became law as Chapter 119 of 2015.

 

Waiver draft 2016

 

Waiver posted for public comment 7/24/2017

 

Mass. Chapter 119, sec. 20 of the Acts of 2015. Authorizes state agency "to make applications to the United States Secretary of HHS to waive any applicable provisions of the (ACA) and to implement the state plans of any such waiver in a manner consistent with applicable state and federal laws."

> Separate provision requires the Connector (exchange) Board to submit a report to the Legislature at least 90 days before, and within 10 days after, submitting an application pursuant to Section 1332 of the Patient Protection and Affordable Care Act, to the federal government. The report is to include the intent and purpose of the proposed application and any changes to state law. > Governor Baker vetoed this section 77, and filed an amendment, in H 3838, to reduce the 90 days to 30 days.

Waiver Documents

  • Massachusetts is exploring a multiple reforms, 

    Under Section 1332, Massachusetts proposes to use federal pass through money to provide advance payments to insurers operating cost-sharing reduction plans if federal CSR payments are halted. (or provide an alternative stabilization mechanism.)

  • Require employers who do not insure their employees to make payments to the state – Massachusetts’ employer responsibility laws already follow a different structure than ACA’s and would include smaller employers; and
  • administer small business tax credits, coordinating credits with other Massachusetts small group insurance initiatives.
  • A separate section of the Affordable Care Act (Section 1321(e)) authorizes (only) Massachusetts, which offered state-subsidized coverage through an exchange marketplace enacted in 2006, four years before the ACA became law, to continue several of its earlier initiatives. The state proposes to continue allowing group plans to use some rating factors not otherwise allowable, using Section 1321(e) authority.  This provision could also include modifications to the federal risk adjustment rules. 

    Waiver Documents

  • Draft proposal - "Requests for State Flexibility to Support Commercial Insurance Market Stability and Reforms" July 24, 2017  (51 pp, PDF)
  • Public comment meeting materials - July 2017
  • Detail on Premium Stabilization Fund Request (waiving CSR payments) - June-Sept, 2017

Minnesota

S 1458 of 2015

Enacted into law; signed 5/22/2015

Establishes a Health Care Financing Task Force that will consider "opportunities, including alternatives to MNsure (Medicaid), options under section 1332 of the ACA and options under a section 1115 waiver." 

Filed 2015; Did not pass; adjourned 

[See similar H 1181, H 1939, S 813 & S 1275, not enacted]

H 5  of 2017

 

Enacted; signed into law 4/3/2017 as Chapter No. 13

Waiver filed with HHS -5/5/2017
Waiver approved - 9/22/2017

Creates the Minnesota premium security plan as a state-based reinsurance program administered by the Minnesota Comprehensive Health Association; establishes a legislative working group; regulates health care provider system access; modifies premium subsidy program provisions.

Minnesota filed waiver Application:

MN H 1128H 1401S 1153S 1593  of 2017
 
Filed 2/13/2017

 
Modifies requirements for health insurance underwriting, renewability, and benefits; creates an individual health plan reinsurance program. Includes: ''No insurer may cancel or rescind a health insurance policy for a preexisting condition if if application gave the insurer notice. Premium rates must be no more than ten percent above and no more than 50 percent below the standard rate charged to individuals for the same or similar coverage. Requires a 1332 Innovation waiver be filed with HHS.

MN S 800 of 2017

Passed Senate and House, vetoed by gov., 5/12/2017 Establishes the health and human services budget; requires that before submitting an application for a federal waiver section 1332 or section 1115 to modify or add a benefit covered by medical assistance or otherwise amend the state's Medicaid plan, the state agency seeking the federal waiver or approval must follow legislative requirements.
H 1259 of 2017 Filed 2/15/2017; pending Requires the commissioner of human services to establish and implement a premium subsidy program; establishes a state tax credit for premium payments for qualified individuals; repeals MinnesotaCare; on section 1332 waiver. The commissioner's waiver proposal must seek federal payments to the state equal to the advanced premium tax credits and cost-sharing reductions that qualified individuals receiving state premium subsidies 

MN S 2060 &
S 2089 &
H 2209 &
 S 2163
---------------

H 358 & H 488 of 2017
S 219 & S 220 &
S 223 of 2017

Filed 2015; Did not pass; adjourned 

Filed 1/19/2017; pending

Seeks to establish the "Minnesota Health Plan" a universal, single-payer style plan guaranteeing that all necessary health care is available and affordable for every Minnesotan." All federal funding received by Minnesota including the premium subsidies under the ACA as authorized by the section 1332 state innovation waiver, is appropriated to the Plan.

MN H 2405 &

H 2491 &

S 2541 &

S 2564

Filed 3/8/2016;

Did not pass; adjourned 

The commissioner shall apply for an innovation waiver under section 1332 of the Affordable Care Act, or any other applicable federal waiver to allow persons eligible for MinnesotaCare the option of declining MinnesotaCare coverage and instead accessing advanced premium tax credits and cost-sharing reductions through the purchase of qualified health plans through MNsure

Missouri
H 2539 of 2018
 

SCR 25 of 2017

Filed 2/27/2018; pending

 

4/27/2017;
Did not pass

The director shall apply to the Secretary of Health and Human Services under 42 U.S.C. Section 18052 for a state innovation waiver to implement the Missouri reinsurance plan for benefit years beginning January 1, 2019, and future years, to maximize federal funding for the plan.

Non-statutory resolution  to establish a state innovation waiver task force to develop a health care reform plan that meets the requirements for obtaining a state innovation waiver: 

MO H 780 of 2017

Did not pass.

Establishes a state innovation waiver task force to develop a health care reform plan for applying for a state innovation waiver per section 1332 of the federal act. Includes examining the feasibility of options for providing affordable insurance coverage for uninsured and underinsured individuals in Missouri that include innovations to the State's existing Medicaid program;

Montana
H 652 of 2017

Passed House and Senate; vetoed by governor Authorizes a 1332 innovation waiver to "provide health care and insurance coverage to high-risk individuals in Montana who cannot otherwise obtain ... insurance, using a state reinsurance program, a high-risk insurance pool, or any other program or combination of programs... balancing the need for "affordable rates to eligible persons  with the need to be fiscally responsible to disability insurers and residents of thos state."

Nevada
AB 374 of 2017

Passed House and Senate; vetoed by governor Requires the Department of Health and Human Services, if authorized by federal law, to establish a health care plan within Medicaid for purchase by persons who are not otherwise eligible for Medicaid, sometimes informally termed "Medicaid for all".

New Hampshire

H 469

Enacted; signed into law 7/10/2017 as Ch. 2017-221

 

 

 

 

Waiver draft posted for comment 

Relates to the authority of the insurance department on federal health care reform. The intent ''is to preserve the state's status as the primary regulator of the business of insurance within New Hampshire and the constitutional integrity and sovereignty of the state of New Hampshire under the Tenth Amendment.'' The commissioner may request that the board of directors of the association develop a plan of operation to support the affordability of health insurance in the individual market. The proposal may include resumption of the risk adjustment program, reopening of the high risk pool, creation and operation of a reinsurance program, or other such program. The commissioner is authorized to submit an application on behalf of the state to the US Treasury, and if required, to the US Secretary of Health and Human Services, to waive certain provisions of the Act, as provided in section 1332 of the Act, or any other applicable waiver provision. Establishes a continuous quality improvement program for pharmacies; also authorizes vaccines to be administered by pharmacists.

  • NH 1332 Waiver Application -(Text form PDF, 17 pp.) "New Hampshire’s Proposal to Waive Certain Provisions of the Patient Protection and Affordable Care Act Under Section 1332 of the Act, Waivers for State Innovation" - 
  • This waiver would "implement a state-operated reinsurance program for 2018 and subsequent years. The state would use the interest income from assessments on carriers under NH RSA 404-G to fund the operations of the reinsurance program. The state-based reinsurance program would mitigate rate increases in the New Hampshire individual health insurance market and, as a result, would limit the amount of premium tax credits the federal government is responsible for providing to New Hampshire residents. The benefits of the state-based reinsurance program would be shared by the entire individual health insurance market regardless of income, age, race and ethnic group, or any other demographic characteristic." (p. 3) The reinsurance mechanism, along with the waiver, is estimated to decrease premium rates by approximately 7.3% from what they would have been absent the mechanism and waiver.  As permitted by the ACA, New Hampshire proposes to apply the federal funding that would be paid to New Hampshire consumers absent the state-based reinsurance program. This funding could be combined with ongoing broad-based assessments under NH RSA 404-G to further stabilize the individual market.(p. 6) 

New Jersey
S 1878 of 2018

 

 

Filed 2/8/2018; 
Signed into law, 5/30/2018

Waiver approved by CMS/Treasury,
8/16/2018

*NEW*

Relates to the New Jersey Health Insurance Premium Security Act; establishes health insurance reinsurance plan; relates to stabilizing or reduce premiums in the individual health insurance market by providing reinsurance payments to health insurance carriers with respect to claims for eligible individuals.
    A separate new law to create a state individual mandate (S1877) would require individuals who work for small businesses to enroll in coverage that meets small-group mandates in order to avoid the state's penalty for not having qualifying insurance.

  • HHS and Treasury completed preliminary review of New Jersey’s 1332 state innovation waiver application and determined that it is complete. Read the HHS letter of July 13, 2018.
  • HHS and Treasury on Aug 16, 2018 approved New Jersey’s State Innovation Waiver application under section 1332. New Jersey’s application seeks to implement the New Jersey Health Insurance Premium Security Plan for 2019 through 2023. The CMS approval states, "As a result of the waiver approval, more individuals in New Jersey may have coverage, individuals will see lower premiums, and the state will receive pass-through funding to help offset a substantial portion of State costs for the state-operated reinsurance program. New Jersey  is seeking to waive section 1312(c)(1) of the ACA to the extent that it would otherwise require excluding total expected state reinsurance payments when establishing the market-wide index rate. This approval of New Jersey’s waiver application is effective for January 1, 2019 through December 31, 2023.

New Jersey
A 4945 of 2017

Filed 6/5/2017; pending The "Healthy New Jersey Act," creates the Healthy New Jersey program to provide comprehensive universal single-payer health care coverage and a health care cost control system for the benefit of all residents of the State. The intent is for "the State to work to obtain waivers and other approvals relating to Medicaid, the State's Children's Health Insurance Program, Medicare, the PPACA, and any other federal programs so that any federal funds and other subsidies that would otherwise be paid to the State" would be directed to Healthy NJ. (Sec. 1332 is not identified by name)

New Mexico

SJM 2

 

Filed 2015; passed Senate; Did not pass; adjourned 

Resolution requests the superintendent of insurance to "convene an innovation waiver working group composed of experts in health care delivery, policy and finance as well as related areas;  to analyze the potential, under the auspices of a federal innovation waiver, for designing a comprehensive, sustainable health care system that: A.) addresses the effects of the lack of health insurance, unaffordable health coverage, disparities in access to health care and uncompensated care on New Mexicans; B.) provides for the collection of data and the examination of variations in health care utilization; and C. bends the health care cost curve in the state."

New York
A 4738 of 2017

S 4371 of 2017

S 4840 of 2017

A 4738 passed Assembly, 5/16/2017; held in Senate as of 11/20/2018 Establishes the New York Health program, "a true single-payer program" with a comprehensive system of access to health insurance for residents; existing "programs will be replaced and merged into New York Health, which will operate as a true single-payer program." enacts provisions relating to financing. "The state shall work to obtain waivers and other approvals relating to Medicaid, Child Health Plus, Medicare, the Affordable Care Act, and any other appropriate federal programs.... Under such waivers and approvals, health coverage under those programs will be replaced and merged into New York Health, which will operate as a true single-payer program." (Sec. 1332 is not identified by name)

Ohio

H 64 of 2015

Enacted into law; signed 6/30/2015, as Session Law No. 2015-11

Waiver filed 3/30/2018

Requires the superintendent of insurance to apply to the federal government "for an innovative waiver regarding health insurance coverage in this state as authorized by section 1332 ." It "shall include in the application a request for waivers of the employer and individual mandates." and shall provide for the establishment of a system that provides access to affordable health insurance coverage for the residents.  (Budget Sec. 3901.052).

Waiver Documents - filed March 30, 2018
On March 30, 2018, Gov. Kasich filed the Ohio 1332 waiver with HHS.  (The first to be addressed to Sec. Azar) It completely eliminates the "individual manade" requiring heath insurance coverage, a minor legal step now that federal law eliminated the financial penalty. 

Oklahoma

S 1386 of 2016

 

H 2406 of 2017

Filed 1/2016; Enacted into law; signed 5/16/2016

S 1386, Relates to health insurance; creates a section 1332 State Innovation Waiver; allows for multiple waiver submissions. Establishes procedures for development. Requires entities to submit information for approval. Includes "for the purpose of creating Oklahoma health insurance products that improve health and health care quality while controlling costs."  Authorizes the Insurance Department to review health insurance market after waiver implementation.

H 2406 Enacted into law; signed 6/6/2017

 

Waiver filed with HHS & Treasury 8/16/2017

H 2406, authorizing the establishment of the Oklahoma Individual Health Insurance Market Stabilization Program, the authority for the State to pursue 1332 waivers as well as receive Federal funds, a governing Board of Directors appointed by the Oklahoma Insurance Commissioner, a revenue source through assessments on Oklahoma health insurers, and administrative policies and processes overseeing the State’s reinsurance program.

Oklahoma proposes to implement a reinsurance program beginning 1/1/2018 and continuing into future years in order to rapidly reduce premiums for consumers purchasing coverage on the individual market. The State plans to utilize Federal pass-through funds, coupled with amounts generated by an assessment on health insurers (see Attachment A for House Bill 2406 which defines the insurers to be assessed), to fully or partially reimburse qualified insurers for the claims experience of their high-cost enrollees. The high-cost enrollees are defined as those whose total claims experience in a one year period reaches $15,000, as the State’s attachment point. The State plans to reimburse plans for 80% of the enrollees’ costs between the attachment point and the cap of $400,000. Enrollee costs above the cap, as well as the administration of all claims, will be the responsibility of the insurer. Enrollee costs are determined on an annual, calendar year basis corresponding to the plan year." (Waiver, p 13)

Filed Application to HHS and Treasury:

  • Oklahoma Section 1332 State Innovation Waiver  - External Link Policy - Opens in a new window  - Filed Aug. 16, 2017
  • Correspondence: Notice of Preliminary Determination of Completeness [PDF, 463KB] - Aug. 24, 2017
  • News: Oklahoma withdrew its waiver request saying the federal administration had not approved the waiver despite earlier signaling it would do so by Sept. 25 (see related story). Oklahoma residents will now face 34 percent higher premiums, according to the state.
    Former CCIIO head Joel Ario noted in Health Affairs, "Federal officials have yet to explain their abrupt change of course and likely will claim that they simply ran out of time. But those of us who have worked closely with the four states who have submitted reinsurance waivers know a different story. We know that two of those states--Alaska and Minnesota--have been approved for waivers closely resembling Oklahoma’s proposal: documenting the federal savings that accrue when state-based reinsurance programs cut premiums and reduce federal tax credit outlays, and then receiving those savings as a federal pass-through to partially offset the costs of the state reinsurance program,”  [posted 10/2/2017]
OK S 1162  of 2018 Filed 1/2018; passed Senate 3/14/2018

Relates to insurance; seeking approval of a waiver provided by a 1332 State Innovation Waiver, authorizing federal funding to support market stabilization program payments.

Oregon

H 2391 of 2017
Statenet link: H 2391

H 2391 enacted into law 2017, 7/3/2017

Waiver filed 8/31/2017

Approved 10/19/2017 -*NEW*

This request seeks waiver of Section 1312(c)(1) under Section 1332 of the ACA for a period of five years beginning in the 2018 plan year to develop a state reinsurance program. This waiver will not affect any other provision of the ACA, but will result in a lower marketwide index rate, thereby lowering premiums and reducing federal payment of advance premium tax credits (APTC). Provides that ''The Department of Consumer and Business Services shall have sole authority to apply for a waiver for state innovation under 42 U.S.C. 18052." (same as Sec 1332)'

  • Application: Oregon Section 1332 State Innovation Waiver filed 8/31/2017
  • Approved: Approval notification, received 10/19/2017
    (Excerpt): "The Departments have determined that implementation of this reinsurance program will lower
    individual market premiums in the state and the premium tax credits (PTC) to which Oregon
    residents would have been entitled absent the waiver. These PTC savings will be passed through
    to the state to be used for implementation of the waiver plan." 
    Summary: "Oregon will reinsure 50 percent of claims, in excess of an attachment point to be determined, up to $1 million.

    Oregon is financing part of its program through a 0.3 percent tax on major medical premiums but projects that the program will reduce premiums by 7.5 percent in 2018, 7 percent in 2019, and 6.4 percent in 2027 compared to what premiums would have been without the waiver. The waiver approval does not state how much federal money will be passed through to Oregon from reduced federal payments for premium tax credits and cost-sharing reductions to assist in paying for the program." (By Tim Jost, Health Affairs 10/19/2017)

Public comment period, ends Oct 11, 2017  
Correspondence: Notice of Preliminary Determination of Completeness [PDF, 443KB] 

Rhode Island

RI H 5900

 

 

RI H 7381and
S 2824

Enacted into law; Signed 6/30/2015

1332 Waiver authorization.   [excerpt of text] 42-157-5. Regional purchasing, efficiencies, and innovation. To take advantage of economies of scale and to lower costs, the (state health) exchange is hereby authorized to pursue opportunities to jointly negotiate, procure or otherwise purchase exchange services with or partner with another state or multiple states and to pursue a Federal Affordable Care Act 1332 Waiver. 

[Also see RI H 7381, and RI S 2824, single-payer proposals; did not pass; adjourned]

RI S 831 of 2017

Pending; passed Senate 6/6/2017

 

Adopts the Health Insurance Market Stabilization and Consumer Protection Act of 2017; updates state law to reflect current  (Jan. 2017) insurance standards, practice and regulation to maintain market stability. If the ACA is altered or repealed "then those in effect as of the date immediately prior to their repeal shall control."

RI H 6082 of 2017

Filed 4/6/2017; passed House, 6/14/2017

Would authorize the Rhode Island health benefit exchange to "shall" seek a waiver under Sec 1332 of the ACA to allow qualified small business owners and sole proprietors to purchase qualified health benefit plans offered by the exchange and not be forced into the individual market. This act would take effect upon passage, ''in an effort to reduce and/or eliminate the irreparable economic harm.''

South Carolina

H 3020

Filed 12/11/14; did not pass; adjourned

Sought to enact the ACA Anti-Commandeering Act; provides that a public official, officer, or employee of a public body must not participate in the establishment of a health insurance exchange or enforce or aid in the enforcement of the individual and employer health insurance mandates. It also provides, "nor does this act limit the South Carolina Department of Health and Human Services' ability to apply for, request, or otherwise develop innovation waivers as set forth in Section 1332 of the ACA."

South Dakota

S 50 of 2017

failed, 2/27/2017

Authorizes the submission of an application for a 1332 state innovation waiver regarding health insurance, including provisions for a market that provides access to affordable health insurance coverage for the residents of this state

Texas

SB 200 of 2015

Enacted into law; signed 6/17/2015 as Ch. 837

The Texas Health and Human Services Commission “shall develop and implement a comprehensive, coordinated operational plan to ensure a consistent approach across the major quality initiatives of the health and human services system for improving the quality of health care. (b) The operational plan developed under this section must include broad goals for the improvement of the quality of health care in this state, including health care services provided through Medicaid. (c) The operational plan under this section may evaluate: the Delivery System Reform Incentive Payment (DSRIP) program under the Texas Health Care Transformation and Quality Improvement Program waiver issued under Section 1115 of the federal Social Security Act (42 U.S.C. Section 1315), enhancing funding to disproportionate share hospitals in the state, Section 1332 of 42 U.S.C. Section 18052, enhancing uncompensated care pool payments to hospitals in the state under the Texas Health Care Transformation and Quality Improvement Program waiver issued under Section 1115...

Texas:
S 1406 of 2017

 

 

S 2087 of 2017

Filed 3/7/2017; Enacted into law, signed 6/15/2017, Ch. 106 of 2017

 

Filed 3/10/2017; Enacted into law; signed 6/12/2017, Ch. 765

Establishes that the commissioner of insurance may apply to and negotiate with the US HHS secretary to obtain a waiver under 42 U.S.C. Section 18052 for small employer health benefit plans of the actuarial value requirements and related levels of health plan coverage requirements imposed under the ACA .

 

 

Allows the establishment of a temporary health insurance risk pool to provide a temporary mechanism for maximizing available federal funding to assist residents of this state in obtaining access to quality health care at minimum cost to the public.

Sec. 1510.008. WAIVER. (a)The commissioner may apply to the United States secretary of health and human services: (1)under 42 U.S.C. Section 18052 for a waiver of applicable provisions of the Patient Protection and Affordable Care Act (Pub. L. No.A111-148) and any applicable regulations or guidance; or (2)under any applicable provision of federal law enacted on or after May 1, 2017, for a waiver of applicable provisions of any federal law, regulations, or guidance with respect to health insurance coverage consistent with Section 1510.003. (b)The commissioner may take any action the commissioner considers appropriate to make an application under this section. (c)The commissioner may implement a state plan that meets the requirements of a waiver granted in response to an application under Subsection (a) if the plan is: (1) consistent with state and federal law; and (2) approved by the United States secretary of health and human services. Sec.A1510.009.

Vermont

H 524

 

(See 2016 below)

Filed 1/6/2016; Enacted into law; signed Act 67, 2/29/2016.

Waiver filed with HHS and Treasury 6/9/2016

H 524 Directs the Commissioner of the State Health Access to seek a Section 1332 federal waiver that would permit state businesses to continuing purchasing State Health Benefit Exchange plans directly from the health insurance carriers.

Vermont
H 875 of 2016

Enacted; signed into law 6/8/16

2017 appropriations bill; includes provision that the Secretary of Administration is required to "analyze the financial implications of expanding Dr. Dynasaur, the State's children's Medicaid and Children's Health Insurance Program, to all Vermont residents up to 26 years of age. The Secretary may contract with other individuals and entities as needed to provide actuarial services, economic modeling, and any other assistance the Secretary requires in carrying out the analysis, using "opportunities and challenges presented by federal law, including the Internal Revenue Code; Section 1332" of the ACA, Medicaid and SCHIP and by State tax law."

Vermont

H 88 of 2015

 

 

 


VT H 28 of 2017

Filed 1/22/15; did not pass; adjourned

Proposes to create a public health care coverage option, called Vermont Care, to be offered through the Vermont Health Benefit Exchange. State premium assistance would be available only for individuals enrolled in Vermont Care. The bill would remove health care from the list of topics on which public employees may bargain collectively and provide health coverage for those individuals through Vermont Care. The bill would enact an individual responsibility requirement to have health care coverage and establish a payroll tax. "On or before Jan. 1, 2016, the secretary of human services shall apply for a Waiver for State Innovation pursuant to Sec. 1332."

Filed 1/10/2017; pending 8/29/17

(H 28) Proposes to create a public option for health care coverage that would be available to all Vermont residents and employers and would be publicly funded. It would remove health insurance benefits from the provisions subject to bargaining for public employees who are subject to a collective bargaining agreement and instead specify that employees who wish to have health insurance coverage would be covered under the public option.

VT S 103 H 447 of 2016

Did not pass; adjourned

H 447: Relates to establishing the Vermont Hospital Security Plan and Trust Fund from which a negotiated payment would be made to each hospital for health services provided. 

S 103: Relates to increasing exchange subsidies up to 400 percent of the federal poverty guideline for cost-sharing assistance and to developing a proposal for universal health care by 2018.

Virginia
S 964 of 2018
 
Passed Senate and House, sent to governor, 3/9/2018 Relates to health insurance; provides that a catastrophic health plan, notwithstanding that it does not provide a bronze, silver, gold, or platinum level of coverage, shall be deemed to provide an essential health benefits package as defined meet certain requirements; provides that a health carrier may offer catastrophic plans on the individual market.

Washington
S 6488

Passed Senate; did not pass House; adjourned 2016

Directs the health care authority to apply for a 1332 federal innovation waiver to expand an employer-based coverage option with a portable health care account.

Wisconsin
S 770

*NEW*

Passed Senate & House; signed 2/27/2018 as Act No. 138.

Waiver approvd 7/29/2018.
*NEW*

Establishes the Healthcare Stability Plan; with a program for reinsurance of health carriers (with a goal of controlling premium price increases); reallocates savings from the health insurer fee; authorizes use some funds ''for the state subsidy of reinsurance payments for the reinsurance program; in addition Federal funds referenced as ''All moneys received from the federal government for reinsurance for the purposes for which received.'' Authorizes a state request to the federal HHS for one or more waivers under 42 USC 18052 (sec. 1332) to implement the healthcare stability plan.  In addition, claims-based reinsurance, including a Medicaid savings program was enacted in 2017

On April 18, 2018, Wisconsin submitted a State Innovation Waiver application. The Departments (HHS, Labor, Treasury) determined that the application was complete on May 9, 2018. The Departments requested comments on Wisconsin’s Waiver as part of the federal public comment period, through June 8, 2018. The letter that CMS issued July 29 informs Wisconsin that the Waiver under section 1332 of the ACA is approved, subject to the state’s acceptance of the specific terms and conditions (STCs) in the letter.
Application: Wisconsin Section 1332 State Innovation Waiver.

HHS Correspondence: Notice of Preliminary Determination of Completeness [PDF, 455KB]    May 9, 2018

Wyoming
S 88 of 2018
Filed 2/12/2018; did not pass See description in 2018 - Table 1
  Powered By StateNet

The Federal Law: Section 1332: Requirement for a State Statute [Excerpts]

The federal statute requires the filing and passage of state legislation that includes:

        (a)(1)(B)(i) “a comprehensive description of the State legislation and program to implement a plan...”

A separate subsection specifies a new state law, or an existing law that is inclusive of all major provisionin a new state waiver application.
        (2)(D)(b) GRANTING OF WAIVERS
. . . .
        (2) REQUIREMENT TO ENACT A LAW

        (a) IN GENERAL

        A law described in this paragraph is a State law that provides for State actions under a Waiver under this section, including the implementation of the State plan under subsection (a)(1)(B).

See associated federal regulations.3


Analysis from The Commonwealth Fund

(2016) Researchers for the Commonwealth Fund, who work in collaboration with NCSL, published an updated examination of how, when and if, “these waivers may propose broad alternatives or targeted fixes to a number of the ACA's private insurance provisions, so long as they stay true to the law’s goals and consumer protections.”  The Fund's 1332 Waiver Blog: is titled "Innovation Waivers and the ACA: As Federal Officials Flesh Out Key Requirements for Modifying the Health Law, States Tread Slowly." It was written by Kevin Lucia, Justin Giovannelli, Sean Miskell and Ashley Williams and posted Feb. 17, 2016. 

 State Waivers of the ACA’s Private Health Insurance Rules: Key Requirements [Exhibit 1, Compiled by The Commonwealth Fund]

Requirement

What Does It Mean?

1. Enrollment
Waiver program must provide coverage to a comparable number of state residents as would receive coverage without it

Waiver program must cover at least as many individuals as the ACA, in every year of the program. Federal officials will consider the impact of the program on all state residents, as well as its effects across different groups of residents. This review will focus on vulnerable populations, including those with low incomes, the elderly, and those with serious health issues.

2. Affordability
Waiver program must provide coverage and cost-sharing protections against excessive out-of-pocket spending that are as affordable as would be provided without it

Affordability is measured by reference to residents’ net out-of-pocket spending, including premium contributions, cost-sharing, and spending on noncovered services. Federal officials will consider both the average impact of the program and how it affects individuals with large health care spending burdens. Review also will focus on vulnerable populations.

3. Comprehensiveness
Waiver program must provide coverage that is as comprehensive as would be provided without it

Waiver program must not decrease the number of individuals with coverage that satisfies the ACA’s essential health benefits requirements or the number of individuals with coverage that includes the services covered under the state’s Medicaid and CHIP programs. Federal officials will consider the impact of the program on all state residents, as well as its effects across different groups of residents. This review will focus on vulnerable populations.

4. Deficit Neutrality
Waiver program must not increase the federal deficit

Waiver program must be federal deficit neutral in each year of the waiver and over a 10-year budget period. This analysis must account for the budget effect of all changes in federal income and spending resulting from the waiver, while holding the state’s Medicaid policies constant. That is, any budget effects produced by changes to the state’s Medicaid program from a Medicaid section 1115 waiver will not be considered when evaluating the 1332 waiver.

HHS Source: U.S. Department of the Treasury and U.S. Department of Health and Human Services, “Waivers for State Innovation,” 80 Fed. Reg. 78131, Dec. 16, 2015.

Endnotes.

1- NCSL Blog, "Innovation Waivers: Can Your State Change the Health Law?" - full text, April 1, 2016

2 - Section 1332 Waiver Activity Heating Up In States (Update: New CMS Hub) - Heather Howard and Galen Benshoof. Health Affairs BlogJune 24, 2015

3 - U.S. Department of the Treasury and U.S. Department of Health and Human Services, “Waivers for State Innovation,” 80 Fed. Reg. 78131, Dec. 16, 2015.

About the author: Richard Cauchi is an NCSL health program director covering health insurance, reforms and health finance.

Additional Resources

  • NCSL Material featured: "1332 Waivers Spark Hot Interest as Tools For Bipartisan Reform of U.S. Health Care. In the turbulent waters of the post-repeal-and-replace efforts...Section 1332 waivers under the Affordable Care Act (ACA) are beginning to beckon with more promise than ever before, insiders say.“ NCSL material and insights are featured in detail. [password required; members: request detailsHealth Plan Week, 9/18/2017
  • State Innovation Waivers: Frequently Asked Questions - (9 pp., PDF; published by the Congressional Research Service (CRS), Aug. 17, 2017   *NEW*
  • "Innovation Waivers: Can Your State Change the Health Law?"  NCSL Blog, April 1, 2016
  • The Commonwealth Fund's 1332 Waiver Blog: "Innovation Waivers and the ACA: As Federal Officials Flesh Out Key Requirements for Modifying the Health Law, States Tread Slowly." By Kevin Lucia, Justin Giovannelli, Sean Miskell and Ashley Williams; Posted 2/17/2016.
  • Explanation of Federal waivers: [download presentation] by Cindy Mann (former director of Medicaid at CMS, 2010-2015) to NCSL meeting,12/8/2015
  • GAO:
  • The 1332 “Innovation Waivers from HHS/CMS/The Center for Consumer Information & Insurance Oversight (CCIIO)

About the 1332 State Innovation Waiver Application Process

States have the option to seek a State Innovation Waiver under Section 1332 of the Affordable Care Act to pursue innovative strategies to provide high quality, affordable health care coverage while retaining the statute’s basic protections. The U.S. Department of Health and Human Services (HHS) and the U.S. Department of the Treasury are responsible for reviewing waiver applications.

States may submit State Innovation Waiver applications to stateinnovationwaivers@cms.hhs.gov.

Public Input Process Prior to Submission of an Application

Prior to submitting a State Innovation Waiver application to HHS for review and consideration, a state must provide public notice and a comment period sufficient to ensure a meaningful level of public input on the application.  During the public comment period, the state must conduct public hearings regarding the state’s application.  In addition, a state with one or more federally recognized tribes within its borders must conduct a separate process for meaningful consultation with the tribes as part of the notice and comment process.

Application Requirements

The final regulations specify what information needs to be included in an application for a State Innovation Waiver.  Critical elements of that application include (but are not limited to):

  • The list of provisions the state seeks to waive, including the rationale for the specific requests;
  • Data, assumptions, targets, and other information sufficient to determine that the proposed waiver will provide coverage that is at least as comprehensive as would be provided absent the waiver, will provide coverage and cost sharing protections that keep care at least as affordable as would be provided absent the waiver, will provide coverage to at least a comparable number of residents as would be provided coverage absent the waiver, and will not increase the Federal deficit;
  • Actuarial analyses and actuarial certifications to support State estimates that the waiver will comply with the comprehensive coverage requirement, the affordability requirement, and the scope of coverage requirement;
  • A detailed 10-year budget plan that is deficit neutral to the Federal government;
  • A detailed analysis of the impact of the waiver on health insurance coverage in the state;
  • A description and copy of the enacted state legislation providing the state authority to implement the proposed waiver; and,
  • A detailed plan as to how the state will implement the waiver, including a timeline.
    • The regulations provide more detail about each of the application elements and should be consulted carefully as states develop applications.
    • HHS may also request, or a state may propose, additional information to aid in the review of the application
  • Complex Rules for 1332 Waivers Could Limit Applications.   The Government Accountability Office (GAO) issued a letter [full text, 13 app] describing that while some states continue to explore tweaking the ACA rules and standards under the so-called Section 1332 waiver process, the way federal rules are written may reduce actual applications to do so. The letter, made public on Aug. 8 and titled "Patient Protection and Affordable Care Act: Information on Approval Process for State Innovation Waivers, GAO-16-637R," said, "Stakeholder groups representing state Medicaid and exchange officials told us that...they believe HHS's and Treasury's application review controls and their operational considerations may considerably limit state waiver proposals."


About the author: Richard Cauchi is an NCSL health program director covering health insurance, reforms and health finance.

Concerns a Sec 1332 waiver of federal law to permit insurance carriers to offer catastrophic health plans to any individual residing in the state; directs the Commissioner of Insurance to conduct an actuarial analysis to determine if the sale of catastrophic health plans to persons of a certain age who do not meet a hardship requirement would result in a reduction in the total amount of advanced premium tax credits received by state residents or would increase the average premiums of individual health plans.