On July 15, 2019, CMS released new resources, which are available here, that are intended to support states as they apply for waivers under Section 1332 of the Affordable Care Act. These materials follow guidance issued by CMS and Department of the Treasury in October 2018 that provided states with expanded flexibility with respect to how a state plan may meet the standards for obtaining a waiver under Section 1332. The tools include papers focused on four waiver concepts paired with model templates, which are designed to assist states with the preparation and submission of waiver applications. In addition, CMS released an application checklist and a general overview of the new resources.

Section 1332 provides HHS and the Department of the Treasury (the Departments) with the authority to approve a state’s proposal to waive specific ACA requirements, provided that the state plan meets certain requirements. Such waivers are presently known as State Relief and Empowerment Waivers (formerly referred to as State Innovation Waivers) and are intended to permit states to pursue innovative strategies to stabilize the risk pool. In order for the Departments to exercise their waiver authority, they must determine the proposal will provide access to health insurance coverage that is at least as comprehensive and affordable as would be provided under the ACA absent a waiver, will provide coverage to at least a comparable number of the state’s residents as would be provided absent a waiver, and will not increase the federal deficit. In assessing waiver applications, the Departments consider how the proposal may advance certain principles by: increasing access to affordable private market coverage; encouraging sustainable spending growth; fostering state innovation; supporting and empowering those in need; and promoting consumer-driven healthcare.

The new waiver concept papers track the four concepts that CMS outlined in a November 2018 Discussion Paper, which is available here. The papers are intended to make each of the following topics more understandable to state policy makers and the general public:

• State Specific Premium Assistance: Enables a state to design a subsidy structure that meets the unique needs of its population in order to provide more affordable healthcare options to a wider range of individuals, attracting more young and healthy consumers into the market, or addressing certain structural issues.

• Adjusted Plan Options: Allows a state to provide state financial assistance for non-Qualified Health Plans (non-QHPs), allowing non-QHPs to be sold on the existing Exchange, expanding the availability of catastrophic plans beyond current eligibility limitations, applying the ACA’s premium tax credit to catastrophic plans and potentially certain non-QHPs sold on the Exchange, among other approaches.

• Account-Based Subsidies: Enables a state to direct state-administered subsidies into a defined-contribution, consumer-directed account that an individual uses to pay health insurance premiums or other health care expenses. This concept would require the state to design and implement a new state-administered subsidy structure to fund the account, which can be done through the State Specific Premium Assistance waiver concept.
• Risk Stabilization Strategies: Allows a state to consider ways to address the costs of individuals with expensive medical conditions to mitigate the impact of those expenses on people who purchase coverage in the individual market.

For each waiver concept, CMS has provided a corresponding waiver template that outlines the sections and topics that must or should be addressed in a waiver application. The templates include instructions and notes that highlight key issues and sample language designed to guide states in the development of the narrative part of their application. The templates are designed to accommodate a wide variation of approaches to each waiver concept. The use of a template is optional and does not guarantee that a state’s application for a waiver will be approved.

The waiver application checklist itemizes the required elements of a waiver application and includes citations to the applicable regulatory provisions that each element satisfies. The checklist also identifies where certain information should be submitted for applications that are specific to one of the four waiver concepts.