Trump Administration Makes It Easier For States To Sidestep ACA Rules

The Centers for Medicare & Medicaid Services and the U.S. Department of the Treasury issued new guidance so states can move their insurance markets away from the Affordable Care Act's rules and regulations.

The goal is to  increase choice and competition within the states' insurance markets, CMS said in a news release.

The new guidance grants states more flexibility to design alternatives to the ACA and to give Americans more options to get health coverage that better meets their needs, CMS said. Under this new policy, states will be able to pursue waivers to improve their insurance markets, increase coverage options for their residents, and ensure that people with pre-existing conditions are protected. These waivers are called State Relief and Empowerment Waivers.

With this guidance, states will be able to develop approaches to increase consumer control and expand choice and competition in their markets. In addition to this guidance, CMS is also preparing to release waiver concepts to help spur conversations and ideas with states, and illustrate how states might take advantage of this opportunity to move beyond the ACA.

Federal law, under Section 1332 of the ACA, authorizes states to waive certain provisions of the law so long as the new state waiver plan meets specific criteria, or “guardrails,” that help guarantee people retain access to coverage that is at least as comprehensive and affordable as without the waiver, covers as many individuals, and is deficit neutral to the federal government.

However, guidance issued under the Obama administration in 2015 limited the types of state waiver proposals that the federal government would approve. To date, these limitations have effectively restricted state waivers to just one type, a reinsurance waiver.

Today's guidance outlines five principles for states to follow as they work to develop new approaches. Moving forward, state waivers should aim to: 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.

A fact sheet on today’s guidance can be found here: https://www.cms.gov/CCIIO/Programs-and-Initiatives/State-Innovation-Waivers/Downloads/SRE-Waiver-Fact-Sheet.pdf

The guidance on State Relief and Empowerment Waivers can be found here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2018-23182.pdf 

and on 10/24/2018 available online at https://www.federalregister.gov/documents/2018/10/24/2018-23182/state-relief-and-empowerment-waivers