Date: 3/14/18 2018 Spring National Meeting Milwaukee, Wisconsin HEALTH CARE REFORM REGULATORY ALTERNATIVES (B) WORKING GROUP Saturday, March 24, 2018 3:30 5:00 p.m. Wisconsin Center Room 103ABC First Floor ROLL CALL Ted Nickel, Chair Wisconsin Kristine Maurer/Gale Simon New Jersey Roger A. Sevigny, Vice Chair New Hampshire Troy Oechsner New York Lori K. Wing-Heier Alaska Jon Godfread North Dakota Susan Jennette Delaware Mark O. Rabauliman N. Mariana Islands Craig Wright Florida James Mills Oklahoma Kathy McGill Idaho Katie Dzurec Pennsylvania Paulette Dove Illinois Kendall Buchanan South Carolina Greta Hockwalt Indiana Melissa Klemann South Dakota Doug Ommen Iowa Michael Humphreys Tennessee Julie Holmes Kansas Jan Graeber Texas Robert Wake Maine Tanji Northrup Utah Chlora Lindley-Myers Missouri Osbert E. Potter Virgin Islands Matthew Rosendale Montana Molly Nollette Washington Martin Swanson Nebraska Tom Glause Wyoming Mackay Moore Nevada NAIC Support Staff: Jolie H. Matthews AGENDA 1. Consider Adoption of its Nov. 27 and Nov. 13, 2017, Minutes J.P. Wieske (WI) 2. Hear a Federal Center for Consumer Information & Insurance Oversight (CCIIO) Presentation on Section 1332 Waivers and Other State Innovation Options Randy Pate (CCIIO) 3. Hear Updates on, and Status of, the States Federal Affordable Care Act (ACA) Section 1332 Waiver Activity J. P. Wieske (WI) 4. Discuss Any Other Matters Brought Before the Working Group J. P. Wieske (WI) 5. Adjournment W:\National Meetings\2018\Spring\Agenda\HCRRAWGrev.docx 2018 National Association of Insurance Commissioners 1
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Agenda Item #1 Consider Adoption of its Nov. 27 and Nov. 13, 2017 Minutes J.P. Wieske (WI)
Attachment Health Insurance and Managed Care (B) Committee 3/25/18 Draft: 1/10/18 Health Care Reform Regulatory Alternatives (B) Working Group Conference Call November 27, 2017 The Health Care Reform Regulatory Alternatives (B) Working Group of the Health Insurance and Managed Care (B) Committee met via conference call Nov. 27, 2017. The following Working Group members participated: Ted Nickel, Chair, represented by J.P. Wieske (WI); Roger A. Sevigny, Vice Chair, represented by Jennifer Patterson (NH); Sarah Bailey (AK); Susan Jennette (DE); Chris Struk (FL); Kathy McGill (ID); Andria Seip (IA); Eric Anderson (IL); Karl Knable (IN); Craig Van Aalst (KS); Robert Wake (ME); Angela Nelson and Mary Mealer (MO); Michael Kakuk (MT); Martin Swanson (NE); Brendan Peppard (NJ); Barbara D. Richardson and Mackay Moore (NV); Alice McKenney (NY); Mike Rhoads (OK); Katie Dzurec (PA); Kendall Buchanan (SC); Melissa Klemann (SD); Jan Graeber (TX); Tanji Northrup (UT); and Molly Nollette (WA). Also participating were: Kristi Bohn (MN); and Paige Duhamel (NM). 1. Discussed Recommendations for Revising ACA Section 1332 Waiver Application Requirements The Working Group continued its discussion of specific recommendations the Working Group might want to consider to include in its letter to the U.S. Department of Health and Human Services (HHS) to revise the federal Affordable Care Act (ACA) Section 1332 waiver application requirements to streamline process and provide more flexibility to the states. Mr. Wieske said the next recommendation for discussion relates to the requirement in the federal regulations that a completed Section 1332 waiver application shall include a copy of the enacted state legislation providing the states with authority to implement the proposed waiver. He said the issue with this requirement is that, in some states, requiring specific waiver legislation is an obstacle to obtaining a waiver. Mr. Wieske also noted that each state is different. Some states already have sufficient authority and may not need to enact specific legislation. The Working Group discussed this issue. Several Working Group members suggested that if a state insurance regulator or a state s governor has broad authority to implement the proposed waiver without enacting specific legislation, then this should be sufficient. The states need this flexibility. Timothy Stoltzfus Jost (Virginia Organizing) said ACA Section 1332 requires a state to have legal authority for the state action contemplated under the waiver. He suggested the Working Group s recommendation should include a suggestion that HHS read a state s statutory authority broadly such that a state s existing legal authority could meet the requirements under Section 1332. Ms Seip said that, as part of its Section 1332 waiver application, Iowa adopted regulations to meet the requirement because Iowa already had the necessary statutory authority. Ms. Duhamel said HHS raised concerns when New Mexico pursued a similar track as Iowa. After additional discussion, the Working Group decided to include in its recommendations to HHS that it not require a state to enact specific legislation prior to submitting a Section 1332 waiver application, but instead accept a state s insurance commissioner s or governor s approval and commitment to the waiver efforts. The Working Group also agreed to point out to HHS that some states prohibit statutory language that would make a state action contingent on a particular situation; meaning, the state cannot enact legislation that says the state will move forward with a particular course of action if the waiver is approved, but will not move forward with a particular course of action if the waiver is denied. The Working Group next discussed the federal regulatory and statutory requirements that a state submit an economic analysis with its Section 1332 waiver application that includes a 10-year budget plan for the waiver, illustrating that it is budgetneutral for the federal government. The Working Group discussed its concerns with this requirement, particularly that 10 years is significantly beyond the five-year waiver approval time frame. The Working Group decided to include in its recommendations to HHS that HHS provide flexibility in this area because forecasting budget neutrality five years beyond the time frame of the waiver adds to the cost and time it takes for a state to prepare its waiver application. In addition, the Working Group decided to recommend that the number of years of the budget plan be reduced to align with the number of years the waiver is approved for, which currently, is five years. The Working Group noted that such a recommendation would be consistent the President Donald Trump s Jan. 20 Executive Order. The Working Group next discussed state-level public notice, comment period and hearing federal regulatory requirements. Mr. Wieske said it appears that the federal regulations require a state-level notice and comment period and public hearing on 2018 National Association of Insurance Commissioners 1
Attachment Health Insurance and Managed Care (B) Committee 3/25/18 the state s draft Section 1332 waiver application. He said there needs to be more flexibility for the states to permit a state to receive public input on its Section 1332 waiver application prior to submitting it to HHS and while the application is pending. Sarah Lueck (Center on Budget and Policy Priorities CBPP) agreed that it is important for the states to receive public input while developing a Section 1332 waiver application. She said it is also important for the states to receive such input at the end of the application development process, when the application is complete or substantially completed, prior to the state submitting it to HHS for review and approval. Mr. Wieske pointed out that the federal regulations require HHS to provide a public notice and comment period for public input on the completed application after it determines a state s Section 1332 waiver application is complete. He said the states should be given the flexibility to determine meaningful public input. HHS should not be able to make such a determination alone. Ms. Bohn said that if a state decides to enact specific legislation regarding its proposed Section 1332 waiver application, the public comment and hearings on such legislation should be considered as satisfying the state s public notice and comment period and public hearing requirements. Mr. Wieske agreed with Ms. Bohn. He noted that this would vary from state-to-state, depending on whether a state needs to enact specific legislation or adopt regulations. After additional discussion, the Working Group decided to include in its recommendations that HHS clarify that a state s efforts to solicit public comment and hold public hearings on waiver-related issues at any stage of preparing its Section 1332 waiver application, including before the application is actually drafted, and throughout the process should count toward the state-level public notice and comment period and public hearing requirements. In addition, the Working Group agreed to include, for those states seeking to enact legislation related to a Section 1332 waiver, the legislative process in deliberating the legislation, which includes public hearings and public comment periods, should be deemed sufficient in meeting the state-level public notice and comment and public hearing requirements. With respect to HHS public notice and comment and hearing requirements after a state s Section 1332 waiver application has been determined complete, the Working Group decided to include in its recommendations that this federal-level public notice and comment should begin seven days after HHS receives an application, or some other appropriate time frame that is minimal, because any delay in soliciting public comments would add additional unnecessary time onto the overall application process. Mr. Wieske said NAIC staff would develop a draft letter with the Working Group s recommendations based on its discussion during this conference call and its Nov. 13 conference call for the Working Group s review and discussion during a regulatorto-regulator conference call. Having no further business, the Health Care Reform Regulatory Alternatives (B) Working Group adjourned. W:\National Meetings\2018\Spring\Cmte\B\HCRRAWG\HCRRAWG 11-27-17 ConfCallmin.docx 2018 National Association of Insurance Commissioners 2
Attachment Health Insurance and Managed Care (B) Committee 3/25/18 Draft: 1/3/18 Health Care Reform Regulatory Alternatives (B) Working Group Conference Call November 13, 2017 The Health Care Reform Regulatory Alternatives (B) Working Group of the Health Insurance and Managed Care (B) Committee met via conference call Nov. 13, 2017. The following Working Group members participated: Ted Nickel, Chair, represented by J.P. Wieske (WI); Roger A. Sevigny, Vice Chair, represented by Jennifer Patterson (NH); Susan Jennette (DE); Chris Struk (FL); Kathy McGill (ID); Andria Seip (IA); Paulette Dove (IL); Alexandria Peck and Karl Knable (IN); Julie Holmes (KS); Bob Wake (ME); Angela Nelson and Amy Hoyt (MO); Michael Kakuk (MT); Martin Swanson and Laura Arp (NE); Brendan Peppard (NJ); Mackay Moore (NV); Stephen Wiest (NY); Cuc Nguyen, Buddy Combs and Mike Rhoads (OK); Katie Dzurec (PA); Kendall Buchanan (SC); Melissa Klemann (SD); Rachel Jrade-Rice (TN); Jan Graeber (TX); Jaakob Sundberg (UT); Molly Nollette (WA); and Denise Burke (WY). 1. Discussed Recommendations for Revising ACA Section 1332 Waiver Application Requirements Mr. Wieske suggested the Working Group review and discuss the chart NAIC staff distributed prior to the conference call outlining specific recommendations the Working Group might want to consider to include in its letter to the U.S. Department of Health and Human Services (HHS) to revise the federal Affordable Care Act (ACA) Section 1332 waiver application requirements to streamline and provide more flexibility to the states. He reiterated his intent for the Working Group to complete a draft letter to the HHS and refer it to the Government Relations (EX) Leadership Council for its review and approval before the end of the year. Beginning with the first topic, HHS decision-making period, Mr. Wieske said ACA Section 1332(d)(1) requires the secretary of HHS to make a determination on a waiver application no later than 180 days after the receipt of the application. He said the federal regulations implementing ACA Section 1332(d)(1) start the 180-day period after the secretary of HHS completes a preliminary review, which could last up to 45 days, to determine the application is complete. He said the federal regulations appear to add an additional 45 days to the 180-day statutory waiver application determination period. Mr. Wieske said this could be addressed by: 1) starting the 180-day window on the day the HHS receives a state s waiver application; 2) setting a shorter HHS review period, such as 60 days or 90 days, and permit the HHS to extend the review period under certain circumstances; or 3) establishing a fast-track 45-day approval process for waivers submitted in response to an urgent situation, such as bare counties or excessive premium increases or for waivers that are the same or substantially similar to a waiver approved in another state. Ms. Nollette echoed Mr. Wieske s concerns with the length of the review period, particularly as to the current application review process not providing sufficient time for a state to review premium rates for the upcoming plan year. She said the federal Centers for Medicare and Medicaid Services (CMS) should be able to conduct a preliminary review of a state s waiver application or parts of the application during the 180-day review period, instead of adding 45 days to determine whether an application is complete. Ms. Dzurec agreed. Ms. Seip also expressed support for Mr. Wieske s comments about the length of the review. She said Iowa submitted a draft waiver application in June and then submitted its final waiver application in August. Iowa, however, did not receive any comments or concerns related to its draft waiver application submitted in June until September. Mr. Combs said Oklahoma s experience with the waiver application process was similar to Iowa s, in that CMS did not appear to have any sense of urgency in making a determination on its waiver application. Ms. Patterson agreed with the comments and expressed support for including in the recommendations that CMS establish an emergency waiver review process. Candy Gallaher (America s Health Insurance Plans AHIP) agreed that the current waiver application process has issues. She also agreed there is a need for an expedited waiver application process under certain circumstances. Ms. Gallaher said the Working Group may have to define what circumstances would meet the requirement for the emergency waiver application process. Mr. Knable suggested that CMS should provide guidance to the states on what types or kinds of waivers can be fasttracked. Ms. Arp agreed. 2018 National Association of Insurance Commissioners 1
Attachment Health Insurance and Managed Care (B) Committee 3/25/18 The Working Group discussed further what it should include in its recommendations with respect to the existing 45-day review process to determine an application s completeness in the federal regulations and with respect to establishing an expedited application process. Mr. Struk expressed concern with other states being able to jump ahead of others when using the expedited process. Mr. Wieske asked about including a suggestion for amending the federal regulations to permit a state to convert its application from a standard waiver application to an emergency waiver application. After additional discussion, the Working Group decided preliminarily to include the following recommendations in its letter to the HHS: 1) eliminate the 45-day completeness review period because ACA Section 1332 does not reference a review period prior to the clock starting on the maximum 180-day statutory review period; 2) establish a fast-track waiver review process for waiver applications that are the same or similar to waivers already approved by the HHS; 3) permit the states with pending waiver applications to expedite the review process if an emergency presents itself after the application is submitted; and 4) establish a fast-track approval process for waivers submitted in response to an urgent or emergency situation, such as bare counties or excessive premium increases. Having no further business, the Health Care Reform Regulatory Alternatives (B) Working Group adjourned. W:\National Meetings\2018\Spring\Cmte\B\HCRRAWG\HCRRAWG 11-13-17 ConfCallmin.docx 2018 National Association of Insurance Commissioners 2
Agenda Item #2 Hear a Federal Center for Consumer Information & Insurance Oversight (CCIIO) Presentation on Section 1332 Waivers and Other State Innovation Options Randy Pate (CCIIO)
Agenda Item #4 Discuss Any Other Matters Brought Before the Working Group J. P. Wieske (WI)