American Experiment files comments challenging federal actions to undermine Georgia’s Obamacare waiver

In November, the Centers for Medicare & Medicaid Services (CMS) issued a request for comment to gather input on whether the state of Georgia’s waiver from certain requirements of the Affordable Care Act (ACA) — often referred to as Obamacare — still meets the requirements of the law. American Experiment filed comments challenging the agency’s authority to request comments in the first place and arguing that this and previous agency actions violate the specific terms and conditions (STCs) of the waiver. 

Under Section 1332 of the ACA, states can waive certain requirements of the law so long as the waiver meets a set of statutory guardrails. Generally, any waiver must provide coverage that is at least as comprehensive and affordable to the same number of people as without the waiver. These waivers, like Medicaid waivers, give states an important measure of flexibility to improve their state health care programs.

Georgia’s 1332 waiver, which CMS approved in 2020, plans to shift ACA enrollment from to a private sector enrollment platform called the Georgia Access Model. The main purpose of this waiver is to increase enrollment in subsidized health insurance coverage and improve the enrollment experience for consumers.  As CMS notes in their approval letter, through the Georgia Access Model web-brokers, issuers, and agents and brokers will “have greater incentive to invest in marketing and outreach in order to retain existing enrollees and attract new consumers to the individual market.”

During the Trump administration, CMS approved the Georgia waiver out of a strong commitment to work with states to help them innovate and implement their own health care solutions. CMS also approved several Medicaid waivers as well. 

Since President Biden took office, CMS has been working to rescind these approved waivers. Several Medicaid waivers have been revoked over the past several months, including waivers in Arizona, Arkansas, Indiana, Michigan, New Hampshire, Ohio, South Carolina, Wisconsin, Utah, and, most recently, Georgia.

Unfortunately, CMS sent a letter to Georgia’s governor last June requesting updated economic and actuarial analyses for their 1332 waiver. This was a transparent effort to begin a process to revoke the waiver. American Experiment published a report in July explaining why CMS had no authority to make this request. The waiver was already approved. The contract was signed. The agency’s actions effectively tried to reopen the approval process, which they had no authority to do.

As American Experiment explained in our comments this week, there’s also no authority for CMS to open a public comment period. Federal regulations provide a detailed framework for federal and state procedures to collect public comment. If CMS wants to deviate from those procedures, it must do so by amending these regulations through the notice and comment rulemaking process governed by the Administrative Procedures Act.

In CMS correspondence with Georgia and the comment request, the agency suggests the waiver may no longer meet the coverage guardrail based on changes in law and the amount of funding provided provide for navigators and outreach. They’re basically asserting that the enrollment gains from the Georgia Access Model will no longer beat the enrollment gains from higher federal spending on navigators and outreach. In other words, they’re arguing the public sector is better than the private sector at enrolling people in private health coverage.

But under the Trump administration, CMS worked hard to open pathways for private sector enrollment through Enhanced Direct Enrollment (EDE). Instead of forcing everyone to enroll through, EDE allows private web brokers to enroll people in subsidized coverage through their own websites. And it works. Enrollment through EDE increased from 8 percent for the 2020 benefit year to 17 percent for 2021, just the second full year. Importantly, EDE attracted a higher proportion of new enrollments than

“The people of Georgia,” as American Experiment’s comments conclude, “deserve a fair chance to let the Georgia Access Model prove its worth. CMS should continue to work in good faith with the state of Georgia to put the waiver on solid footing to improve Georgia’s individual health insurance market for every Georgia citizen who depends on it.”