CMS Impermissibly Seeks to Reopen Georgia’s 1332 Waiver Application and Approval Process

On June 3, President Biden’s new Centers for Medicare & Medicaid Services (CMS) Administrator, Chiquita Brooks-LaSure, sent a letter to Gov. Brian Kemp of Georgia requesting an updated analysis of the state’s waiver of certain Affordable Care Act (ACA) provisions that was approved by the Trump Administration last Fall. CMS gave the state a 30-day deadline. Georgia responded on July 2 expressing concerns that the request falls outside the Specific Terms and Conditions (STCs) governing the waiver and that it suggests the Biden administration “wish[es] to reopen approval of the waiver—an action not permitted by the STCs.” As the request does not appear to fit the process, Georgia asked for a meeting with CMS for further clarification.

This analysis assesses both the legal and practical basis for the CMS request. Though CMS cites to the STCs for authority to request these updated analyses, a close examination shows theses STCs are not relevant to the current situation. Therefore, there does not appear to be any legal basis for the CMS request. Even if there were a legal basis, any updated analyses would be premature. The changed circumstances CMS cites—including the temporary expansion of premium tax credits in the American Rescue Plan Act (ARPA), increased federal funding for Navigators, and the COVID special enrollment period—are just now taking shape in the insurance market and the data necessary to make a meaningful assessment of these changes is not yet available. Moreover, though some circumstances may have changed, the underlying dynamics driving the results in the actuarial and economic analyses have not changed. Thus, there’s little reason to think the changes would upset the positive forces the Georgia waiver will introduce to increase affordability and access to health coverage.

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