What are waivers?
A state request that the Secretary of Health and Human Services waive certain federal health care program requirements, usually in Medicaid or the marketplaces. Federal law gives the Secretary the authority to grant waivers. The Secretary of Treasury is also involved in approving marketplace waivers.
There are different kinds of waivers. For each, the Secretary’s waiver authority (e.g., what can be waived, why, for how long) is limited by statute, regulations, and guidance.
What’s the difference between a 1332 and 1115 waiver?
“1115” and “1332” are just two of the health care waivers the Secretary can grant, but they can be the broadest.
An 1115 waiver is a “Demonstration Project” waiver. It allows demonstration waivers in a variety of health and human services programs but in practice is predominantly used for Medicaid. It allows a state to waive certain Medicaid requirements for projects that are “likely to promote the objectives of the Medicaid program”. “1115” is the section of the Social Security Act that outlines the purposes and limitations of these waivers.
A 1332 waiver is an “innovation waiver.” It allows states to waive certain federal requirements for private insurance and marketplace coverage. States that waive these requirements still must show that their residents are protected with coverage that is at least as comprehensive and affordable; that residents are protected against excessive out-of-pocket costs; and that the waiver will not increase the federal deficit. Section 1332 of the Affordable Care Act outlines the requirements for these waivers.
How do states begin the waiver process?
States develop a waiver request. Depending on the waiver’s content and state law, waiver decisions may involve the state legislature or be done through a state agency. States submit requests to the Center for Medicare and Medicaid Services (CMS), an agency within HHS. For 1115 waivers states must hold a public comment period before submission. For 1332 waivers, states must enact a law, hold public hearings, and hold a public comment period.
How does a waiver get approved?
CMS evaluates the state’s request, considering the law, how the waiver will affect program enrollees, and public comments. Typically CMS and states engage in negotiations, and waivers are often changed during this process. It is not uncommon for parts of a waiver to be approved, parts rejected, and parts significantly modified. For 1332 waivers, IRS is often involved in review as well as CMS. This is because a 1332 waiver can affect taxes and tax credits related to health insurance. IRS helps determine whether a waiver will increase the federal deficit.
What happens after approval?
States have to evaluate waiver programs and submit reports to CMS. For 1115 waivers, follow on public hearings are required. Based on waiver results, states or CMS may change the program.
How can the advocates and the public get involved?
In many very important ways. During waiver development, they can work with legislators and state agencies to help shape waiver content. Once a waiver is developed, commenting and testifying during state and federal comment periods is extremely important. (Comment opportunities are different by waiver type, but all allow for federal comment.) After approval, they can monitor the program and notify the state and federal government of problems with access, quality or other issues. This can spark program improvements—indeed it is the most important resource for federal and state oversight.