42 U.S.C. § 18052 — Waiver for State innovation

Page 9120 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 18052 1 So in original. Probably should be ‘‘section’’. 2 See References in Text note below. erty line for the size of the family involved but who is not eligible for the Medicaid pro- gram under title XIX of the Social Security Act by reason of such alien status; (C) who is not eligible for minimum essen- tial coverage (as defined in section 5000A(f) of title 26) or is eligible for an employer- sponsored plan that is not affordable cov- erage (as determined under section 5000A(e)(2) of such title); and (D) who has not attained age 65 as of the beginning of the plan year. Such term shall not include any individual who is not a qualified individual under section 18032 of this title who is eligible to be covered by a qualified health plan offered through an Exchange. (2) Eligible individuals may not use Exchange An eligible individual shall not be treated as a qualified individual under section 18032 of this title eligible for enrollment in a qualified health plan offered through an Exchange es- tablished under section 18031 of this title. (f) Secretarial oversight The Secretary shall each year conduct a re- view of each State program to ensure compli- ance with the requirements of this section, in- cluding ensuring that the State program meets— (1) eligibility verification requirements for participation in the program; (2) the requirements for use of Federal funds received by the program; and (3) the quality and performance standards under this section. (g) Standard health plan offerors A State may provide that persons eligible to offer standard health plans under a basic health program established under this section may in- clude a licensed health maintenance organiza- tion, a licensed health insurance insurer, or a network of health care providers established to offer services under the program. (h) Definitions Any term used in this section which is also used in section 36B of title 26 shall have the meaning given such term by such section. (Pub. L. 111–148, title I, § 1331, title X, § 10104(o), Mar. 23, 2010, 124 Stat. 199, 902.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsecs. (c)(4) and (e)(1)(A), (B), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Titles XIX and XXI of the Act are classified gen- erally to subchapters XIX (§ 1396 et seq.) and XXI (§ 1397aa et seq.), respectively, of chapter 7 of this title. For complete classification of this Act to the Code, see section 1305 of this title and Tables. This Act, referred to in subsec. (d)(3)(A)(iii), is Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 119, known as the Pa- tient Protection and Affordable Care Act. For complete classification of this Act to the Code, see Short Title note set out under section 18001 of this title and Tables. AMENDMENTS 2010—Subsec. (d)(3)(A)(i). Pub. L. 111–148, § 10104(o)(1), substituted ‘‘95 percent’’ for ‘‘85 percent’’. Subsec. (e)(1)(B). Pub. L. 111–148, § 10104(o)(2), inserted ‘‘, or, in the case of an alien lawfully present in the United States, whose income is not greater than 133 percent of the poverty line for the size of the family in- volved but who is not eligible for the Medicaid program under title XIX of the Social Security Act by reason of such alien status’’ before semicolon at end. § 18052. Waiver for State innovation (a) Application (1) In general A State may apply to the Secretary for the waiver of all or any requirements described in paragraph (2) with respect to health insurance coverage within that State for plan years be- ginning on or after January 1, 2017. Such appli- cation shall— (A) be filed at such time and in such man- ner as the Secretary may require; (B) contain such information as the Sec- retary may require, including— (i) a comprehensive description of the State legislation and program to imple- ment a plan meeting the requirements for a waiver under this section; and (ii) a 10-year budget plan for such plan that is budget neutral for the Federal Gov- ernment; and (C) provide an assurance that the State has enacted the law described in subsection (b)(2). (2) Requirements The requirements described in this para- graph with respect to health insurance cov- erage within the State for plan years begin- ning on or after January 1, 2014, are as follows: (A) Part A of this subchapter. (B) Part B of this subchapter. (C) Section 18071 of this title. (D) Sections 36B, 4980H, and 5000A of title 26. (3) Pass through of funding With respect to a State waiver under para- graph (1), under which, due to the structure of the State plan, individuals and small employ- ers in the State would not qualify for the pre- mium tax credits, cost-sharing reductions, or small business credits under sections 1 36B of title 26 or under part I of subtitle E for which they would otherwise be eligible, the Sec- retary shall provide for an alternative means by which the aggregate amount of such credits or reductions that would have been paid on be- half of participants in the Exchanges estab- lished under this title 2 had the State not re- ceived such waiver, shall be paid to the State for purposes of implementing the State plan under the waiver. Such amount shall be deter- mined annually by the Secretary, taking into consideration the experience of other States with respect to participation in an Exchange and credits and reductions provided under such provisions to residents of the other States. (4) Waiver consideration and transparency (A) In general An application for a waiver under this sec- tion shall be considered by the Secretary in Page 9121 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 18052 3 So in original. Probably should be preceded by ‘‘the’’. 4 So in original. Probably should be ‘‘therefor.’’ accordance with the regulations described in subparagraph (B). (B) Regulations Not later than 180 days after March 23, 2010, the Secretary shall promulgate regula- tions relating to waivers under this section that provide— (i) a process for public notice and com- ment at the State level, including public hearings, sufficient to ensure a meaningful level of public input; (ii) a process for the submission of an ap- plication that ensures the disclosure of— (I) the provisions of law that the State involved seeks to waive; and (II) the specific plans of the State to ensure that the waiver will be in compli- ance with subsection (b); (iii) a process for providing public notice and comment after the application is re- ceived by the Secretary, that is sufficient to ensure a meaningful level of public input and that does not impose require- ments that are in addition to, or duplica- tive of, requirements imposed under the Administrative Procedures Act,2 or re- quirements that are unreasonable or un- necessarily burdensome with respect to State compliance; (iv) a process for the submission to the Secretary of periodic reports by the State concerning the implementation of the pro- gram under the waiver; and (v) a process for the periodic evaluation by the Secretary of the program under the waiver. (C) Report The Secretary shall annually report to Congress concerning actions taken by the Secretary with respect to applications for waivers under this section. (5) Coordinated waiver process The Secretary shall develop a process for co- ordinating and consolidating the State waiver processes applicable under the provisions of this section, and the existing waiver processes applicable under titles XVIII, XIX, and XXI of the Social Security Act [42 U.S.C. 1395 et seq., 1396 et seq., 1397aa et seq.], and any other Fed- eral law relating to the provision of health care items or services. Such process shall per- mit a State to submit a single application for a waiver under any or all of such provisions. (6) Definition In this section, the term ‘‘Secretary’’ means— (A) the Secretary of Health and Human Services with respect to waivers relating to the provisions described in subparagraph (A) through (C) of paragraph (2); and (B) the Secretary of the Treasury with re- spect to waivers relating to the provisions described in paragraph (2)(D). (b) Granting of waivers (1) In general The Secretary may grant a request for a waiver under subsection (a)(1) only if the Sec- retary determines that the State plan— (A) will provide coverage that is at least as comprehensive as the coverage defined in section 18022(b) of this title and offered through Exchanges established under this title 2 as certified by Office 3 of the Actuary of the Centers for Medicare & Medicaid Serv- ices based on sufficient data from the State and from comparable States about their ex- perience with programs created by this Act and the provisions of this Act that would be waived; (B) will provide coverage and cost sharing protections against excessive out-of-pocket spending that are at least as affordable as the provisions of this title 2 would provide; (C) will provide coverage to at least a com- parable number of its residents as the provi- sions of this title 2 would provide; and (D) will not increase the Federal deficit. (2) Requirement to enact a law (A) In general A law described in this paragraph is a State law that provides for State actions under a waiver under this section, including the implementation of the State plan under subsection (a)(1)(B). (B) Termination of opt out A State may repeal a law described in sub- paragraph (A) and terminate the authority provided under the waiver with respect to the State. (c) Scope of waiver (1) In general The Secretary shall determine the scope of a waiver of a requirement described in sub- section (a)(2) granted to a State under sub- section (a)(1). (2) Limitation The Secretary may not waive under this sec- tion any Federal law or requirement that is not within the authority of the Secretary. (d) Determinations by Secretary (1) Time for determination The Secretary shall make a determination under subsection (a)(1) not later than 180 days after the receipt of an application from a State under such subsection. (2) Effect of determination (A) Granting of waivers If the Secretary determines to grant a waiver under subsection (a)(1), the Secretary shall notify the State involved of such deter- mination and the terms and effectiveness of such waiver. (B) Denial of waiver If the Secretary determines a waiver should not be granted under subsection (a)(1), the Secretary shall notify the State involved, and the appropriate committees of Congress of such determination and the rea- sons therefore.4 (e) Term of waiver No waiver under this section may extend over a period of longer than 5 years unless the State Page 9122 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 18053 1 See References in Text note below. requests continuation of such waiver, and such request shall be deemed granted unless the Sec- retary, within 90 days after the date of its sub- mission to the Secretary, either denies such re- quest in writing or informs the State in writing with respect to any additional information which is needed in order to make a final deter- mination with respect to the request. (Pub. L. 111–148, title I, § 1332, Mar. 23, 2010, 124 Stat. 203.) Editorial Notes REFERENCES IN TEXT Part I of subtitle E, referred to in subsec. (a)(3), is part I (§§ 1401–1415) of subtitle E of title I of Pub. L. 111–148, which enacted subchapter IV of this chapter and section 36B of Title 26, Internal Revenue Code, amended section 405 of this title, sections 280C, 6103, and 7213 of Title 26, and section 1324 of Title 31, Money and Finance, and enacted provisions set out as a note under section 36B of Title 26. For complete classifica- tion of part I to the Code, see Tables. This title, where footnoted in subsecs. (a)(3) and (b)(1)(A) to (C), is title I of Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 130, which enacted this chapter and enacted, amended, and transferred numerous other sections and notes in the Code. For complete classification of title I to the Code, see Tables. The Administrative Procedures Act, referred to in subsec. (a)(4)(B)(iii), probably means the Administra- tive Procedure Act, act June 11, 1946, ch. 324, 60 Stat. 237, which was classified to sections 1001 to 1011 of former title 5 and which was repealed and reenacted as subchapter II (§ 551 et seq.) of chapter 5, and chapter 7 (§ 701 et seq.), of Title 5, Government Organization and Employees, by Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 378. See Short Title note preceding section 551 of Title 5. The Social Security Act, referred to in subsec. (a)(5), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Titles XVIII, XIX, and XXI of the Act are classified generally to sub- chapters XVIII (§ 1395 et seq.), XIX (§ 1396 et seq.), and XXI (§ 1397aa et seq.), respectively, of chapter 7 of this title. For complete classification of this Act to the Code, see section 1305 of this title and Tables. This Act, referred to in subsec. (b)(1)(A), is Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 119, known as the Pa- tient Protection and Affordable Care Act. For complete classification of this Act to the Code, see Short Title note set out under section 18001 of this title and Tables. § 18053. Provisions relating to offering of plans in more than one State (a) Health care choice compacts (1) In general Not later than July 1, 2013, the Secretary shall, in consultation with the National Asso- ciation of Insurance Commissioners, issue reg- ulations for the creation of health care choice compacts under which 2 or more States may enter into an agreement under which— (A) 1 or more qualified health plans could be offered in the individual markets in all such States but, except as provided in sub- paragraph (B), only be subject to the laws and regulations of the State in which the plan was written or issued; (B) the issuer of any qualified health plan to which the compact applies— (i) would continue to be subject to mar- ket conduct, unfair trade practices, net- work adequacy, and consumer protection standards (including standards relating to rating), including addressing disputes as to the performance of the contract, of the State in which the purchaser resides; (ii) would be required to be licensed in each State in which it offers the plan under the compact or to submit to the ju- risdiction of each such State with regard to the standards described in clause (i) (in- cluding allowing access to records as if the insurer were licensed in the State); and (iii) must clearly notify consumers that the policy may not be subject to all the laws and regulations of the State in which the purchaser resides. (2) State authority A State may not enter into an agreement under this subsection unless the State enacts a law after March 23, 2010, that specifically au- thorizes the State to enter into such agree- ments. (3) Approval of compacts The Secretary may approve interstate health care choice compacts under paragraph (1) only if the Secretary determines that such health care choice compact— (A) will provide coverage that is at least as comprehensive as the coverage defined in section 18022(b) of this title and offered through Exchanges established under this title; 1 (B) will provide coverage and cost sharing protections against excessive out-of-pocket spending that are at least as affordable as the provisions of this title 1 would provide; (C) will provide coverage to at least a com- parable number of its residents as the provi- sions of this title 1 would provide; (D) will not increase the Federal deficit; and (E) will not weaken enforcement of laws and regulations described in paragraph (1)(B)(i) in any State that is included in such compact. (4) Effective date A health care choice compact described in paragraph (1) shall not take effect before Jan- uary 1, 2016. (b) Repealed. Pub. L. 111–148, title X, § 10104(p), Mar. 23, 2010, 124 Stat. 902 (Pub. L. 111–148, title I, § 1333, title X, § 10104(p), Mar. 23, 2010, 124 Stat. 206, 902.) Editorial Notes REFERENCES IN TEXT This title, where footnoted in subsec. (a)(3)(A) to (C), is title I of Pub. L. 111–148, Mar. 23, 2010, 124 Stat. 130, which enacted this chapter and enacted, amended, and transferred numerous other sections and notes in the Code. For complete classification of title I to the Code, see Tables. AMENDMENTS 2010—Subsec. (b). Pub. L. 111–148, § 10104(p), struck out subsec. (b) which provided authority and requirements for health insurance issuers to offer nationwide quali- fied health plans.