Health Policy Professor Comments on Impacts of Trump Administration’s Reinterpretation of ACA Waiver Provisions

The Centers for Medicare & Medicaid Services and the U.S. Department of the Treasury recently released guidance granting states more flexibility to design alternatives to the Affordable Care Act (ACA) by reinterpreting existing waiver provisions under the law.

The ACA’s section 1332 allows states to request waivers to certain provisions of the law to “implement innovative ways to provide access to quality health care that is at least as comprehensive and affordable as would be provided absent the waiver, provides coverage to a comparable number of residents of the state as would be provided coverage absent a waiver, and does not increase the federal deficit.”

In earlier guidance, the Obama Administration had laid out how it would interpret waiver proposals to protect consumers under these statutory “guardrails.”  The new guidance, which supersedes the earlier one, would loosen these guardrails, potentially allowing states to enact policies that reduce access to comprehensive, affordable coverage, including for people with pre-existing conditions. 

Naomi Seiler, JD of the George Washington University Milken Institute School of Public Health, says, “The administration's new guidance will purportedly give states more flexibility to use 1332 waivers to give consumers what they want. But this is, in part, 'flexibility' to support flimsy plans, and to weaken the risk pool for people with higher health needs.” 

The changes the administration invites could also lead states to more heavily support plans that are allowed to reject people with preexisting conditions, Seiler says. “This is just one more piece in the administration's stated goal of tearing down the ACA by whatever tools they can muster.  In issuing this guidance, the administration has stretched to re-interpret current law regarding consumer - focused ‘guardrails’ for these waivers,” she contends, “so approvals made under this guidance may be of questionable legality.”