United States: IREG Update - November 2015

Section 1332 waivers—New flexibility coming to a state near you in 2017

The Affordable Care Act (ACA) includes many new provisions and policies that bring federal regulation into the business of health coverage—policies from the individual mandate to the essential health benefits insurance plans must cover. However, one provision that is starting to get more attention in state capitols across the country is section 1332 that gives states the opportunity to apply for waivers from certain provisions of the ACA. These waivers allow states the flexibility to craft health plans that suit the needs of their states. Section 1332 of the ACA outlines a process where states can apply to the administration for waivers that would go into effect on January 1, 2017. However, the regulations that outline the specific procedures states must follow when applying highlight both the opportunities but also the practical limitations states face when considering these waivers.

The benefits

The 1332 waiver process allows states to petition the administration to apply the federal subsidies that would otherwise have flowed to their states to fund alternative plans to address their states' health care needs. Through the 1332 process, states can develop alternative proposals that release them from several of the ACA's main requirements, including:

  • Individual mandate
  • Employer mandate
  • Creation of the health insurance marketplaces
  • Regulations determining benefit design in the ACA exchanges
  • Federal subsidies and/or cost-sharing subsidies

States can also use the 1332 waiver process to combine and coordinate applications for other already existing federal program waiver processes, like Medicaid or Medicare. This allows states additional options when it comes to the scope of their alternative plans—anywhere from expanding government programs to pursuing single payer healthcare to expanding Medicaid through private coverage to more targeted approaches like reforming the ACA exchanges.

The constraints

While a state's waiver gains them flexibility from certain ACA regulations, it still must maintain certain ACA requirements in order to gain approval. State waiver proposals must show that they still meet:

  • The comprehensive coverage requirement—That it will provide coverage that is at least as "comprehensive" as the current coverage under the ACA
  • The affordability requirement—That it will provide coverage and cost sharing protections that are at least as "affordable" as those under the ACA
  • The scope of coverage requirement—That it will provide coverage to at least as many state residents as under the ACA
  • The federal deficit requirement—That the waiver will not increase the Federal deficit

This balancing act means that states seeking waiver approval before 2017 must be strategic in both the scope and purpose of the waiver proposals they pursue. It will be crucial for states to pair their waiver applications for certain ACA provisions with alternative reform proposals that would be attractive to the current administration.

Timeline requirements

If states are contemplating whether to engage in the 1332 waiver process, there are several process requirements that dictate the need for states to take action quickly. For example, waiver applications must include:

  • A copy of the enacted state legislation that gives states the authority to implement the 1332 waiver,
  • A comprehensive description of the state legislation and program that will implement the proposed waiver plan,
  • Proof that the state has complied with the public notice requirement that includes an opportunity for a meaningful level of public input through at least two public hearings,
  • Actuarial analyses that support the state's finding that the proposal will meet the comprehensive coverage, the affordability and the scope of coverage requirements, and
  • Economic analyses that support the state's assertion that the proposal meets all four requirements, including a detailed a 10-year budget plan that proves deficit neutrality.

As state legislatures and policymakers prepare for their 2016 legislative sessions, they need to consider a few preliminary questions if they are thinking about pursuing the 1332 waiver process:

  • Do they need a state law giving them the authority to engage in the waiver process? Or a state law that creates a program to implement the waiver plan?
  • In order to comply with the public notice and comment requirements, when is it necessary to announce the state's intention to develop a 1332 waiver? How, when and where will the public hearings need to be held?
  • Conduct a balanced analysis of the size and scope of the desired waiver that will best fit the needs of the state while meeting the coverage, affordability and deficit neutrality requirements.


Noteworthy links from the past two weeks


  • The New York Department of Financial Services wrote a letter to federal regulators describing potential new cyber security requirements for insurers and banks [New York State Department of Financial Services]
  • The search for a permanent Superintendent of Financial Services in New York continued [Financial Times]


  • The Financial Stability Board issued a new list of global systemically important insurers (G-SIIs) [FinancialRegulatory.com]
  • Fitch Ratings pointed to a potential off-ramp from the G-SII list [Reactions]


  • A National Association of Insurance Commissioners subgroup proposed new revisions to a just adopted rule on Indexed Universal Life insurance illustrations [JDSupra]


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
26 Sep 2018, Conference, New York, United States

Dentons is delighted to support a global IT services and consulting firm Miratech as an event host partner at their annual conference called M-Force18 New York on September 27th. The event will be held at Dentons New York office in the heart of Midtown Manhattan, opposite Rockefeller Center.

2 Oct 2018, Seminar, Dallas, United States

We are pleased to offer a program of five sessions designed specifically for in-house counsel. Topics will include:

  • In-house corporate ethical issues
  • What recent Supreme Court decisions mean for business
  • Keeping lawyers out of your benefit plans
  • Litigation tactics for in-house counsel
  • Employment issues in the age of #MeToo
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions