Beginning in 2017, states will have the ability to revisit the Patient Protection and Affordable Care Act’s (ACA’s) private insurance expansion via ACA innovation waivers, which is in addition to the ability to modify state Medicaid plans via a waiver of federal Medicaid law. A new analysis from researchers at the Guttmacher Institute argue that reproductive health advocates should monitor these waivers closely, because they could have significant implications for sexual and reproductive health and rights.
Waivers under Section 1115 under the Social Security Act have been available for use since 1965. Most states are operating under at least one of these waivers. After the Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius, states gained considerable leverage to alter state Medicaid plans in their negotiations with CMS to adjust to the new requirements of the ACA. According to the Guttmacher study, “In the field of sexual and reproductive health, Medicaid waivers are perhaps best known as the original means by which states have expanded eligibility for family planning coverage to women and men ineligible for broader Medicaid.” Currently, there are six states which took advantage of this and expanded Medicaid via an experimental waiver of federal requirements.
Medicaid innovation waivers
In 2017, states will also have the ability to use ACA innovation waivers, which are authorized under section 1332 of the ACA. These waivers offer states the ability to modify major pieces of the ACA, such as the individual mandate and the employer mandate. They can also change all of the major aspects of the ACA’s private insurance marketplaces. State changes under innovation waivers, however, may not result in less comprehensive coverage, less affordable coverage or provide fewer residents with coverage. The waivers must also be budget neutral for the federal government.
Should they decide to use an innovation waiver, states will be required to gain approval from the federal government (from HHS and the Department of the Treasury), obtain public input and analyze the governmental impact. Legislation would have to be passed for changes to be made, and states will need to renew the waivers approximately every five years.
In December, 2015, the government provided significant guidance on what can and cannot be modified under these innovation waivers. This guidance explained four so-called “guardrails” to determine what states can and cannot do. According to the guidance, the federal government will look not only at the overall population, but also at the more vulnerable population groups to determine whether the state coverage is at least as comprehensive as it would be in the absence of the waiver. States will not be able to use projected savings from changes within Medicaid to help finance expanded private-sector coverage for higher-income groups via ACA innovation waivers. They will not receive help from the federal government to make changes to the marketplaces, and should states decide to change their marketplaces, they will have to do so on their own. Further, the Internal Revenue Service will not have the power to issue state-specific rules about affordability tax credits and states will have to handle this on their own as well.
While Medicaid waivers have been used to expand eligibility, there are many factors which could swing the availability of reproductive health benefits in the other direction under Medicaid innovation waivers. According to Guttmacher,”the next administration has the opportunity to weaken these protections in ways that might undermine access to sexual and reproductive health care and providers. Alternatively, the next administration could help states further advance access to comprehensive coverage and care, including sexual and reproductive health care.”
With the availability of the innovation waiver coming into play in 2017, states are beginning to eyeball just what changes they can make. They are also keeping close watch on the election season for fall 2016. Depending on the results of this election, the federal government could potentially change that guidance document. The Guttmacher analysis points out that, “advocates should be on the lookout for Medicaid and ACA innovation waivers that would restructure payment rules and network adequacy requirements in ways that could impact reproductive health providers.” The ACA’s preventive services guarantees, such as coverage protections for contraception, HIV and other sexually transmitted disease screening, and breastfeeding support is not something that can be changed under an ACA innovation waiver, but Guttmacher advises that “reproductive health advocates should keep an eye on state attempts to expand formularies and other utilization control tools available to plans, to ensure that they do not somehow conflict with the coverage protections for contraception and other preventive services.”