Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 31815 

(TSCA) to address the unreasonable risk 

of injury to health it has identified for 

conditions of use of chrysotile asbestos 

following completion of the TSCA Risk 

Evaluation for Asbestos, Part 1: 

Chrysotile Asbestos. 

DATES: The comment period for the 

proposed rule published April 12, 2022, 

87 FR 21706, is extended. Comments 

must be received on or before July 13, 

2022. 

ADDRESSES: Submit your comments, 

identified by ID number EPA–HQ– 

OPPT–2021–0057, through the Federal 

eRulemaking Portal at https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Additional 

instructions on commenting or visiting 

the docket, along with more information 

about dockets generally, is available at 

https://www.epa.gov/dockets/aboutepa-dockets. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Peter 

Gimlin, Existing Chemicals Risk 

Management Division (Mail Code 

7404T), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW, 

Washington, DC 20460–0001; telephone 

number: (202) 566–0515; email address: 

gimlin.peter@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCA- Hotline@

epa.gov. 

SUPPLEMENTARY INFORMATION: This 

document extends the public comment 

period established in the Federal 

Register of April 12, 2022 (87 FR 21706) 

(FRL–8332–02–OCSPP) for 30 days, 

from June 13, 2022 to July 13, 2022. In 

that document, EPA proposed a rule 

under TSCA to address the 

unreasonable risk of injury to health it 

has identified for conditions of use of 

chrysotile asbestos following 

completion of the TSCA Risk Evaluation 

for Asbestos, Part 1: Chrysotile 

Asbestos, and solicited public comment 

on the proposed rule. More information 

on EPA’s proposed regulation and 

solicitation of comment can be found in 

the Federal Register of April 12, 2022. 

EPA received requests to extend the 

comment period and believes it is 

appropriate to do so in order to give 

stakeholders additional time to review 

the proposed regulation and prepare 

comments. 

If you have questions, consult the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

List of Subjects in 40 CFR Part 751 

Environmental protection, Chemicals, 

Export certification, Hazardous 

substances, Import certification, 

Recordkeeping. 

Dated: May 16, 2022. 

Michal Freedhoff, 

Assistant Administrator, Office of Chemical 

Safety and Pollution Prevention. 

[FR Doc. 2022–10854 Filed 5–24–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 600 

[CMS–2441–P] 

RIN 0938–AU89 

Basic Health Program; Federal 

Funding Methodology for Program 

Year 2023 and Proposed Changes to 

Basic Health Program Regulations 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Proposed rule. 

SUMMARY: This document proposes the 

methodology and data sources necessary 

to determine Federal payment amounts 

to be made for program year 2023 to 

States that elect to establish a Basic 

Health Program under the Patient 

Protection and Affordable Care Act to 

offer health benefits coverage to lowincome individuals otherwise eligible to 

purchase coverage through Health 

Insurance Exchanges. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on June 24, 2022. 

ADDRESSES: In commenting, refer to file 

code CMS–2441–P. 

Comments, including mass comment 

submissions, must be submitted in one 

of the following three ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2441–P, P.O. Box 8016, Baltimore, 

MD 21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–2441–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Truffer, (410) 786–1264; or 

Cassandra Lagorio, (410) 786–4554. 

SUPPLEMENTARY INFORMATION: 

Inspection of Public Comments: All 

comments received before the close of 

the comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. Follow the search 

instructions on that website to view 

public comments. CMS will not post on 

Regulations.gov public comments that 

make threats to individuals or 

institutions or suggest that the 

commenter will take actions to harm 

another individual. CMS continues to 

encourage individuals not to submit 

duplicative comments. We will post 

acceptable comments from multiple 

unique commenters even if the content 

is identical or nearly identical to other 

comments. 

I. Background 

A. Overview of the Basic Health 

Program 

Section 1331 of the Patient Protection 

and Affordable Care Act (Pub. L. 111– 

148, enacted on March 23, 2010), as 

amended by the Health Care and 

Education Reconciliation Act of 2010 

(Pub. L. 111–152, enacted on March 30, 

2010) (collectively referred to as the 

Affordable Care Act or ACA) provides 

States with an option to establish a 

Basic Health Program (BHP). In the 

States that elect to operate a BHP, the 

BHP makes affordable health benefits 

coverage available for individuals under 

age 65 with household incomes between 

133 percent and 200 percent of the 

Federal poverty level (FPL) who are not 

otherwise eligible for Medicaid, the 

Children’s Health Insurance Program 

(CHIP), or affordable employersponsored coverage, or for individuals 

whose income is below these levels but 


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1BHP program years span from January 1 through 

December 31. 

2 In section III. of this proposed rule, we propose 

to modify the publication schedule of the BHP 

payment notices. 

are lawfully present non-citizens 

ineligible for Medicaid. For those States 

that have expanded Medicaid coverage 

under section 1902(a)(10)(A)(i)(VIII) of 

the Social Security Act (the Act), the 

lower income threshold for BHP 

eligibility is effectively 138 percent due 

to the application of a required 5 

percent income disregard in 

determining the upper limits of 

Medicaid income eligibility (section 

1902(e)(14)(I) of the Act). 

A BHP is another option for States to 

provide affordable health benefits to 

individuals with incomes in the ranges 

described above. States may find a BHP 

a useful option for several reasons, 

including the ability to potentially 

coordinate standard health plans in the 

BHP with their Medicaid managed care 

plans, or to potentially reduce the costs 

to individuals by lowering premiums or 

cost-sharing requirements. 

Federal funding for a BHP under 

section 1331(d)(3)(A) of the ACA is 

based on the amount of the Federal 

premium tax credit (PTC) allowed and 

payments to cover required cost-sharing 

reductions (CSRs) that would have been 

provided for the fiscal year to eligible 

individuals enrolled in BHP standard 

health plans in the State if such eligible 

individuals were allowed to enroll in a 

qualified health plan (QHP) through 

Health Insurance Exchanges 

(Exchanges). These funds are paid to 

trusts established by the States and 

dedicated to the BHP, and the States 

then administer the payments to 

standard health plans within the BHP. 

In the March 12, 2014, Federal 

Register (79 FR 14111), we published a 

final rule entitled the ‘‘Basic Health 

Program: State Administration of Basic 

Health Programs; Eligibility and 

Enrollment in Standard Health Plans; 

Essential Health Benefits in Standard 

Health Plans; Performance Standards for 

Basic Health Programs; Premium and 

Cost Sharing for Basic Health Programs; 

Federal Funding Process; Trust Fund 

and Financial Integrity’’ (hereinafter 

referred to as the BHP final rule) 

implementing section 1331 of the ACA, 

which governs the establishment of 

BHPs. The BHP final rule established 

the standards for State and Federal 

administration of BHPs, including 

provisions regarding eligibility and 

enrollment, benefits, cost-sharing 

requirements and oversight activities. 

While the BHP final rule codified the 

overall statutory requirements and basic 

procedural framework for the funding 

methodology, it does not contain the 

specific information necessary to 

determine Federal payments. We 

anticipated that the methodology would 

be based on data and assumptions that 

would reflect ongoing operations and 

experience of BHPs, as well as the 

operation of the Exchanges. For this 

reason, the BHP final rule indicated that 

the development and publication of the 

funding methodology, including any 

data sources, would be addressed in a 

separate annual BHP Payment Notice. 

In the BHP final rule, we specified 

that the BHP Payment Notice process 

would include the annual publication of 

both a proposed and final BHP payment 

methodology. The proposed BHP 

Payment Notice would be published in 

the Federal Register each October, 2 

years prior to the applicable program 

year, and would describe the proposed 

funding methodology for the relevant 

BHP year,1 including how the Secretary 

of the Department of Health and Human 

Services (the Secretary) considered the 

factors specified in section 1331(d)(3) of 

the ACA, along with the proposed data 

sources used to determine the Federal 

BHP payment rates for the applicable 

program year. The final BHP Payment 

Notice would be published in the 

Federal Register in February, and 

would include the final BHP payment 

methodology, as well as the Federal 

BHP payment rates for the applicable 

BHP program year.2 For example, 

payment rates in the final BHP Payment 

Notice published in February 2015 

applied to BHP program year 2016, 

beginning in January 2016. As discussed 

in section II.D. of this proposed rule, 

and as referenced in 42 CFR 

600.610(b)(2), State data needed to 

calculate the Federal BHP payment rates 

for the final BHP Payment Notice must 

be submitted to CMS. 

As described in the BHP final rule, 

once the final methodology for the 

applicable program year has been 

published, we will generally make 

modifications to the BHP funding 

methodology on a prospective basis, 

with limited exceptions. The BHP final 

rule provided that retrospective 

adjustments to the State’s BHP payment 

amount may occur to the extent that the 

prevailing BHP funding methodology 

for a given program year permits 

adjustments to a State’s Federal BHP 

payment amount due to insufficient 

data for prospective determination of 

the relevant factors specified in the 

applicable final BHP Payment Notice. 

For example, the population health 

factor adjustment described in section 

II.D.3. of this proposed rule allows for 

a retrospective adjustment (at the State’s 

option) to account for the impact that 

BHP may have had on the risk pool and 

QHP premiums in the Exchange. 

Additional adjustments could be made 

to the payment rates to correct errors in 

applying the methodology (such as 

mathematical errors). 

Under section 1331(d)(3)(ii) of the 

ACA, the funding methodology and 

payment rates are expressed as an 

amount per eligible individual enrolled 

in a BHP standard health plan (BHP 

enrollee) for each month of enrollment. 

These payment rates may vary based on 

categories or classes of enrollees. Actual 

payment to a State would depend on the 

actual enrollment of individuals found 

eligible in accordance with a State’s 

certified BHP Blueprint eligibility and 

verification methodologies in coverage 

through the State BHP. A State that is 

approved to implement a BHP must 

provide data showing quarterly 

enrollment of eligible individuals in the 

various Federal BHP payment rate cells. 

Such data must include the following: 

• Personal identifier; 

• Date of birth; 

• County of residence; 

• Indian status; 

• Family size; 

• Household income; 

• Number of persons in household 

enrolled in BHP; 

• Family identifier; 

• Months of coverage; 

• Plan information; and 

• Any other data required by CMS to 

properly calculate the payment. 

B. The 2018 Final Administrative Order 

and 2019 Through 2022 Payment 

Methodologies 

On October 11, 2017, the Attorney 

General of the United States provided 

the Department of Health and Human 

Services and the Department of the 

Treasury (the Departments) with a legal 

opinion indicating that the permanent 

appropriation at 31 U.S.C. 1324, from 

which the Departments had historically 

drawn funds to make CSR payments, 

cannot be used to fund CSR payments 

to insurers. In light of this opinion—and 

in the absence of any other 

appropriation that could be used to fund 

CSR payments—the Department of 

Health and Human Services directed 

CMS to discontinue CSR payments to 

issuers until Congress provides for an 

appropriation. In the absence of a 

Congressional appropriation for Federal 

funding for CSR payments, we cannot 

provide States with a Federal payment 

attributable to CSRs that would have 

been paid on behalf of BHP enrollees 

had they been enrolled in a QHP 

through an Exchange. 


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Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 31817 

3https://www.medicaid.gov/sites/default/files/ 

2019-11/final-admin-order-2018-revised-paymentmethodology.pdf. 

4 ‘‘Metal tiers’’ refer to the different actuarial 

value plan levels offered on the Exchanges. Bronzelevel plans generally must provide 60 percent 

actuarial value; silver-level 70 percent actuarial 

value; gold-level 80 percent actuarial value; and 

platinum-level 90 percent actuarial value. See 45 

CFR 156.140. 

Starting with the payment for the first 

quarter (Q1) of 2018 (which began on 

January 1, 2018), we stopped paying the 

CSR component of the quarterly BHP 

payments to New York and Minnesota 

(the States), the only States operating a 

BHP in 2018. The States then sued the 

Secretary for declaratory and injunctive 

relief in the United States District Court 

for the Southern District of New York. 

See New York v. U.S. Dep’t of Health & 

Human Servs., No. 18–cv–00683 (RJS) 

(S.D.N.Y. filed Jan. 26, 2018). On May 

2, 2018, the parties filed a stipulation 

requesting a stay of the litigation so that 

HHS could issue an administrative 

order revising the 2018 BHP payment 

methodology. As a result of the 

stipulation, the court dismissed the BHP 

litigation. On July 6, 2018, we issued a 

Draft Administrative Order on which 

New York and Minnesota had an 

opportunity to comment. Each State 

submitted comments. We considered 

the States’ comments and issued a Final 

Administrative Order on August 24, 

2018 3 (Final Administrative Order) 

setting forth the payment methodology 

that would apply to the 2018 BHP 

program year. 

In the November 5, 2019 Federal 

Register (84 FR 59529) (hereinafter 

referred to as the November 2019 final 

BHP Payment Notice), we finalized the 

payment methodologies for BHP 

program years 2019 and 2020. The 2019 

payment methodology is the same 

payment methodology described in the 

Final Administrative Order. The 2020 

payment methodology is the same 

methodology as the 2019 payment 

methodology with one additional 

adjustment to account for the impact of 

individuals selecting different metal tier 

level plans in the Exchange, referred to 

as the Metal Tier Selection Factor 

(MTSF).4 In the August 13, 2020 

Federal Register (85 FR 49264 through 

49280) (hereinafter referred to as the 

August 2020 final BHP Payment Notice), 

we finalized the payment methodology 

for BHP program year 2021. The 2021 

payment methodology is the same 

methodology as the 2020 payment 

methodology, with one adjustment to 

the income reconciliation factor (IRF). 

In the July 7, 2021 Federal Register (86 

FR 35615) (hereinafter referred to as the 

July 2021 final BHP Payment Notice), 

we finalized the payment methodology 

for BHP program year 2022. The 2022 

payment methodology is the same as the 

2021 payment methodology, which the 

exception of the removal of the Metal 

Tier Selection Factor. The 2023 

proposed payment methodology is the 

same as the 2022 payment methodology, 

except for the addition of a factor to 

account for a State operating a BHP and 

implementing an approved State 

Innovation Waiver under section 1332 

of the ACA (referred to as a section 1332 

waiver throughout this proposed 

payment methodology). In section III of 

this proposed rule, we also propose 

regulation changes related to the 

publication schedule of the BHP 

payment notices and recalculation of 

States’ Federal payments due to 

mathematical errors. 

II. Provisions of the Proposed Rule 

A. Overview of the Funding 

Methodology and Calculation of the 

Payment Amount 

Section 1331(d)(3) of the ACA directs 

the Secretary to consider several factors 

when determining the Federal BHP 

payment amount, which, as specified in 

the statute, must equal 95 percent of the 

value of the PTC allowed and CSRs that 

would have been paid on behalf of BHP 

enrollees had they enrolled in a QHP 

through an Exchange. Thus, the BHP 

funding methodology is designed to 

calculate the PTC and CSRs as 

consistently as possible and in general 

alignment with the methodology used 

by Exchanges to calculate advance 

payments of the PTC (APTC) and CSRs, 

and the methodology used to calculate 

PTC under 26 U.S.C. 36B, for the tax 

year. In general, we have relied on 

values for factors in the payment 

methodology specified in statute or 

other regulations as available, and have 

developed values for other factors not 

otherwise specified in statute, or 

previously calculated in other 

regulations, to simulate the values of the 

PTC allowed and CSRs that would have 

been paid on behalf of BHP enrollees if 

they had enrolled in QHPs offered 

through an Exchange. In accordance 

with section 1331(d)(3)(A)(iii) of the 

ACA, the final funding methodology 

must be certified by the Chief Actuary 

of CMS, in consultation with the Office 

of Tax Analysis (OTA) of the 

Department of the Treasury, as having 

met the requirements of section 

1331(d)(3)(A)(ii) of the ACA. 

Section 1331(d)(3)(A)(ii) of the ACA 

specifies that the payment 

determination shall take into account all 

relevant factors necessary to determine 

the value of the PTC allowed and CSRs 

that would have been paid on behalf of 

eligible individuals, including but not 

limited to, the age and income of the 

enrollee, whether the enrollment is for 

self-only or family coverage, geographic 

differences in average spending for 

health care across rating areas, the 

health status of the enrollee for 

purposes of determining risk adjustment 

payments and reinsurance payments 

that would have been made if the 

enrollee had enrolled in a QHP through 

an Exchange, and whether any 

reconciliation of APTC and CSR would 

have occurred if the enrollee had been 

so enrolled. Under all previous payment 

methodologies, the total Federal BHP 

payment amount has been calculated 

using multiple rate cells in each State. 

Each rate cell represents a unique 

combination of age range (if applicable), 

geographic area, coverage category (for 

example, self-only or two-adult coverage 

through the BHP), household size, and 

income range as a percentage of FPL, 

and there is a distinct rate cell for 

individuals in each coverage category 

within a particular age range who reside 

in a specific geographic area and are in 

households of the same size and income 

range. The BHP payment rates 

developed also are consistent with the 

State’s rules on age rating. Thus, in the 

case of a State that does not use age as 

a rating factor on an Exchange, the BHP 

payment rates would not vary by age. 

Under the methodology finalized in 

the July 2021 final BHP Payment Notice, 

the rate for each rate cell is calculated 

in 2 parts. The first part is equal to 95 

percent of the estimated PTC that would 

have been allowed if a BHP enrollee in 

that rate cell had instead enrolled in a 

QHP in an Exchange. The second part 

is equal to 95 percent of the estimated 

CSR payment that would have been 

made if a BHP enrollee in that rate cell 

had instead enrolled in a QHP in an 

Exchange. These two parts are added 

together and the total rate for that rate 

cell would be equal to the sum of the 

PTC and CSR rates. As noted in the July 

2021 final BHP Payment Notice, we 

currently assign a value of zero to the 

CSR portion of the BHP payment rate 

calculation, because there is presently 

no available appropriation from which 

we can make the CSR portion of any 

BHP payment. We seek comment on the 

following proposals. 

We propose that Equation (1) would 

be used to calculate the estimated PTC 

for eligible individuals enrolled in the 

BHP in each rate cell. We note that 

throughout this proposed rule, when we 

refer to enrollees and enrollment data, 

we mean data regarding individuals 

who are enrolled in the BHP who have 

been found eligible for the BHP using 


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31818 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 

the eligibility and verification 

requirements that are applicable in the 

State’s most recent certified Blueprint. 

By applying the equations separately to 

rate cells based on age (if applicable), 

income and other factors, we effectively 

take those factors into account in the 

calculation. In addition, the equations 

reflect the estimated experience of 

individuals in each rate cell if enrolled 

in coverage through an Exchange, taking 

into account additional relevant 

variables. Each of the variables in the 

equations is defined in this section, and 

further detail is provided later in this 

section of this proposed rule. In 

addition, we describe in Equation (2a) 

and Equation (2b) (below) how we 

propose to calculate the adjusted 

reference premium that is used in 

Equation (1). 

Equation 1: Estimated PTC by Rate Cell 

We propose that the estimated PTC, 

on a per enrollee basis, would continue 

to be calculated for each rate cell for 

each State based on age range (if 

applicable), geographic area, coverage 

category, household size, and income 

range. The PTC portion of the rate 

would be calculated in a manner 

consistent with the methodology used to 

calculate the PTC for persons enrolled 

in a QHP as defined in 26 CFR 1.36B– 

3, with five adjustments. First, the PTC 

portion of the rate for each rate cell 

would represent the mean, or average, 

expected PTC that would be paid on 

behalf of all persons in the rate cell, 

rather than being calculated for each 

individual enrollee. Second, the 

reference premium (RP) (described in 

section II.D.1. of this proposed rule) 

used to calculate the PTC would be 

adjusted for the BHP population health 

status, and in the case of a State that 

elects to use 2022 premiums for the 

basis of the BHP Federal payment, for 

the projected change in the premium 

from 2022 to 2023, to which the rates 

announced in the final payment 

methodology would apply. These 

adjustments are described in Equation 

(2a) and Equation (2b). Third, the PTC 

would be adjusted prospectively to 

reflect the mean, or average, net 

expected impact of income 

reconciliation on the combination of all 

persons enrolled in the BHP; this 

adjustment, the IRF, as described in 

section II.D.6. of this proposed rule, 

would account for the impact on the 

PTC that would have occurred had such 

reconciliation been performed. Finally, 

the rate is multiplied by 95 percent, 

consistent with section 1331(d)(3)(A)(i) 

of the ACA. We note that in the 

situation where the average contribution 

amount of an enrollee would exceed the 

adjusted reference premium, we would 

calculate the PTC to be equal to 0 and 

would not allow the value of the PTC 

to be negative. 

We propose using Equation (1) to 

calculate the PTC rate, consistent with 

the methodology described above: 

PTCa,g,c,h,i = Premium tax credit portion of 

BHP payment rate 

a = Age range 

g = Geographic area 

c = Coverage status (self-only or applicable 

category of family coverage) obtained 

through BHP 

h = Household size 

i = Income range (as percentage of FPL) 

ARPa,g,c = Adjusted reference premium 

Ih,i,j = Income (in dollars per month) at each 

1 percentage-point increment of FPL 

j = jth percentage-point increment FPL 

n = Number of income increments used to 

calculate the mean PTC 

PTCFh,i,j = Premium tax credit formula 

percentage 

IRF = Income reconciliation factor 

Equation (2a) and Equation (2b): 

Adjusted Reference Premium Variable 

(used in Equation 1) 

As part of the calculations for the PTC 

component, we propose to continue to 

calculate the value of the adjusted 

reference premium as described below. 

Consistent with the existing approach, 

we are proposing to allow States to 

choose between using the actual current 

year premiums or the prior year’s 

premiums multiplied by the premium 

trend factor (PTF) (as described in 

section II.E. of this proposed rule). 

Below we describe how we would 

continue to calculate the adjusted 

reference premium under each option. 

In the case of a State that elected to 

use the reference premium (RP) based 

on the current program year (for 

example, 2023 premiums for the 2023 

program year), we propose to calculate 

the value of the adjusted reference 

premium as specified in Equation (2a). 

The adjusted reference premium will be 

equal to the RP, which would be based 

on the second lowest cost silver plan 

premium in the applicable program 

year, multiplied by the BHP population 

health factor (PHF) (described in section 

II.D.3. of this proposed rule), which 

would reflect the projected impact that 

enrolling BHP-eligible individuals in 

QHPs through an Exchange would have 

had on the average QHP premium, and 

multiplied by the PAF (described in 

section II.D.2. of this proposed rule), 

which would account for the change in 

silver-level premiums due to the 

discontinuance of CSR payments. We 

also propose to multiply this by the 

section 1332 waiver factor (WF) 

(described in section II.D.7 of this 

proposed rule), as applicable. 

ARPa,g,c = Adjusted reference premium 

a = Age range 

g = Geographic area 

c = Coverage status (self-only or applicable 

category of family coverage) obtained 

through BHP 

RPa,g,c = Reference premium 

PHF = Population health factor 

PAF = Premium adjustment factor 

WFg = Section 1332 waiver factor 

In the case of a State that elected to 

use the RP based on the prior program 

year (for example, 2022 premiums for 

the 2023 program year, as described in 

more detail in section II.E. of this 

proposed rule), we propose to calculate 

the value of the adjusted reference 

premium as specified in Equation (2b). 

The adjusted reference premium will be 

equal to the RP, which would be based 

on the second lowest cost silver plan 

premium in 2022, multiplied by the 

BHP PHF (described in section II.D.3. of 

this proposed rule), which would reflect 

the projected impact that enrolling BHPeligible individuals in QHPs on an 

Exchange would have had on the 

average QHP premium, multiplied by 


lotter on DSK11XQN23PROD with PROPOSALS1EP25MY22.001</GPH> EP25MY22.002</GPH>

[ 'f,-Jh .. xPTCFh--i Equation (1): PTCa,g,c,h,i = ARP a,g,c - 'l ,,,'] n ,,,'] X IRF X 95% 

Equation (2a): ARPa,g,c = RPa,g,c X PHF X PAF X WF9 
Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 31819 

5This curve is used to implement the ACA’s 3:1 

limit on age-rating in States that do not create an 

alternative rate structure to comply with that limit. 

The curve applies to all individual market plans, 

both within and outside the Exchange. The age 

bands capture the principal allowed age-based 

variations in premiums as permitted by this curve. 

The default age curve was updated for plan or 

policy years beginning on or after January 1, 2018 

to include different age rating factors between 

children 0–14 and for persons at each age between 

15 and 20. More information is available at https:// 

www.cms.gov/CCIIO/Programs-and-Initiatives/ 

Health-Insurance-Market-Reforms/Downloads/ 

StateSpecAgeCrv053117.pdf. Both children and 

adults under age 21 are charged the same premium. 

For adults age 21–64, the age bands in this notice 

divide the total age-based premium variation into 

the three most equally-sized ranges (defining size 

by the ratio between the highest and lowest 

premiums within the band) that are consistent with 

the age-bands used for risk-adjustment purposes in 

the HHS-Developed Risk Adjustment Model. For 

such age bands, see HHS-Developed Risk 

Adjustment Model Algorithm ‘‘Do It Yourself 

(DIY)’’ Software Instructions for the 2018 Benefit 

Year, April 4, 2019 Update, https://www.cms.gov/ 

CCIIO/Resources/Regulations-and-Guidance/ 

Downloads/Updated-CY2018-DIY-instructions.pdf. 

6 In this document, references to the ‘‘current 

methodology’’ refer to the 2022 program year 

methodology as outlined in the 2022 final BHP 

Payment Notice. 

7For example, a cell within a particular State 

might refer to ‘‘County Group 1,’’ ‘‘County Group 

2,’’ etc., and a table for the State would list all the 

counties included in each such group. These 

geographic areas are consistent with the geographic 

areas established under the 2014 Market Reform 

Rules. They also reflect the service area 

requirements applicable to QHPs, as described in 45 

CFR 155.1055, except that service areas smaller 

Continued 

the PAF (described in section II.D.2. of 

this proposed rule), which would 

account for the change in silver-level 

premiums due to the discontinuance of 

CSR payments, and multiplied by the 

PTF (described in section II.E. of this 

proposed rule), which would reflect the 

projected change in the premium level 

between 2022 and 2023. We also 

propose to multiply this by the WF 

(described in section II.D.7. of this 

proposed rule). 

ARPa,g,c = Adjusted reference premium 

a = Age range 

g = Geographic area 

c = Coverage status (self-only or applicable 

category of family coverage) obtained 

through BHP 

RPa,g,c = Reference premium 

PHF = Population health factor 

PAF = Premium adjustment factor 

PTF = Premium trend factor 

WFg = Section 1332 waiver factor 

Equation 3: Determination of Total 

Monthly Payment for BHP Enrollees in 

Each Rate Cell 

In general, the rate for each rate cell 

would be multiplied by the number of 

BHP enrollees in that cell (that is, the 

number of enrollees that meet the 

criteria for each rate cell) to calculate 

the total monthly BHP payment. This 

calculation is shown in Equation (3). 

PMT = Total monthly BHP payment 

PTCa,g,c,h,i = Premium tax credit portion of 

BHP payment rate 

CSRa,g,c,h,i = Cost sharing reduction portion of 

BHP payment rate 

Ea,g,c,h,i = Number of BHP enrollees 

a = Age range 

g = Geographic area 

c = Coverage status (self-only or applicable 

category of family coverage) obtained 

through BHP 

h = Household size 

i = Income range (as percentage of FPL) 

In this equation, we would assign a 

value of zero to the CSR part of the BHP 

payment rate calculation (CSRa,g,c,h,i) 

because there is presently no available 

appropriation from which we can make 

the CSR portion of any BHP payment. In 

the event that an appropriation for CSR 

payments for 2023 is made, we would 

determine whether and how to modify 

the CSR part of the BHP payment rate 

calculation (CSRa,g,c,h,i) or the PAF in the 

payment methodology. 

B. Federal BHP Payment Rate Cells 

Consistent with the previous payment 

methodologies, we propose that a State 

implementing a BHP will provide us an 

estimate of the number of BHP enrollees 

it projects will enroll in the upcoming 

BHP program quarter, by applicable rate 

cell, prior to the first quarter and each 

subsequent quarter of program 

operations until actual enrollment data 

is available. Upon our approval of such 

estimates as reasonable, we will use 

those estimates to calculate the 

prospective payment for the first and 

subsequent quarters of program 

operation until the State provides us 

with actual enrollment data for those 

periods. The actual enrollment data is 

required to calculate the final BHP 

payment amount and make any 

necessary reconciliation adjustments to 

the prior quarters’ prospective payment 

amounts due to differences between 

projected and actual enrollment. 

Subsequent quarterly deposits to the 

State’s trust fund would be based on the 

most recent actual enrollment data 

submitted to us. Actual enrollment data 

must be based on individuals enrolled 

for the quarter who the State found 

eligible and whose eligibility was 

verified using eligibility and verification 

requirements as agreed to by the State 

in its applicable BHP Blueprint for the 

quarter that enrollment data is 

submitted. Procedures will ensure that 

Federal payments to a State reflect 

actual BHP enrollment during a year, 

within each applicable category, and 

prospectively determined Federal 

payment rates for each category of BHP 

enrollment, with such categories 

defined in terms of age range (if 

applicable), geographic area, coverage 

status, household size, and income 

range, as explained above. 

We propose requiring the use of 

certain rate cells as part of the proposed 

methodology. For each State, we 

propose using rate cells that separate the 

BHP population into separate cells 

based on the five factors described as 

follows: 

Factor 1—Age: We propose to 

continue separating enrollees into rate 

cells by age (if applicable), using the 

following age ranges that capture the 

widest variations in premiums under 

HHS’s Default Age Curve: 5

• Ages 0–20. 

• Ages 21–34. 

• Ages 35–44. 

• Ages 45–54. 

• Ages 55–64. 

This proposed provision is unchanged 

from the current methodology.6

Factor 2—Geographic area: For each 

State, we propose separating enrollees 

into rate cells by geographic areas 

within which a single RP is charged by 

QHPs offered through the State’s 

Exchange. Multiple, non-contiguous 

geographic areas would be incorporated 

within a single cell, so long as those 

areas share a common RP.7 This 


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Equation (2b): ARPa,g,c = RPa,g,c X PHF X PAF X PTF X WF 9 

Equation (3): PMT = L[(PTCa,g,c,h,i + CSRa,g,c,h,i) X Ea,g,c,h,d 
31820 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 

than counties are addressed as explained in this 

notice. 

8The three lowest income ranges would be 

limited to lawfully present immigrants who are 

ineligible for Medicaid because of immigration 

status. 9See 81 FR at 10097. 

proposed provision is also unchanged 

from the current methodology. 

Factor 3—Coverage status: We 

propose to continue separating enrollees 

into rate cells by coverage status, 

reflecting whether an individual is 

enrolled in self-only coverage or persons 

are enrolled in family coverage through 

the BHP, as provided in section 

1331(d)(3)(A)(ii) of the ACA. Among 

individuals enrolled in family coverage 

through the BHP, separate rate cells, as 

explained below, would apply based on 

whether such coverage involves two 

adults alone or whether it involves 

children. This proposed provision is 

unchanged from the current 

methodology. 

Factor 4—Household size: We 

propose to continue the current 

methods for separating enrollees into 

rate cells by household size that States 

use to determine BHP enrollees’ 

household income as a percentage of the 

FPL under § 600.320 (Determination of 

eligibility for and enrollment in a 

standard health plan). We propose to 

require separate rate cells for several 

specific household sizes. For each 

additional member above the largest 

specified size, we propose to publish 

instructions for how we would develop 

additional rate cells and calculate an 

appropriate payment rate based on data 

for the rate cell with the closest 

specified household size. We propose to 

publish separate rate cells for household 

sizes of 1 through 10. This proposed 

provision is unchanged from the current 

methodology. 

Factor 5—Household Income: For 

households of each applicable size, we 

propose to continue the current 

methods for creating separate rate cells 

by income range, as a percentage of FPL. 

The PTC that a person would receive if 

enrolled in a QHP through an Exchange 

varies by household income, both in 

level and as a ratio to the FPL. Thus, we 

propose that separate rate cells would 

be used to calculate Federal BHP 

payment rates to reflect different bands 

of income measured as a percentage of 

FPL. We propose using the following 

income ranges, measured as a 

percentage of the FPL: 

• 0 to 50 percent of the FPL. 

• 51 to 100 percent of the FPL. 

• 101 to 138 percent of the FPL.8

• 139 to 150 percent of the FPL. 

• 151 to 175 percent of the FPL. 

• 176 to 200 percent of the FPL. 

This proposed provision is unchanged 

from the current methodology. 

These rate cells would be used only 

to calculate the Federal BHP payment 

amount. A State implementing a BHP 

would not be required to use these rate 

cells or any of the factors in these rate 

cells as part of the State payment to the 

standard health plans participating in 

the BHP or to help define BHP 

enrollees’ covered benefits, premium 

costs, or out-of-pocket cost-sharing 

levels. 

Consistent with the current 

methodology, we propose using 

averages to define Federal payment 

rates, both for income ranges and age 

ranges (if applicable), rather than 

varying such rates to correspond to each 

individual BHP enrollee’s age (if 

applicable) and income level. We 

believe that the proposed approach will 

increase the administrative feasibility of 

making Federal BHP payments and 

reduce the likelihood of inadvertently 

erroneous payments resulting from 

highly complex methodologies. We also 

believe this approach should not 

significantly change Federal payment 

amounts since, within applicable 

ranges, the BHP-eligible population is 

distributed relatively evenly. 

The number of factors contributing to 

rate cells, when combined, can result in 

over 350,000 rate cells, which can 

increase the complexity when 

generating quarterly payment amounts. 

In future years, and in the interest of 

administrative simplification, we will 

consider whether to combine or 

eliminate certain rate cells. 

C. Sources and State Data 

Considerations 

To the extent possible, unless 

otherwise provided, we intend to 

continue to use data submitted to the 

Federal government by QHP issuers 

seeking to offer coverage through the 

Exchange in the relevant BHP State to 

perform the calculations that determine 

Federal BHP payment cell rates. 

States operating a State Exchange in 

the individual market, however, must 

provide certain data, including 

premiums for second lowest cost silver 

plans, by geographic area, for CMS to 

calculate the Federal BHP payment rates 

in those States. We propose that States 

operating BHPs interested in obtaining 

the applicable 2023 program year 

Federal BHP payment rates for its State 

must submit such data accurately, 

completely, and as specified by CMS, by 

no later than October 15, 2022. If 

additional State data (that is, in addition 

to the second lowest cost silver plan 

premium data) are needed to determine 

the Federal BHP payment rate, such 

data must be submitted in a timely 

manner, and in a format specified by us 

to support the development and timely 

release of annual BHP Payment 

Methodologies. The specifications for 

data collection to support the 

development of BHP payment rates are 

published in CMS guidance and are 

available on the Basic Health Program 

page of Medicaid.gov, https://

www.medicaid.gov/sites/default/files/ 

2019-11/premium-data-collectiontool.zip. 

States operating a BHP must submit 

enrollment data to us on a quarterly 

basis and should be technologically 

prepared to begin submitting data at the 

start of their BHP, starting with the 

beginning of the first program year. This 

differs from the enrollment estimates 

used to calculate the initial BHP 

payment, which States would generally 

submit to CMS 60 days before the start 

of the first quarter of the program start 

date. This requirement is necessary for 

us to implement the payment 

methodology that is tied to a quarterly 

reconciliation based on actual 

enrollment data. 

We propose to continue the policy 

first adopted in the 2016 final BHP 

Payment Methodology that in States that 

have BHP enrollees who do not file 

Federal tax returns (non-filers), the State 

must develop a methodology to 

determine the enrollees’ household 

income and household size consistently 

with Exchange requirements.9 The State 

must submit this methodology to us at 

the time of their Blueprint submission. 

We reserve the right to approve or 

disapprove the State’s methodology to 

determine household income and 

household size for non-filers if the 

household composition and/or 

household income resulting from 

application of the methodology are 

different from what typically would be 

expected to result if the individual or 

head of household in the family were to 

file a tax return. States currently 

operating a BHP that wish to change the 

methodology for non-filers must submit 

a revised Blueprint outlining the 

revisions to its methodology, consistent 

with § 600.125. 

In addition, as the Federal payments 

are determined quarterly and the 

enrollment data is required to be 

submitted by the States to us quarterly, 

we propose that the quarterly payment 

be based on the characteristics of the 

enrollee at the beginning of the quarter 

(or their first month of enrollment in the 

BHP in each quarter). Thus, if an 

enrollee were to experience a change in 

county of residence, household income, 


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household size, or other factors related 

to the BHP payment determination 

during the quarter, the payment for the 

quarter would be based on the data as 

of the beginning of the quarter (or their 

first month of enrollment in the BHP in 

the applicable quarter). Payments would 

still be made only for months that the 

person is enrolled in and eligible for the 

BHP. We do not anticipate that this 

would have a significant effect on the 

Federal BHP payment. The States must 

maintain data that is consistent with 

CMS’ verification requirements, 

including auditable records for each 

individual enrolled, indicating an 

eligibility determination and a 

determination of income and other 

criteria relevant to the payment 

methodology as of the beginning of each 

quarter. 

Consistent with § 600.610 (Secretarial 

determination of BHP payment amount), 

the State is required to submit certain 

data in accordance with this notice. We 

require that this data be collected and 

validated by States operating a BHP, and 

that this data be submitted to CMS. 

D. Discussion of Specific Variables Used 

in Payment Equations 

1. Reference Premium (RP) 

To calculate the estimated PTC that 

would be allowed if BHP-eligible 

individuals enrolled in QHPs through 

an Exchange, we must calculate a RP 

because the PTC is based, in part, on the 

premiums for the applicable second 

lowest cost silver plan as explained in 

section II.D.5. of this proposed rule, 

regarding the premium tax credit 

formula (PTCF). The proposed method 

is unchanged from the current 

methodology except to update the 

reference years, and to provide 

additional methodological details to 

simplify calculations and to deal with 

potential ambiguities. Accordingly, for 

the purposes of calculating the BHP 

payment rates, the RP, in accordance 

with 26 U.S.C. 36B(b)(3)(C), is defined 

as the adjusted monthly premium for an 

applicable second lowest cost silver 

plan. The applicable second lowest cost 

silver plan is defined in 26 U.S.C. 

36B(b)(3)(B) as the second lowest cost 

silver plan of the individual market in 

the rating area in which the taxpayer 

resides that is offered through the same 

Exchange. We propose to use the 

adjusted monthly premium for an 

applicable second lowest cost silver 

plan in the applicable program year 

(2023) as the RP (except in the case of 

a State that elects to use the prior plan 

year’s premium as the basis for the 

Federal BHP payment for 2023, as 

described in section II.E. of this 

proposed rule). 

The RP would be the premium 

applicable to non-tobacco users. This is 

consistent with the provision in 26 

U.S.C. 36B(b)(3)(C) that bases the PTC 

on premiums that are adjusted for age 

alone, without regard to tobacco use, 

even for States that allow insurers to 

vary premiums based on tobacco use in 

accordance with 42 U.S.C. 

300gg(a)(1)(A)(iv). 

Consistent with the policy set forth in 

26 CFR 1.36B–3(f)(7), to calculate the 

PTC for those enrolled in a QHP through 

an Exchange, we propose not to update 

the payment methodology, and 

subsequently the Federal BHP payment 

rates, in the event that the second 

lowest cost silver plan used as the RP, 

or the lowest cost silver plan, changes 

(that is, terminates or closes enrollment 

during the year). 

The applicable second lowest cost 

silver plan premium will be included in 

the BHP payment methodology by age 

range (if applicable), geographic area, 

and self-only or applicable category of 

family coverage obtained through the 

BHP. 

We note that the choice of the second 

lowest cost silver plan for calculating 

BHP payments would rely on several 

simplifying assumptions in its selection. 

For the purposes of determining the 

second lowest cost silver plan for 

calculating PTC for a person enrolled in 

a QHP through an Exchange, the 

applicable plan may differ for various 

reasons. For example, a different second 

lowest cost silver plan may apply to a 

family consisting of two adults, their 

child, and their niece than to a family 

with two adults and their two children, 

because one or more QHPs in the 

family’s geographic area might not offer 

family coverage that includes the niece. 

We believe that it would not be possible 

to replicate such variations for 

calculating the BHP payment and 

believe that in the aggregate, they would 

not result in a significant difference in 

the payment. Thus, we propose to use 

the second lowest cost silver plan 

available to any enrollee for a given age, 

geographic area, and coverage category. 

This choice of RP relies on an 

assumption about enrollment in the 

Exchanges. In the payment 

methodologies for program years 2015 

through 2019, we had assumed that all 

persons enrolled in the BHP would have 

elected to enroll in a silver level plan if 

they had instead enrolled in a QHP 

through an Exchange (and that the QHP 

premium would not be lower than the 

value of the PTC). In the November 2019 

final BHP Payment Notice, we 

continued to use the second-lowest cost 

silver plan premium as the RP, but for 

the 2020 payments we changed the 

assumption about which metal tier 

plans enrollees would choose, by 

adding the MTSF. In the 2021 payment 

methodology, we continued to apply the 

MTSF. In the final 2022 payment 

methodology, we removed the MTSF. 

We propose to continue the approach 

taken in the final 2022 payment 

methodology and not apply the MTSF 

in this proposed 2023 payment 

methodology. 

We do not believe it is appropriate to 

adjust the payment for an assumption 

that some BHP enrollees would not have 

enrolled in QHPs for purposes of 

calculating the BHP payment rates, 

since section 1331(d)(3)(A)(ii) of the 

ACA requires the calculation of such 

rates as if the enrollee had enrolled in 

a QHP through an Exchange. 

The applicable age bracket (if any) 

will be one dimension of each rate cell. 

We propose to assume a uniform 

distribution of ages and estimate the 

average premium amount within each 

rate cell. We believe that assuming a 

uniform distribution of ages within 

these ranges is a reasonable approach to 

determining the total monthly payment 

for BHP enrollees. We also believe this 

approach would avoid potential 

inaccuracies that could otherwise occur 

in relatively small payment cells if age 

distribution were measured by the 

number of persons eligible or enrolled. 

We have used this approach starting 

since the 2015 program year. We believe 

that other approaches (than assuming 

uniform age distribution) could skew 

the calculation of the payment rates for 

each rate cell. Given the number of rate 

cells and the fact that in some cases the 

number of enrollees in a cell may be 

small (particularly for less common 

family sizes, smaller counties, etc.), we 

believe that using estimates of age 

distribution or historical data could 

skew results. We also believe a uniform 

age distribution is reasonably simple to 

use and avoids increasing burden on 

States to report data to CMS. We have 

found this approach reliable to date. 

We propose to use geographic areas 

based on the rating areas used in the 

Exchanges. We propose to define each 

geographic area so that the RP is the 

same throughout the geographic area. 

When the RP varies within a rating area, 

we propose defining geographic areas as 

aggregations of counties with the same 

RP. Although plans are allowed to serve 

geographic areas smaller than counties 

after obtaining our approval, we propose 

that no geographic area, for purposes of 

defining BHP payment rate cells, will be 

smaller than a county. We believe that 

the benefits of simplifying both the 


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10CMCS. ‘‘State Medicaid, CHIP and BHP Income 

Eligibility Standards Effective July 1, 2021.’’ 

11https://www.medicaid.gov/sites/default/files/ 

2019-11/final-admin-order-2018-revised-paymentmethodology.pdf. 

12Some examples of outliers or unreasonable 

adjustments include (but are not limited to) values 

over 100 percent (implying the premiums doubled 

or more because of the adjustment), values more 

than double the otherwise highest adjustment, or 

non-numerical entries. 

calculation of BHP payment rates and 

the operation of the BHP justify any 

impacts on Federal payment levels. 

Finally, in terms of the coverage 

category, we propose that Federal 

payment rates only recognize self-only 

and two-adult coverage, with exceptions 

that account for children who are 

potentially eligible for the BHP. First, in 

States that set the upper income 

threshold for children’s Medicaid and 

CHIP eligibility below 200 percent of 

FPL (based on modified adjusted gross 

income (MAGI)), children in households 

with incomes between that threshold 

and 200 percent of FPL would be 

potentially eligible for the BHP. 

Currently, the only States in this 

category are Idaho and North Dakota.10

Second, the BHP would include 

lawfully present immigrant children 

with household incomes at or below 200 

percent of FPL in States that have not 

exercised the option under sections 

1903(v)(4)(A)(ii) and 2107(e)(1)(E) of the 

Act to qualify all otherwise eligible, 

lawfully present immigrant children for 

Medicaid and CHIP. States that fall 

within these exceptions would be 

identified based on their Medicaid and 

CHIP State Plans, and the rate cells 

would include appropriate categories of 

BHP family coverage for children. For 

example, Idaho’s Medicaid and CHIP 

eligibility is limited to families with 

MAGI at or below 185 percent FPL. If 

Idaho implemented a BHP, Idaho 

children with household incomes 

between 185 and 200 percent could 

qualify. In other States, BHP eligibility 

will generally be restricted to adults, 

since children who are citizens or 

lawfully present immigrants and live in 

households with incomes at or below 

200 percent of FPL will qualify for 

Medicaid or CHIP, and thus be 

ineligible for a BHP under section 

1331(e)(1)(C) of the ACA, which limits 

a BHP to individuals who are ineligible 

for minimum essential coverage (as 

defined in 26 U.S.C. 5000A(f)). 

2. Premium Adjustment Factor (PAF) 

The PAF considers the premium 

increases in other States that took effect 

after we discontinued payments to 

issuers for CSRs provided to enrollees in 

QHPs offered through Exchanges. 

Despite the discontinuance of Federal 

payments for CSRs, QHP issuers are 

required to provide CSRs to eligible 

enrollees. As a result, many QHP issuers 

increased the silver-level plan 

premiums to account for those 

additional costs; adjustments and how 

those were applied (for example, to only 

silver-level plans or to all metal tier 

plans) varied across States. For the 

States operating BHPs in 2018, the 

increases in premiums were relatively 

minor, because the majority of enrollees 

eligible for CSRs (and all who were 

eligible for the largest CSRs) were 

enrolled in the BHP and not in QHPs on 

the Exchanges, and therefore issuers in 

BHP States did not significantly raise 

premiums to cover costs related to HHS 

not making CSR payments. 

In the Final Administrative Order and 

the 2019 through 2022 final BHP 

Payment Notices, we incorporated the 

PAF into the BHP payment 

methodologies to capture the impact of 

how other States responded to us 

ceasing to make CSR payments. We 

propose to include the PAF in the 2023 

payment methodology and to calculate 

it in the same manner as in the Final 

Administrative Order. In the event that 

an appropriation for CSR payments is 

made for 2023, we would determine 

whether and how to modify the PAF in 

the payment methodology. 

Under the Final Administrative 

Order,11 we calculated the PAF by using 

information sought from QHP issuers in 

each State and the District of Columbia, 

and we determined the premium 

adjustment that the responding QHP 

issuers made to each silver level plan in 

2018 to account for the discontinuation 

of CSR payments to QHP issuers. Based 

on the data collected, we estimated the 

median adjustment for silver level QHPs 

nationwide (excluding those in the two 

BHP States). To the extent that QHP 

issuers made no adjustment (or the 

adjustment was zero), this would be 

counted as zero in determining the 

median adjustment made to all silver 

level QHPs nationwide. If the amount of 

the adjustment was unknown—or we 

determined that it should be excluded 

for methodological reasons (for 

example, the adjustment was negative, 

an outlier, or unreasonable)—then we 

did not count the adjustment towards 

determining the median adjustment.12

The median adjustment for silver level 

QHPs is the nationwide median 

adjustment. 

For each of the two BHP States, we 

determined the median premium 

adjustment for all silver level QHPs in 

that State, which we refer to as the State 

median adjustment. The PAF for each 

BHP State equaled one plus the 

nationwide median adjustment divided 

by one plus the State median 

adjustment for the BHP State. In other 

words, 

PAF = (1 + Nationwide Median 

Adjustment) ÷ (1 + State Median 

Adjustment) 

To determine the PAF described 

above, we sought to collect QHP 

information from QHP issuers in each 

State and the District of Columbia to 

determine the premium adjustment 

those issuers made to each silver level 

plan offered through the Exchange in 

2018 to account for the end of CSR 

payments. Specifically, we sought 

information showing the percentage 

change that QHP issuers made to the 

premium for each of their silver level 

plans to cover benefit expenditures 

associated with the CSRs, given the lack 

of CSR payments in 2018. This 

percentage change was a portion of the 

overall premium increase from 2017 to 

2018. 

According to our 2018 records, there 

were 1,233 silver-level QHPs operating 

on Exchanges in 2018. Of these 1,233 

QHPs, 318 QHPs (25.8 percent) 

responded to our request for the 

percentage adjustment applied to silverlevel QHP premiums in 2018 to account 

for the discontinuance of HHS making 

CSR payments. These 318 QHPs 

operated in 26 different States, with 10 

of those States running State based 

exchanges (SBEs) (while we requested 

information only from QHP issuers in 

States serviced by an FFE, many of 

those issuers also had QHPs in State 

Exchanges and submitted information 

for those States as well). Thirteen of 

these 318 QHPs were in New York (and 

none were in Minnesota). Excluding 

these 13 QHPs from the analysis, the 

nationwide median adjustment was 20.0 

percent. Of the 13 QHPs in New York 

that responded, the State median 

adjustment was 1.0 percent. We believe 

that this is an appropriate adjustment 

for QHPs in Minnesota, as well, based 

on the observed changes in New York’s 

QHP premiums in response to the 

discontinuance of CSR payments (and 

the operation of the BHP in that State) 

and our analysis of expected QHP 

premium adjustments for States with 

BHPs. We calculated the proposed PAF 

as (1 + 20%) ÷ (1 + 1%) (or 1.20/1.01), 

which results in a value of 1.188. 

We propose to continue to set the PAF 

to 1.188 for program year 2023, with one 

limited exception as described below. 

We believe that this value for the PAF 

continues to reasonably account for the 

increase in silver-level premiums 

experienced in non-BHP States that took 


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13See Kaiser Family Foundation, ‘‘Average 

Marketplace Premiums by Metal Tier, 2018–2021,’’ 

https://www.kff.org/health-reform/State-indicator/ 

average-marketplace-premiums-by-metal-tier/. 

14See Basic Health Program: Federal Funding 

Methodology for Program Years 2019 and 2020; 

Final Methodology, 84 FR 59529 at 59532 

(November 5, 2019). 

15See 79 FR at 14131. 

16See 45 CFR 153.400(a)(2)(iv) (BHP standard 

health plans are not required to submit reinsurance 

contributions), 153.20 (definition of ‘‘Reinsuranceeligible plan’’ as not including ‘‘health insurance 

coverage not required to submit reinsurance 

contributions’’), 153.230(a) (reinsurance payments 

under the national reinsurance parameters are 

available only for ‘‘Reinsurance-eligible plans’’). 

17These income ranges and this analysis of 

income apply to the calculation of the PTC. 

effect after the discontinuance of the 

CSR payments. We believe that the 

impact of the increase in silver-level 

premiums in 2023 can reasonably be 

expected to be similar to that in 2018, 

because the discontinuation of CSR 

payments has not changed. Moreover, 

we believe that States and QHP issuers 

have not significantly changed the 

manner and degree to which they are 

increasing QHP silver-level premiums to 

account for the discontinuation of CSR 

payments since 2018, and we expect the 

same for 2023. 

In addition, the percentage difference 

between the average second lowest-cost 

silver level QHP and the bronze-level 

QHP premiums has not changed 

significantly since 2018, and we do not 

expect a significant change for 2023. In 

2018, the average second lowest-cost 

silver level QHP premium was 41.1 

percent higher than the average lowestcost bronze-level QHP premium ($481 

and $341, respectively). In 2022, (the 

latest year for which premiums have 

been published), the difference was 

modestly lower; the average second 

lowest-cost silver-level QHP premium 

was 33.1 percent higher than the 

average lowest-cost bronze-level QHP 

premium ($438 and $329, 

respectively).13 In contrast, the average 

second lowest-cost silver-level QHP 

premium was only 23.8 percent higher 

than the average lowest-cost bronzelevel QHP premium in 2017 ($359 and 

$290, respectively).14 If there were a 

significant difference in the amounts 

that QHP issuers were increasing 

premiums for silver-level QHPs to 

account for the discontinuation of CSR 

payments over time, then we would 

expect the difference between the 

bronze-level and silver-level QHP 

premiums to change significantly over 

time, and that this would be apparent in 

comparing the lowest-cost bronze-level 

QHP premium to the second lowest-cost 

silver-level QHP premium. 

We propose to make one limited 

exception in setting the value of the 

PAF, all for States in the first year of 

implementing a BHP. In the case of a 

State in the first year of implementing 

a BHP, if the State chooses to use prior 

year second lowest cost silver plan 

(SLCSP) premiums to determine the 

BHP payment (for example, the 2022 

premiums for the 2023 program year), 

we propose to set the value of the PAF 

to 1.00. In this case, we believe that 

adjustment to the QHP premiums to 

account for the discontinuation of CSR 

payments would be included fully in 

the prior year premiums. If the State 

chooses to use the prior year premiums, 

then no further adjustment would be 

necessary for the BHP payments; 

therefore, the value of the PAF would be 

1.00. 

3. Population Health Factor (PHF) 

We propose that the PHF be included 

in the methodology to account for the 

potential differences in the average 

health status between BHP enrollees 

and persons enrolled through the 

Exchanges. To the extent that BHP 

enrollees would have been enrolled 

through an Exchange in the absence of 

a BHP in a State, the exclusion of those 

BHP enrollees in the Exchange may 

affect the average health status of the 

overall population and the expected 

QHP premiums. 

We currently do not believe that there 

is evidence that the BHP population 

would have better or poorer health 

status than the Exchange population. At 

this time, there continues to be a lack 

of data on the experience in the 

Exchanges that limits the ability to 

analyze the potential health differences 

between these groups of enrollees. More 

specifically, Exchanges have been in 

operation since 2014, and two States 

have operated BHPs since 2015, but data 

is not available to do the analysis 

necessary to determine if there are 

differences in the average health status 

between BHP and Exchange enrollees. 

In addition, differences in population 

health may vary across States. We also 

do not believe that sufficient data would 

be available to permit us to make a 

prospective adjustment to the PHF 

under § 600.610(c)(2) for the 2023 

program year. 

Given these analytic challenges and 

the limited data about Exchange 

coverage and the characteristics of BHPeligible consumers, we propose that the 

PHF continue to be 1.00 for program 

year 2023. 

In previous years BHP payment 

methodologies, we included an option 

for States to include a retrospective 

population health status adjustment. We 

propose that States be provided with the 

same option for 2023 to include a 

retrospective population health status 

adjustment in the certified 

methodology, which is subject to our 

review and approval. This option is 

described further in section II.F. of this 

proposed rule. Regardless of whether a 

State elects to include a retrospective 

population health status adjustment, we 

anticipate that, in future years, when 

additional data becomes available about 

Exchange coverage and the 

characteristics of BHP enrollees, we may 

propose a different PHF. 

While the statute requires 

consideration of risk adjustment 

payments and reinsurance payments 

insofar as they would have affected the 

PTC that would have been allowed for 

BHP-eligible individuals had they 

enrolled in QHPs, we are not proposing 

to require that a BHP’s standard health 

plans receive such payments. As 

explained in the BHP final rule, BHP 

standard health plans are not included 

in the Federally-operated risk 

adjustment program.15 Further, standard 

health plans did not qualify for 

payments under the transitional 

reinsurance program established under 

section 1341 of the ACA for the years 

the program was operational (2014 

through 2016).16 To the extent that a 

State operating a BHP determines that, 

because of the distinctive risk profile of 

BHP-eligible consumers, BHP standard 

health plans should be included in 

mechanisms that share risk with other 

plans in the State’s individual market, 

the State would need to use other 

methods for achieving this goal. 

4. Household Income (I) 

Household income is a significant 

determinant of the amount of the PTC 

that is provided for persons enrolled in 

a QHP through an Exchange. 

Accordingly, all BHP Payment 

Methodologies incorporate household 

income into the calculations of the 

payment rates through the use of 

income-based rate cells. We propose 

defining household income in 

accordance with the definition in 26 

U.S.C. 36B(d)(2)(A) and consistent with 

the definition in 45 CFR 155.300. 

Income would be measured relative to 

the FPL, which is updated periodically 

in the Federal Register by the Secretary 

under the authority of 42 U.S.C. 9902(2). 

In our proposed methodology, 

household size and income as a 

percentage of FPL would be used as 

factors in developing the rate cells. We 

propose using the following income 

ranges measured as a percentage of 

FPL: 17

• 0–50 percent. 

• 51–100 percent. 


lotter on DSK11XQN23PROD with PROPOSALS1
31824 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 

18See Table IV A1 from the 2020 Annual Report 

of the Boards of Trustees of the Federal Hospital 

Insurance and Federal Supplementary Medical 

Insurance Trust Funds, available at https://

www.cms.gov/files/document/2020-medicaretrustees-report.pdf. 

• 101–138 percent. 

• 139–150 percent. 

• 151–175 percent. 

• 176–200 percent. 

We further propose to assume a 

uniform income distribution for each 

Federal BHP payment cell. We believe 

that assuming a uniform income 

distribution for the income ranges 

proposed would be reasonably accurate 

for the purposes of calculating the BHP 

payment and would avoid potential 

errors that could result if other sources 

of data were used to estimate the 

specific income distribution of persons 

who are eligible for or enrolled in the 

BHP within rate cells that may be 

relatively small. 

Thus, when calculating the mean, or 

average, PTC for a rate cell, we propose 

to calculate the value of the PTC at each 

one percentage point interval of the 

income range for each Federal BHP 

payment cell and then calculate the 

average of the PTC across all intervals. 

This calculation would rely on the PTC 

formula described in section II.D.5. of 

this proposed rule. 

As the APTC for persons enrolling in 

QHPs would be calculated during the 

open enrollment period based on their 

projected household income for the 

coverage year, and that income would 

be measured against the FPL at that 

time, we propose to adjust the FPL by 

multiplying the FPL by a projected 

increase in the CPI–U between the time 

that the BHP payment rates are 

calculated and the QHP open 

enrollment period, if the FPL is 

expected to be updated during that time. 

We propose that the projected increase 

in the CPI–U would be based on the 

intermediate inflation forecasts from the 

most recent Old-Age, Survivors, and 

Disability Insurance (OASDI) and 

Medicare Trustees Reports.18

5. Premium Tax Credit Formula (PTCF) 

In Equation 1 described in section 

II.A.1. of this proposed rule, we propose 

to use the formula described in 26 

U.S.C. 36B(b) to calculate the estimated 

PTC that would be allowed for a person 

enrolled in a QHP on an Exchange as 

part of the BHP payment methodology. 

This formula is used to determine the 

contribution amount (the amount of 

premium that an individual or 

household theoretically would be 

required to pay for coverage in a QHP 

on an Exchange), which is based on (A) 

the household income; (B) the 

household income as a percentage of 

FPL for the family size; and (C) the 

schedule specified in 26 U.S.C. 

36B(b)(3)(A) and shown below. 

The difference between the 

contribution amount and the adjusted 

monthly premium (that is, the monthly 

premium adjusted for the age of the 

enrollee) for the applicable second 

lowest cost silver plan is the estimated 

amount of the PTC that would be 

provided for the enrollee. 

The PTC amount allowed for a person 

enrolled in a QHP through an Exchange 

is calculated in accordance with the 

methodology described in 26 U.S.C. 

36B(b)(2). The amount is equal to the 

lesser of the premium for the plan in 

which the person or household enrolls, 

or the adjusted premium for the 

applicable second lowest cost silver 

plan minus the contribution amount. 

The applicable percentage is defined 

in 26 U.S.C. 36B(b)(3)(A) and 26 CFR 

1.36B–3(g) as the percentage that 

applies to a taxpayer’s household 

income that is within an income tier, 

increasing on a sliding scale in a linear 

manner from an initial premium 

percentage to a final premium 

percentage. We propose to continue to 

use applicable percentages to calculate 

the estimated PTC that would be 

allowed for a person enrolled in a QHP 

on an Exchange as part of the BHP 

payment methodology as part of 

Equation 1. 

The Internal Revenue Service 

publishes the applicable percentages 

each year. They are not yet available for 

2023, but we propose to apply them to 

the 2023 payment methodology upon 

publication. 

6. Income Reconciliation Factor (IRF) 

For persons who enroll, or enroll a 

family member, in a QHP through an 

Exchange for which APTC is paid, a 

reconciliation is required by 26 U.S.C. 

36B(f) following the end of the coverage 

year. The reconciliation requires the 

enrolling individual (the taxpayer) to 

compare the total amount of APTC paid 

on behalf of the taxpayer or a family 

member of the taxpayer for the year of 

coverage to the total amount of PTC 

allowed for the year of coverage, based 

on household circumstances shown on 

the Federal income tax return. If the 

amount of a taxpayer’s PTC exceeds the 

APTC paid on behalf of the taxpayer, 

the difference reduces the taxpayer’s tax 

liability for the year of coverage or 

results in a refund to the extent it 

exceeds the taxpayer’s tax liability. If 

the APTC exceeds the PTC allowed, the 

taxpayer must increase his or her tax 

liability for the year of coverage by the 

difference, subject to any limitations in 

statute or regulation. 

Section 1331(e)(2) of the ACA 

specifies that an individual eligible for 

the BHP may not be treated as a 

‘‘qualified individual’’ under section 

1312 of the ACA who is eligible for 

enrollment in a QHP offered through an 

Exchange. We are defining ‘‘eligible’’ to 

mean anyone for whom the State agency 

or the Exchange assesses or determines, 

based on the single streamlined 

application or renewal form, as eligible 

for enrollment in the BHP. Because 

APTC is paid only on behalf of 

individuals enrolled in a QHP, 

individuals determined or assessed as 

eligible for a BHP are not eligible for 

APTC for coverage in the Exchange. 

Consequently, unlike Exchange 

enrollees for whom APTC is paid, no 

reconciliation is required of BHP 

enrollees, on whom the BHP payment 

methodology is generally based. 

Nonetheless, there may still be 

differences between a BHP enrollee’s 

household income reported at the 

beginning of the year and the actual 

household income for the year. These 

may include small changes (reflecting 

changes in hourly wage rates, hours 

worked per week, and other fluctuations 

in income during the year) and large 

changes (reflecting significant changes 

in employment status, hourly wage 

rates, or substantial fluctuations in 

income). There may also be changes in 

household composition. Thus, we 

believe that using unadjusted income as 

reported prior to the BHP program year 

may result in calculations of estimated 

PTC that are inconsistent with the 

actual household incomes of BHP 

enrollees during the year. Even if the 

BHP adjusts household income 

determinations and corresponding 

claims of Federal payment amounts 

based on household reports during the 

year or data from third-party sources, 

such adjustments may not fully capture 

the effects of tax reconciliation that BHP 

enrollees would have experienced had 

they been enrolled in a QHP through an 

Exchange with APTC. 

Therefore, in accordance with current 

practice, we propose including in 

Equation 1 an adjustment, the IRF, that 

would account for the difference 

between calculating estimated PTC 

using: (a) Household income relative to 

FPL as determined at initial application 

and potentially revised mid-year under 

§ 600.320, for purposes of determining 

BHP eligibility and claiming Federal 

BHP payments; and (b) actual 

household income relative to FPL for 

the plan year, as it would be reflected 

on individual Federal income tax 

returns. This adjustment would seek 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 31825 

19See section 1332(b)(1)(A) through (D) of the 

ACA, 45 CFR 155.1308(f)(3)(iv)(A) through (D), and 

31 CFR 33.108(f)(3)(iv)(A) through (D). 

20See the CMS section 1332 waiver website for 

information on approved waivers: https://

www.cms.gov/CCIIO/Programs-and-Initiatives/ 

State-Innovation-Waivers/Section_1332_State_

Innovation_Waivers-. 

21For example, some State reinsurance programs 

under a section 1332 waiver have reduced 

Statewide average QHP premiums by 4 percent to 

40 percent compared to what premiums would have 

been without the waiver. See Data Brief on Section 

1332 waivers: State-based reinsurance programs 

available here https://www.cms.gov/CCIIO/ 

Programs-and-Initiatives/State-Innovation-Waivers/ 

Downloads/1332-Data-Brief-Aug2021.pdf. 

22See section 1332(a)(3) of the ACA. See also 

Patient Protection and Affordable Care Act; 

Updating Payment Parameters and Improving 

Health Insurance Markets for 2022 and Beyond; 

Final Rule, 86 FR 53412 at 53482–53483 (Sep 27, 

2021). 

23See 31 CFR 33.128 and 45 CFR 155.1328. 

24See the CMS section 1332 website for 

information on pass-through funding here: https:// 

www.cms.gov/CCIIO/Programs-and-Initiatives/ 

Continued 

prospectively to capture the average 

effect of income reconciliation 

aggregated across the BHP population 

had those BHP enrollees been subject to 

reconciliation after APTC was paid for 

coverage through QHPs. Consistent with 

the methodology used in past years, we 

propose estimating reconciliation effects 

based on tax data for 2 years, reflecting 

income and tax unit composition 

changes over time among BHP-eligible 

individuals. 

OTA maintains a model that 

combines detailed tax and other data, 

including Exchange enrollment and PTC 

claimed, to project Exchange premiums, 

enrollment, and tax credits. For each 

enrollee, this model compares the APTC 

based on household income and family 

size estimated at the point of enrollment 

with the PTC based on household 

income and family size reported at the 

end of the tax year. The former reflects 

the determination using enrollee 

information furnished by the applicant 

and tax data furnished by the IRS. The 

latter would reflect the PTC eligibility 

based on information on the tax return, 

which would have been determined if 

the individual had not enrolled in the 

BHP. Consistent with prior years, we 

propose to use the ratio of the 

reconciled PTC to the initial estimation 

of PTC as the IRF in Equation (1) for 

estimating the PTC portion of the BHP 

payment rate. 

We believe that it is appropriate to 

distinguish between the IRF for 

Medicaid expansion States and nonExpansion States to remove data for 

those with incomes under 138 percent 

of FPL for Medicaid expansion States. 

This is the same approach that we 

finalized in the 2021 and 2022 final 

BHP Payment Notices. Therefore, we 

propose to set the value of the IRF for 

States that have expanded Medicaid 

equal to the value of the IRF for incomes 

between 138 and 200 percent of FPL 

and the value of the IRF for States that 

have not expanded Medicaid equal to 

the value of the IRF for incomes 

between 100 and 200 percent of FPL. 

This gives an IRF of 100.66 percent for 

States that have expanded Medicaid and 

101.63 percent for States that have not 

expanded Medicaid for program year 

2023. Both current States operating a 

BHP have expanded Medicaid 

eligibility, and therefore we propose an 

IRF of 100.66 percent. 

We propose to use these values for the 

IRF in Equations (1) for calculating the 

PTC portion of the BHP payment rate. 

7. Section 1332 Waiver Factor (WF) 

Section 1332 of the ACA permits 

States to apply for a waiver from certain 

ACA requirements to pursue innovative 

strategies for providing their residents 

with access to high quality, affordable 

health insurance coverage while 

retaining the basic protections of the 

ACA. Section 1332 of the ACA 

authorizes the Secretary of HHS and the 

Secretary of the Treasury (collectively, 

the Secretaries) to approve a State’s 

request to waive all or any of the 

following requirements falling under 

their respective jurisdictions for health 

insurance coverage within a State for 

plan years beginning on or after January 

1, 2017: (1) Part I of subtitle D of Title 

I of the ACA (relating to the 

establishment of QHPs); (2) Part II of 

subtitle D of Title I of the ACA (relating 

to consumer choices and insurance 

competition through Health Benefit 

Exchanges); (3) Section 1402 of the ACA 

(relating to reduced cost sharing for 

individuals enrolling in QHPs); and (4) 

Sections 36B (relating to refundable 

credits for coverage under a QHP), 

4980H (relating to shared responsibility 

for employers regarding health 

coverage), and 5000A (relating to the 

requirement to maintain minimum 

essential coverage) of the Internal 

Revenue Code (Code). 

Under section 1332 of the ACA, the 

Secretaries may exercise their discretion 

to approve a request for a section 1332 

waiver only if the Secretaries determine 

that the proposal for the section 1332 

waiver meets the following four 

requirements, referred to as the statutory 

guardrails: (1) The proposal will provide 

coverage that is at least as 

comprehensive as coverage defined in 

section 1302(b) of the ACA and offered 

through Exchanges established under 

title I of the ACA, as certified by the 

Office of the Actuary of CMS, based on 

sufficient data from the State and from 

comparable States about their 

experience with programs created by the 

ACA and the provisions of the ACA that 

would be waived; (2) the proposal will 

provide coverage and cost-sharing 

protections against excessive out-ofpocket spending that are at least as 

affordable for the State’s residents as 

would be provided under title I of the 

ACA; (3) the proposal will provide 

coverage to at least a comparable 

number of the State’s residents as would 

be provided under title I of the ACA; 

and (4) the proposal will not increase 

the Federal deficit.19 The Secretaries 

retain their discretionary authority 

under section 1332 of the ACA to deny 

waivers when appropriate given 

consideration of the application as a 

whole, even if an application meets the 

four statutory guardrails. Sixteen (16) 

States are operating approved section 

1332 waivers in plan year 2022.20

Section 1332(a)(3) of the ACA directs 

the Secretaries to pay pass-through 

funding to the State for the purpose of 

implementing the State’s section 1332 

waivers. Under an approved section 

1332 waiver, a State may receive passthrough funding associated with the 

resulting reductions in Federal spending 

on Exchange financial assistance (PTC, 

CSRs, and small business tax credits 

(SBTC)) consistent with the statute and 

reduced as necessary to ensure deficit 

neutrality. These payments are made in 

compliance with the applicable waiver 

plans, the specific terms and conditions 

governing the waiver, and 

accompanying statutory and regulatory 

requirements. Specifically, section 

1332(a)(3) of the ACA provides that 

pass-through funding shall be paid to 

States for purposes of implementing the 

States’ waiver plans. The specific 

impacts of the waivers on premiums 

and PTCs vary across States and plan 

years, depending, in part, on the State’s 

approved section 1332 waiver plan and 

the design of the State’s program.21 31 

CFR 33.122 and 45 CFR 155.1322 

specify that pass-through funding 

amounts will be calculated annually by 

the Departments for States with 

approved waivers.22 Additionally, 

section 1332(a)(4)(B)(v) of the ACA 

requires that the Secretaries issue 

regulations that provide a process for 

periodic evaluations by the Secretaries 

of the program under the waiver.23 As 

implemented by the Departments, the 

periodic evaluations include evaluation 

of pass-through funding and associated 

reporting and methodologies. 

Information on the pass-through 

funding amounts is made available 

publicly on the CMS website.24


lotter on DSK11XQN23PROD with PROPOSALS1
31826 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 

State-Innovation-Waivers/Section_1332_State_

Innovation_Waivers-. 25 86 FR 7793 (February 2, 2021). 

26Office of Tax Analysis, Department of Treasury, 

‘‘Method for Calculation of Section 1332 

Reinsurance Waiver 2021 Premium Tax Credit Passthrough Amounts,’’ March 2021. 

27 42 CFR 600.610(c)(2)(iii). 

28 42 CFR 600.610(c)(2)(iii). 

With regard to a State that operates a 

BHP and an approved section 1332 

waiver, the Federal BHP program can 

have an impact on section 1332 waiver 

pass-through funding for that State. For 

example, the existence of a Federal BHP 

program impacts aggregate PTC amounts 

in the State because BHP moves some 

individuals, who would otherwise be 

eligible for PTC, out of Exchange 

coverage. Similarly, as the section 1332 

waiver may impact the benchmark QHP 

premiums and the PTCs in a State, the 

waiver may also have an effect on the 

calculation of Federal BHP payments in 

a State operating a BHP. 

If the section 1332 waiver reduces 

premiums for eligible enrollees, then 

this can lead to a reduction in the 

amount of PTC available for eligible 

enrollees (in particular, if the second 

lowest-cost silver QHP premium is 

reduced). While this may not have an 

effect on particular subsidized QHP 

enrollees, as their share of the premium 

would remain unchanged, it would 

reduce the amount of Federal outlays for 

PTC. With respect to a State’s approved 

section 1332 waiver, the amount of 

Federal pass-through funding would 

equal the difference between (1) the 

amount, determined annually by the 

Secretaries, of PTC under section 36B of 

the Code, the SBTC under section 45R 

of the Code, or CSRs under part I of 

subtitle E of the ACA (collectively 

referred to as Exchange financial 

assistance) that individuals and small 

employers in the State would otherwise 

be eligible for had the State not received 

approval for its section 1332 waiver and 

(2) the amount of Exchange financial 

assistance that individuals and small 

employers are eligible for with the 

approved section 1332 waiver in place. 

The section 1332 waiver pass-through 

amount would not be increased to 

account for any savings or decreases in 

Federal spending other than the 

reduction in Exchange financial 

assistance. This pass-through amount 

for the section 1332 waiver would be 

reduced by any net increase in Federal 

spending or net decrease in Federal 

revenue if necessary to ensure deficit 

neutrality. The State must use this passthrough funding only for purposes of 

implementing the plan associated with 

the State’s approved section 1332 

waiver. Therefore, in States that operate 

only an approved section 1332 waiver, 

the net expected Federal spending is the 

same, even though the amount of PTC 

paid by the Federal government is 

lower. 

However, for a State that operates a 

BHP and a section 1332 waiver, a 

reduction in the expected Federal PTC 

payments due to the operation of the 

waiver leads directly to a reduction in 

Federal BHP funding to the State under 

the current BHP methodology. The 

amount of PTC and CSRs individuals 

are eligible for in the Exchange is 

dependent on the cost of the SLCSP 

premium, and the cost of the SLCSP 

premium is the basis for determining 

the amount of Federal funding for its 

BHP program. Therefore, a reduction in 

SLCSP premium due to a section 1332 

waiver, also reduces the Federal BHP 

payment. These reductions may be 

substantial. For example, in Minnesota 

in 2021, the State’s section 1332 waiver 

resulted in a State-wide average 

premium reduction of 21.3 percent 

compared to without the waiver. This 

led to a similar reduction in PTC paid, 

and thus a similar reduction in Federal 

BHP funding. While the PTC allowed 

for persons eligible for subsidized 

coverage in the Exchange is lower with 

the section 1332 waiver in place, the 

reduction in premiums means that the 

net benefit to those individuals has not 

decreased—rather, Federal funding has 

been shifted from PTC in part to passthrough payments made to the State. 

On January 28, 2021, President Biden 

issued Executive Order (E.O.) 14009 

directing HHS, and the heads of all 

other executive departments and 

agencies with authorities and 

responsibilities related to Medicaid and 

the ACA, to review all existing 

regulations, orders, guidance 

documents, policies, and any other 

similar agency actions to determine 

whether such agency actions are 

inconsistent with the policy set forth in 

section 1 of E.O. 14009 to protect and 

strengthen the ACA.25 As part of this 

review, we considered the impact of 

approved section 1332 waivers on 

Federal BHP funding and vice versa in 

States that elect to operate both a BHP 

and an approved section 1332 waiver, 

including the impact in Minnesota, 

cited above. 

We determined it is appropriate to 

account for the impact of an approved 

section 1332 waiver when calculating 

Federal BHP payments. This proposal is 

necessary for consistency with E.O. 

14009 and this Administration’s goal of 

protecting and strengthening the ACA 

and making high-quality, affordable 

health care accessible for every 

American. We believe that it is 

appropriate to consider the amount of 

pass-through funding associated with 

the section 1332 waiver as part of the 

PTC for the purpose of determining the 

BHP payments. As described 

previously, while the PTC allowed may 

be reduced under the section 1332 

waiver, the benefit to the persons 

eligible for such subsidized coverage 

has not decreased. Considering the 

section 1332 pass-through funding as 

part of the PTC for purposes of 

determining the BHP payment also 

counteracts the reduction in Federal 

BHP funding for States that lawfully 

exercise the flexibility Congress 

provided to implement both of the 

alternative State programs under 

sections 1331 and 1332 of the ACA. 

Therefore, we are proposing to add the 

section 1332 WF for the 2023 BHP 

payment methodology. We propose that 

this factor would be calculated as the 

ratio of (1) the SLCSP premium that 

would have been in place without the 

waiver in place for the plan year to (2) 

the SLCSP in place with the waiver in 

place for the plan year, as determined 

for the purposes of calculating the 

section 1332 waiver pass-through 

payment.26 This factor would be 

calculated specific to each State and 

geographic area, to the extent that the 

factor may vary across geographic areas. 

The SLCSP premiums with and without 

the waiver, as provided by the State as 

part of the section 1332 waiver 

information submitted to the 

Secretaries, would be reviewed by CMS 

and used to calculate the factor. In the 

event that the State’s section 1332 

waiver SLCSP with- and without-waiver 

information is not available prior to the 

calculation of the Federal BHP 

payments in the fall prior to the start of 

the BHP program year, we propose to 

temporarily use values from the prior 

year’s waiver reporting, and then update 

the payment rates and payments once 

the values for the applicable plan year 

are known.27 In the case that prior-year 

data is not available, such as in the case 

of a new waiver or waiver amendment 

that could delay the timeline by which 

the State would receive BHP funding, 

we propose to initially calculate the 

rates without adjustment for the section 

1332 WF, and then to adjust payment 

rates and payments using the updated 

waiver data once it becomes available.28

We seek public comment on this 

proposal. 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 31827 

E. State Option To Use Prior Program 

Year QHP Premiums for BHP Payments 

In the interest of allowing States 

greater certainty in the total BHP 

Federal payments for a given plan year, 

we have given States the option to have 

their final Federal BHP payment rates 

calculated using a projected adjusted 

reference premium (that is, using 

premium data from the prior program 

year multiplied by the PTF, as described 

in Equation (2b)). We propose to require 

States to make their election to have 

their final Federal BHP payment rates 

calculated using a projected adjusted 

reference premium by the later of (1) 

May 15 of the year preceding the 

applicable program year or (2) 60 days 

after the publication of the final notice. 

Because we are publishing this 

proposed rule after May 15, 2022, we 

propose that States be required to 

inform CMS in writing of their election 

for the 2023 program year by 60 days 

after the publication of the final notice. 

With the addition of the section 1332 

WF, there is the possibility that using 

the previous year’s QHP premiums 

multiplied by the PTF could lead to 

unexpected results if there are 

significant changes to the State’s 

approved section 1332 waiver, 

including changes that could occur at 

the start or the end of the waiver. For 

example, if a State were to implement 

a section 1332 waiver in 2023 that 

lowered premiums significantly, and the 

State then chose to use the prior year’s 

premiums (that is, 2022 plan year 

premiums) multiplied by the PTF, this 

could lead to BHP payment well in 

excess of what would have been paid in 

the Exchanges when the WF is added to 

the methodology. Similarly, if a State 

were to end its section 1332 waiver and 

choose to use the prior year’s premiums, 

the BHP payment could be less than 

what would otherwise be expected. 

Therefore, we also propose that in the 

following cases, the current year QHP 

premiums would have to be used for 

calculating BHP payments with regard 

to section 1332 waivers: (1) A State 

implements a new section 1332 waiver 

that begins at the start of the BHP 

program year; (2) a State ends a section 

1332 waiver in the year prior to the start 

of the BHP program year; or (3) the 

percentage difference between the with 

and without waiver premiums used to 

determine the section 1332 waiver passthrough funding amount (and used to 

determine the WF) changes by 5 or more 

percentage points from the prior year. 

The percentage difference would be 

measured based on the enrollmentweighted average of the with and 

without waiver premiums. We believe 

that these three scenarios (the start of a 

new waiver, the end of a waiver, and a 

significant change to a waiver) reflect all 

relevant scenarios in which changes to 

a section 1332 waiver would lead to a 

significant error in the calculation of 

BHP payments if the prior year 

premiums were used in the BHP 

payment methodology. We believe that 

this proposed requirement to use the 

current year QHP premiums in these 

limited circumstances would avoid an 

incorrect calculation of BHP payments 

due to changes related to the section 

1332 waiver. 

We seek public comments on this 

proposal. 

For Equation (2b), we propose to 

continue to define the PTF, with minor 

proposed changes in calculation sources 

and methods, as follows: 

PTF: In the case of a State that would 

elect to use the 2022 premiums as the 

basis for determining the 2023 BHP 

payment, it would be appropriate to 

apply a factor that would account for 

the change in health care costs between 

the year of the premium data and the 

BHP program year. This factor would 

approximate the change in health care 

costs per enrollee, which would 

include, but not be limited to, changes 

in the price of health care services and 

changes in the utilization of health care 

services. This would provide an 

estimate of the adjusted monthly 

premium for the applicable SLCSP that 

would be more accurate and reflective 

of health care costs in the BHP program 

year. 

For the PTF we propose to use the 

annual growth rate in private health 

insurance expenditures per enrollee 

from the National Health Expenditure 

(NHE) projections, developed by the 

Office of the Actuary of CMS (https://

www.cms.gov/Research-Statistics-Dataand-Systems/Statistics-Trends-andReports/NationalHealthExpendData/ 

NationalHealthAccountsProjected). 

Based on these projections, for BHP 

program year 2023, we propose that the 

PTF would be 4.6 percent. 

We note that the increase in 

premiums for QHPs from one year to the 

next may differ from the PTF developed 

for the BHP funding methodology for 

several reasons. In particular, we note 

that the second lowest cost silver plan 

may be different from 1 year to the next. 

This may lead to the PTF being greater 

than or less than the actual change in 

the premium of the SLCSP. 

F. State Option To Include Retrospective 

State-Specific Health Risk Adjustment 

in Certified Methodology 

To determine whether the potential 

difference in health status between BHP 

enrollees and consumers in an Exchange 

would affect the PTC allowed and risk 

adjustment payments that would have 

otherwise been made had BHP enrollees 

been enrolled in coverage through an 

Exchange, we propose to continue to 

provide States implementing the BHP 

the option to propose and to implement, 

as part of the certified methodology, a 

retrospective adjustment to the Federal 

BHP payments to reflect the actual value 

that would be assigned to the PHF (or 

risk adjustment) based on data 

accumulated during that program year 

for each rate cell. 

We acknowledge that there is 

uncertainty with respect to this factor 

due to the lack of available data to 

analyze potential health differences 

between the BHP and QHP populations, 

which is why, absent a State election, 

we propose to use a value for the PHF 

(see section II.D.3. of this proposed rule) 

to determine a prospective payment rate 

which assumes no difference in the 

health status of BHP enrollees and QHP 

enrollees. There is considerable 

uncertainty regarding whether the BHP 

enrollees will pose a greater risk or a 

lesser risk compared to the QHP 

enrollees, how to best measure such 

risk, the potential effect such risk would 

have had on PTC, and risk adjustment 

that would have otherwise been made 

had BHP enrollees been enrolled in 

coverage through an Exchange. 

However, to the extent that a State 

would develop an approved protocol to 

collect data and effectively measure the 

relative risk and the effect on Federal 

payments of PTC and CSRs, we propose 

to continue to permit a retrospective 

adjustment that would measure the 

actual difference in risk between the 

two populations to be incorporated into 

the certified BHP payment methodology 

and used to adjust payments in the 

previous year. 

For a State electing the option to 

implement a retrospective population 

health status adjustment as part of the 

BHP payment methodology applicable 

to the State, we propose requiring the 

State to submit a proposed protocol to 

CMS, which would be subject to 

approval by CMS and would be required 

to be certified by the Chief Actuary of 

CMS, in consultation with the OTA. We 

propose to apply the same protocol for 

the population health status adjustment 

as what is set forth in guidance in 

Considerations for Health Risk 

Adjustment in the Basic Health Program 

in Program Year 2015 (https://

www.medicaid.gov/sites/default/files/ 

2019-11/risk-adjustment-and-bhp-whitepaper.pdf). We propose requiring a State 

to submit its proposed protocol for the 

2023 program year by the later of 


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August 1, 2022, or 60 days after the 

publication of the final notice. We 

propose that this submission would also 

need to include descriptions of how the 

State would collect the necessary data to 

determine the adjustment, including 

any contracting contingences that may 

be in place with participating standard 

health plan issuers. We would provide 

technical assistance to States as they 

develop their protocols, as requested. To 

implement the population health status 

adjustment, we propose that we will 

approve the State’s protocol by 

December 31, 2022, for the 2023 

program year. Finally, we propose that 

the State be required to complete the 

population health status adjustment at 

the end of the program year based on 

the approved protocol. After the end of 

the program year, and once data is made 

available, we propose to review the 

State’s findings, consistent with the 

approved protocol, and make any 

necessary adjustments to the State’s 

Federal BHP payment amounts. If we 

determine the Federal BHP payments 

were less than they would have been 

using the final adjustment factor, we 

would apply the difference to the State’s 

next quarterly BHP trust fund deposit. If 

we determine that the Federal BHP 

payments were more than they would 

have been using the final reconciled 

factor, we would subtract the difference 

from the next quarterly BHP payment to 

the State. 

III. Revisions to Basic Health Program 

Regulations 

The calculation of BHP payment 

amounts is set forth in § 600.610 and is 

a prospective quarterly calculation of 

rates based on estimated or known 

enrollment data prior to the beginning 

of the quarter for which the rates are 

calculated, adjusted by actual 

enrollment data submitted by States 

after the end of the quarter. Currently, 

§ 600.610(a) commits the Secretary to 

publish an annual proposed payment 

notice in October, and § 600.610(b) 

requires the Secretary to publish an 

annual final payment notice the 

following February, setting forth the 

BHP payment methodology for the 

following year. 

Over the past several years, minimal 

changes to the payment methodology 

have been required, and we no longer 

view an annual publication of a 

payment methodology as necessary. 

Specifically, between 2015 and 2022, 

only two factors (the PAF and the 

MTSF) were added to the payment 

methodology, and one of the factors (the 

MTSF) was subsequently removed. For 

2023, we are proposing to add the 

section 1332 WF. Other than this year’s 

addition of the proposed section 1332 

WF, if finalized, we do not believe that 

additional factors will be added or 

removed on an annual basis as this 

program has now been in operation for 

several years. Therefore, we are 

proposing to revise § 600.610(a)(1) to 

provide for issuance of payment notices 

that may be effective for only one or 

multiple program years, as determined 

by and subject to the discretion of the 

Secretary, beginning with the 2023 BHP 

payment methodology and then going 

forward. We believe this will be 

beneficial to States that operate a BHP, 

as it will provide greater certainty 

regarding the payment methodology for 

a given year. 

In addition, we are proposing at 

§ 600.610(a)(1) and (b)(1) to change the 

schedule of publication dates for the 

proposed and final BHP payment 

notices. Under the current regulation, 

CMS must publish a proposed payment 

notice annually in October and a final 

notice annually in February. As stated 

above, we do not believe that the 

publication of an annual payment notice 

is necessary. In addition, we do not 

believe that this schedule allows for 

adequate time for States and other 

stakeholders to provide comments and 

for CMS to carefully consider comments 

received. Therefore, we propose to 

revise § 600.610(a)(1) and (b)(1) to 

remove the specific months in which 

the proposed and final payment 

methodologies must be published. We 

note that in years in which the Secretary 

determines a new payment methodology 

needs to be proposed and published, if 

finalized, we would publish a proposed 

payment methodology with an 

opportunity for public comment. We 

would also publish a final payment 

methodology in advance of the effective 

date of the payment methodology. If this 

proposal is finalized, the 2023 final BHP 

payment methodology would be in 

effect until we propose and finalize a 

revised payment methodology. We 

would also release subregulatory 

guidance updating the values of factors 

needed to calculate the Federal BHP 

payments in years in which a revised 

payment methodology is not proposed 

and finalized. 

We are proposing these changes under 

the authority in section 

1331(d)(3)(A)(iii) of the ACA, which 

requires that the Chief Actuary of CMS, 

in consultation with OTA, shall certify 

whether the methodology used to make 

payments to the States meets the 

requirements of section 1331(d)(3)(A)(ii) 

of the ACA. 

Under § 600.610(c)(2)(ii), the 

Secretary will recalculate a State’s BHP 

payment amount upon determination 

that a mathematical error occurred 

during the application of the BHP 

funding methodology. Under this 

current regulation, it is not permissible 

to recalculate a State’s BHP payment 

amount upon determining that a 

mathematical error occurred during the 

development of the applicable BHP 

funding methodology. 

Examples of mathematical errors in 

the application and/or development of 

the BHP funding methodology include 

using the incorrect value of a factor 

within the BHP payment methodology 

or using incorrect data to calculate a 

factor within the BHP payment 

methodology. Examples of changes that 

are not mathematical errors under this 

regulation include the addition or 

removal of a factor in the BHP payment 

methodology or a change in the 

approach for calculating a factor. 

As an example of mathematical error 

in the development of the BHP payment 

methodology, we recently became aware 

of an error in calculating the Income 

Reconciliation Factor (IRF) for program 

year 2019, resulting in an underpayment 

of Federal funds to States for their 

BHPs. In reviewing the model used to 

calculate the IRF, CMS and OTA found 

an error in the computation of the IRF. 

Working with OTA, we have developed 

a new value for the IRF for 2019. 

Previously, the IRF for the 2019 BHP 

payment methodology was 98.03 

percent. The corrected value for the IRF 

for program year 2019 was recalculated 

as the median of the impact of income 

reconciliation on PTC for persons with 

incomes between 100 percent and 200 

percent of FPL (102.36 percent) and the 

impact for persons with incomes 

between 133 percent and 200 percent of 

FPL (101.66 percent), which is 102.01 

percent. Using the median of the two 

values is the same approach as we used 

to calculate the original IRF value in 

2019, and the difference between the 

values is attributable to a mathematical 

error made during the development of 

the BHP payment methodology for 

program year 2019. 

Therefore, we are proposing to revise 

§ 600.610(c)(2)(ii) such that a State’s 

payment amount may be retroactively 

revised due to a mathematical error in 

the development or application of the 

BHP funding methodology. If finalized, 

we would then be able to recalculate 

Federal payments to States for 2019 

using the updated value of the IRF. We 

propose this change under the authority 

in section 1331(d)(3)(B) of the ACA, 

which requires the Secretary to adjust 

payments for any fiscal year to reflect 

any error in the payment amounts under 

section 1331(d)(3)(A) of the ACA. 


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We seek public comment on these 

proposals. 

IV. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501 et seq.), 

we are required to provide 60-day notice 

in the Federal Register and solicit 

public comment before a ‘‘collection of 

information’’ requirement is submitted 

to the Office of Management and Budget 

(OMB) for review and approval. For the 

purposes of the PRA and this section of 

the preamble, collection of information 

is defined under 5 CFR 1320.3(c) of 

OMB’s implementing regulations. 

To fairly evaluate whether an 

information collection should be 

approved by OMB, section 3506(c)(2)(A) 

of the PRA requires that we solicit 

comment on the following issues: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

We are soliciting public comment on 

each of these issues for the following 

sections of this document that contain 

proposed collection of information 

requirements. 

A. Wage Estimates 

To derive average costs for 

individuals, we used data from the U.S. 

Bureau of Labor Statistics’ (BLS) May 

2021 National Occupational 

Employment and Wage Estimates for 

our salary estimates (https://

www.bls.gov/oes/current/oes_nat.htm). 

In this regard, Table 1 presents BLS’ 

mean hourly wage, our estimated cost of 

fringe benefits and overhead, and our 

adjusted hourly wage. 

TABLE 1—NATIONAL OCCUPATIONAL EMPLOYMENT AND WAGE ESTIMATES

Occupation title Occupation 

code 

Mean hourly 

wage 

($/hr) 

Fringe benefits 

and overhead 

($/hr) 

Adjusted 

hourly wage 

($/hr) 

Business Operations Specialists ..................................................................... 13–1000 38.64 38.64 77.25 

General and Operations Managers ................................................................. 11–1021 55.41 55.41 110.82 

To derive our proposed cost 

estimates, we adjusted BLS’ mean 

hourly wage by a factor of 100 percent. 

This is necessarily a rough adjustment, 

both because fringe benefits and 

overhead costs vary significantly from 

employer to employer, and because 

methods of estimating these costs vary 

widely from study to study. Therefore, 

we believe that doubling the hourly 

wage to estimate total cost is a 

reasonably accurate and conservative 

estimation method. 

B. Proposed Information Collection 

Requirements (ICRs) 

The following proposed changes will 

be submitted to OMB for review under 

control number 0938–1218 (CMS– 

10510). We also propose to reinstate that 

control number as our previous 

approval was discontinued on August 

31, 2017, based on our estimated 

number of respondents. We are 

proposing to reinstate the control 

number based on 5 CFR 1320.3(c)(4)(i) 

using the standard non-rule PRA 

process which includes the publication 

of 60- and 30-day Federal Register 

notices. We anticipate that the initial 

60-day notice will publish within 10 

business days from the date of 

publication of this proposed rule. 

1. ICRs Regarding the Submission of 

Estimated and Actual Quarterly 

Enrollment Data 

In sections I.A. and II.B. of this 

proposed rule, we propose that a State 

that is approved to implement a BHP 

must provide CMS with an estimate of 

the number of BHP enrollees it projects 

will enroll in the upcoming BHP 

program quarter, by applicable rate cell, 

prior to the first quarter and each 

subsequent quarter of program 

operations until after actual enrollment 

data is available. Enrollment data must 

be submitted by age range (if 

applicable), geographic area, coverage 

status, household size, and income 

range. 

We estimate that it would take a 

business operations specialist 10 hours 

at $77.25/hr and a general manager 2 

hours at $110.82/hr to compile and 

submit the quarterly estimated 

enrollment data to CMS. For 2023, we 

estimate that two States will operate a 

BHP and will submit the required 

estimated enrollment data to CMS. In 

aggregate, we estimate an annual burden 

of 96 hours (2 States × 12 hr/response 

× 44 U.S.C. 35014 responses/yr) at a cost 

of $7,953 [2 States × 4 responses/yr ((10 

hr × $77.25/hr) + (2 hr × $110.82/hr)). 

In sections I.A. and II.B. of this 

proposed rule, we also propose that 

following each BHP program quarter, a 

State operating a BHP must submit 

actual enrollment data to CMS. Actual 

enrollment data must be based on 

individuals enrolled for the quarter who 

the State found eligible and whose 

eligibility was verified using eligibility 

and verification requirements as agreed 

to by the State in its applicable BHP 

Blueprint for the quarter that enrollment 

data is submitted. Actual enrollment 

data must include a personal identifier, 

date of birth, county of residence, 

Indian status, family size, household 

income, number of persons in the 

household enrolled in BHP, family 

identifier, months of coverage, plan 

information, and any other data 

required by CMS to properly calculate 

the payment. This may include the 

collection of data related to eligibility 

for other coverage, marital status (for 

calculating household composition), or 

more precise residence location. 

We estimate that it would take a 

business operations specialist 100 hours 

at $77.25/hr and a general manager 10 

hours at $110.82/hr to compile and 

submit the quarterly actual enrollment 

data to CMS. For 2023, we estimate that 

two States will operate a BHP and will 

submit the required actual enrollment 

data to CMS. In aggregate, we estimate 

an annual burden of 880 hours (2 States 

× 110 hr/response × 4 responses/yr) at 

a cost of $70,666 [2 States × 4 responses/ 

yr ((100 hr × $77.25/hr) + (10 hr × 

$110.82/hr)). 

2. ICRs Regarding Submission of 

Qualified Health Plan Data 

In section II.C. of this proposed rule, 

we specify that States operating an SBE 

in the individual market must provide 

certain data, including premiums for 

SLCSPs, by geographic area, for CMS to 

calculate the Federal BHP payment rates 

in those States. States operating BHPs 

interested in obtaining the applicable 

2023 program year Federal BHP 

payment rates for its State must submit 

the data to CMS by October 15, 2022. 

We estimate that it would take a 

business operations specialist 20 hours 

at $77.25/hr and a general manager 2 


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31830 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 

hours at $110.82/hr to compile and 

submit the required data to CMS. In 

aggregate, we estimate an annual burden 

of 44 hours (2 States × 22 hr/response) 

at a cost of $3,533 [2 States × ((20 hr × 

$77.25/hr) + (2 hr × $110.82/hr))]. 

C. Summary of Proposed Requirements 

and Annual Burden Estimates 

Section under Title 

42 of the CFR 

OMB control No. 

(CMS ID No.) 

Number of 

respondents 

Total 

responses 

Time per response 

(hr) 

Total time 

(hr) 

Labor cost 

($/hr) 

Total cost 

($) 

600.610 ................. 0938–1218 

(CMS–10510) 

2 8 Varies ................... 96 Varies ................... 7,953 

600.610 ................. 0938–1218 

(CMS–10510) 

2 8 Varies ................... 880 Varies ................... 70,666 

600.610 ................. 0938–1218 

(CMS–10510) 

2 2 Varies ................... 44 Varies ................... 3,533 

Total .............. 2 18 Varies ................... 1,020 Varies ................... 82,152 

D. Submission of PRA-Related 

Comments 

We have submitted a copy of this 

proposed rule to OMB for its review of 

the rule’s information collection 

requirements and burden. The 

requirements are not effective until they 

have been approved by OMB. 

To obtain copies of the supporting 

statement and any related forms for the 

proposed collections discussed above, 

please visit the CMS website at https:// 

www.cms.gov/Regulations-andGuidance/Legislation/Paperwork

ReductionActof1995/PRAListing, or call 

the Reports Clearance Office at 410– 

786–1326. 

We invite public comments on these 

potential information collection 

requirements. If you comment, please 

submit your comments electronically as 

specified in the DATES and ADDRESSES

sections of this proposed rule. 

V. Response to Comments 

Because of the large number of public 

comments, we normally receive on 

Federal Register documents, we are not 

able to acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble, and, when we proceed 

with a subsequent document, we will 

respond to the comments in the 

preamble to that document. 

VI. Regulatory Impact Analysis 

A. Statement of Need 

Section 1331 of the ACA (42 U.S.C. 

18051) requires the Secretary to 

establish a BHP, and section 1331(d)(1) 

specifically provides that if the 

Secretary finds that a State meets the 

requirements of the program established 

under section 1331(a) of the ACA, the 

Secretary shall transfer to the State 

Federal BHP payments described in 

section 1331(d)(3) of the ACA. This 

proposed methodology provides for the 

funding methodology to determine the 

Federal BHP payment amounts required 

to implement these provisions for 

program year 2023. 

B. Overall Impact 

We have examined the impacts of this 

rule as required by E.O. 12866 on 

Regulatory Planning and Review 

(September 30, 1993), E.O. 13563 on 

Improving Regulation and Regulatory 

Review (January 18, 2011), the 

Regulatory Flexibility Act (RFA) 

(September 19, 1980, Pub. L. 96354), 

section 1102(b) of the Act, section 202 

of the Unfunded Mandates Reform Act 

of 1995 (March 22, 1995; Pub. L. 104– 

4), E.O. 13132 on Federalism (August 4, 

1999), and the Congressional Review 

Act (5 U.S.C. 804(2)). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Section 3(f) of Executive Order 

12866 defines a ‘‘significant regulatory 

action’’ as an action that is likely to 

result in a rule: (1) Having an annual 

effect on the economy of $100 million 

or more in any 1 year, or adversely and 

materially affecting a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating a serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

A regulatory impact analysis (RIA) 

must be prepared for major rules with 

significant regulatory action(s) or with 

economically significant effects ($100 

million or more in any 1 year). Based on 

our estimates, OMB’s Office of 

Information and Regulatory Affairs has 

determined this rulemaking is 

‘‘economically significant’’ as measured 

by the $100 million threshold. 

Accordingly, we have prepared a 

Regulatory Impact Analysis that to the 

best of our ability presents the costs and 

benefits of the rulemaking. 

C. Detailed Economic Analysis 

The aggregate economic impact of this 

proposed payment methodology is 

estimated to be $357 million in transfers 

for calendar years (CY) 2022 and 2023 

(measured in real 2022 dollars), which 

would be an increase in Federal 

payments to the State BHPs. For the 

purposes of this analysis, we have 

assumed that two States would 

implement BHPs in 2023. This 

assumption is based on the fact that two 

States have established a BHP to date, 

and we do not have any indication that 

additional States may implement a BHP 

in CY 2023. Of these two States, only 

one (Minnesota) currently has an 

approved section 1332 waiver. 

Projected BHP enrollment and 

expenditures under the previous 

payment methodology were calculated 

using the most recent 2022 QHP 

premiums and State estimates for BHP 

enrollment. We projected enrollment for 

2023 using the projected increase in the 

number of adults in the U.S. from 2022 

to 2023 (0.4 percent), and we projected 

premiums using the NHE projection of 

premiums for private health insurance 

(4.6 percent). Prior to any changes made 

in the 2023 BHP payment methodology, 

Federal BHP expenditures are projected 

to be $8,340 million in 2023, which are 

described in detail below. This 

projection serves as our baseline 

scenario when estimating the net impact 

of the 2023 proposed methodology on 

Federal BHP expenditures. 

The incorporation of the WF is the 

most significant change in this proposed 


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29https://www.cms.gov/CCIIO/Programs-andInitiatives/State-Innovation-Waivers/Downloads/ 

1332-State-Specific-Premium-Data-Feb-2021.xlsx. 

methodology from the final 2022 

payment methodology. To calculate the 

impact of adding the WF to the 

methodology, we took the following 

steps. First, we calculated the estimated 

value of the WF using the most recently 

available section 1332 waiver premium 

data for 2021.29 In Minnesota, the 

average percentage difference between 

the ‘‘with waiver’’ SLCSP premiums and 

the ‘‘without waiver’’ SLCSP premiums 

for 2021 is 27.3 percent (calculated as 

the average of the ‘‘without waiver’’ 

SLCSP premium divided by the ‘‘with 

waiver’’ SLCSP premium, averaged 

across all rating areas). We then 

increased the RPs in the model for 

Minnesota by 27.3 percent, which 

represents the impact of the WF. The 

resulting Federal BHP payments were 

28.2 percent higher incorporating this 

adjustment. The projected BHP 

expenditures after these changes are 

$8,154 million, which is the sum of the 

prior estimate ($8,021 million) and the 

impacts of the changes to the 

methodology ($133 million). For 

Minnesota, estimated payments would 

increase from $470 million to $603 

million in 2023. 

TABLE 2—ESTIMATED FEDERAL IMPACTS FOR THE BASIC HEALTH PROGRAM 2023 PAYMENT METHODOLOGY TO ADD WAIVER FACTOR

[Millions of 2022 dollars] 

Projected Federal BHP Payments 

under 2022 Final Methodology ..... $8,021 

Projected Federal BHP Payment 

under 2023 Proposed Methodology .............................................. 8,154 

Federal costs .................................... 133 

Totals may not add due to rounding. 

The provisions of this proposed 

methodology are designed to determine 

the amount of funds that will be 

transferred to States offering coverage 

through a BHP rather than to 

individuals eligible for Federal financial 

assistance for coverage purchased on the 

Exchange. We are uncertain what the 

total Federal BHP payment amounts to 

States will be as these amounts will vary 

from State to State due to the Statespecific factors and conditions. In this 

case, the exact value of the WF and the 

effects of the section 1332 waiver in 

2023 are currently unknown. The value 

of the WF could be higher or lower than 

estimated here as a result. In addition, 

projected BHP expenditures and 

enrollment may also differ from our 

current estimates, which may also lead 

to costs being higher or lower than 

estimated here. 

In addition, the proposed 

methodology would allow for a 

retrospective correction to the BHP 

payment methodology for errors that 

occurred during the development or 

application of the BHP funding 

methodology. For 2019, we propose to 

correct the value of the IRF from 98.03 

percent to 102.01 percent. Actual 

Federal BHP expenditures in 2019 were 

$5,591 million, including payment 

reconciliations that have occurred as of 

March 2022. Calculating the payments 

with the corrected IRF value increases 

the payments by about $224 million. 

The actual amount may differ as we 

continue to reconcile 2019 payments 

based on actual enrollment. 

TABLE 3—ESTIMATED FEDERAL IMPACTS FOR THE BASIC HEALTH PROGRAM 2023 PAYMENT METHODOLOGY TO APPLY RETROSPECTIVE

CORRECTIONS

[Millions of 2022 dollars] 

Actual Federal BHP Payment (2019) $5,591 

Projected Federal BHP Payment 

with Correction (2019) .................. 5,815 

Federal costs .................................... 224 

Totals may not add due to rounding. 

The total estimated impact of this 

proposed methodology is $357 million 

($133 million for the addition of the 

section 1332 waiver factor, and $224 

million for the correction to the income 

reconciliation factor for 2019). 

D. Alternative Approaches 

We considered several alternatives in 

developing the BHP payment 

methodology for 2023, and we discuss 

some of these alternatives below. 

We considered alternatives as to how 

to calculate the PAF in the final 

methodology for 2023. The value for the 

PAF is 1.188, which is the same as was 

used for 2018, 2019, 2020, 2021, and 

2022. We believe it would be difficult to 

obtain the updated information from 

QHP issuers comparable to what was 

used to develop the 2018 factor, because 

QHP issuers may not distinctly consider 

the impact of the discontinuance of CSR 

payments on the QHP premiums any 

longer. We do not have reason to believe 

that the value of the PAF would change 

significantly between program years 

2018 and 2023. We are continuing to 

consider whether or not there are other 

methodologies or data sources we may 

be able to use to calculate the PAF. 

We also considered whether to 

continue to provide States the option to 

develop a protocol for a retrospective 

adjustment to the PHF as we did in 

previous payment methodologies. We 

believe that continuing to provide this 

option is appropriate and likely to 

improve the accuracy of the final 

payments. 

We also considered whether to 

require the use of the program year 

premiums to develop the Federal BHP 

payment rates, rather than allow the 

choice between the program year 

premiums and the prior year premiums 

trended forward. We believe that the 

payment rates can still be developed 

accurately using either the prior year 

QHP premiums or the current program 

year premiums and that it is appropriate 

to continue to provide the States these 

options. 

We also considered whether or not to 

include a factor to address the impacts 

of State Innovation Waivers. In previous 

methodologies, we have not addressed 

the potential impacts of State 

Innovation Waivers on BHP payments. 

We believe it is appropriate to include 

such a factor for this payment 

methodology. We also considered other 

approaches to calculating the factor, 

including whether or not to use each 

State’s experience separately or to look 

at the impacts across all States. We 

believe it is more accurate to use each 

State’s experience separately, as 

applicable. 

Many of the factors in the final 

methodology are specified in statute; 

therefore, for these factors we are 

limited in the alternative approaches we 

could consider. We do have some 

choices in selecting the data sources 

used to determine the factors included 

in the methodology. We will continue to 

use national rather than State-specific 

data, with the exception of Statespecific RPs and enrollment data. This 

is due to the lack of currently available 

State-specific data needed to develop 

the majority of the factors included in 

the methodology. We believe the 

national data will produce sufficiently 

accurate determinations of payment 

rates. In addition, we believe that this 

approach will be less burdensome on 

States. In many cases, using Statespecific data would necessitate 

additional requirements on the States to 

collect, validate, and report data to 

CMS. By using national data, we are 

able to collect data from other sources 

and limit the burden placed on the 

States. For RPs and enrollment data, we 


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31832 Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 

will use State-specific data rather than 

national data, as we believe Statespecific data will produce more accurate determinations than national averages. 

E. Accounting Statement and Table 

TABLE 4—ACCOUNTING STATEMENT: FEDERAL TRANSFERS TO STATES

[$ millions] 

Category Primary 

estimate Low estimate High estimate 

Units 

Year dollars Discount rate Period 

covered 

Annualized Monetized Transfers from 

Federal Government to States ............. $180 $163 $197 2022 7% 2022–2023 

179 162 196 2022 3% 2022–2023 

As required by OMB Circular A–4 

(available at https://

www.whitehouse.gov/wp-content/ 

uploads/legacy_drupal_files/omb/ 

circulars/A4/a-4.pdf), we have prepared 

an accounting statement in Table 4 

showing the classification of the transfer 

payments from the Federal government 

to States associated with the provisions 

of this proposed rule. Table 4 provides 

our best estimates of the transfer 

payments outlined in the section C. 

Detailed Economic Analysis above. 

These estimates assume that costs in 

2022 could be 5 percent above and 

below the primary estimate ($224 

million in 2022 dollars) and that costs 

in 2023 could be 18 percent above and 

below the primary estimate ($133 

million in 2022 dollars, which reflects 

a waiver factor that could be 5 

percentage points higher or lower than 

assumed in the analysis). 

F. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) (RFA) requires 

agencies to analyze options for 

regulatory relief of small entities, if a 

rule has a significant impact on a 

substantial number of small entities. For 

purposes of the RFA, we estimate that 

no small entities will be impacted as 

that term is used in the RFA (include 

small businesses, nonprofit 

organizations, and small governmental 

jurisdictions). The great majority of 

hospitals and most other health care 

providers and suppliers are small 

entities, either by being nonprofit 

organizations or by meeting the SBA 

definition of a small business (having 

revenues of less than $8.0 million to 

$41.5 million). Individuals and States 

are not included in the definition of a 

small entity. As its measure of 

significant economic impact on a 

substantial number of small entities, 

HHS uses a change in revenue of more 

than 3 to 5 percent. We do not believe 

that this threshold will be reached by 

the requirements in this proposed rule. 

Because this methodology is focused 

solely on Federal BHP payment rates to 

States, it does not contain provisions 

that would have a direct impact on 

hospitals, physicians, and other health 

care providers that are designated as 

small entities under the RFA. 

Accordingly, we have determined that 

the methodology, like the previous 

methodology and the final rule that 

established the BHP program, will not 

have a significant economic impact on 

a substantial number of small entities. 

Therefore, the Secretary has determined 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Section 1102(b) of the Act requires us 

to prepare a regulatory impact analysis 

if a methodology may have a significant 

economic impact on the operations of a 

substantial number of small rural 

hospitals. For purposes of section 

1102(b) of the Act, we define a small 

rural hospital as a hospital that is 

located outside of a metropolitan 

statistical area and has fewer than 100 

beds. For the preceding reasons, we 

have determined that the methodology 

will not have a significant impact on a 

substantial number of small rural 

hospitals. Therefore, the Secretary has 

determined that this rule will not have 

a significant impact on the operations of 

a substantial number of small rural 

hospitals. 

G. Unfunded Mandates Reform Act 

(UMRA) 

Section 202 of the Unfunded 

Mandates Reform Act (UMRA) of 2005 

(Pub. L. 104–4) requires that agencies 

assess anticipated costs and benefits 

before issuing any rule whose mandates 

require spending in any 1 year of $100 

million in 1995 dollars, updated 

annually for inflation, by State, local, or 

tribal governments, in the aggregate, or 

by the private sector. In 2022, that 

threshold is approximately $165 

million. States have the option, but are 

not required, to establish a BHP. 

Further, the methodology would 

establish Federal payment rates without 

requiring States to provide the Secretary 

with any data not already required by 

other provisions of the ACA or its 

implementing regulations. Thus, neither 

the current nor the proposed payment 

methodologies mandate expenditures by 

State governments, local governments, 

or tribal governments. 

H. Federalism 

E.O. 13132 establishes certain 

requirements that an agency must meet 

when it issues a final rule that imposes 

substantial direct effects on States, 

preempts State law, or otherwise has 

Federalism implications. The BHP is 

entirely optional for States, and if 

implemented in a State, provides access 

to a pool of funding that would not 

otherwise be available to the State. 

Accordingly, the requirements of E.O. 

13132 do not apply to this proposed 

rule. 

I. Conclusion 

We believe that this proposed BHP 

payment methodology is effectively the 

same methodology as finalized for 2022, 

with the exception of the addition of the 

WF. In addition, we propose to update 

the regulation to clarify that errors in 

the application and the development of 

the methodology may be corrected 

retroactively. BHP payment rates may 

change as the values of the factors 

change, most notably the QHP 

premiums for 2022 or 2023. We do not 

anticipate this proposed methodology to 

have any significant effect on BHP 

enrollment in 2023. 

In accordance with the provisions of 

E.O. 12866, this regulation was 

reviewed by the Office of Management 

and Budget. 

Chiquita Brooks-LaSure, 

Administrator of the Centers for 

Medicare & Medicaid Services, 

approved this document on May 13, 

2022. 

List of Subjects in 42 CFR Part 600 

Administrative practice and 

procedure, Health care, health 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 101 / Wednesday, May 25, 2022 / Proposed Rules 31833 

insurance, Intergovernmental relations, 

Penalties, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services proposes to amend 

42 CFR part 600 as set forth below: 

PART 600—ADMINISTRATION, 

ELIGIBILITY, ESSENTIAL HEALTH 

BENEFITS, PERFORMANCE 

STANDARDS, SERVICE DELIVERY 

REQUIREMENTS, PREMIUM AND 

COST SHARING, ALLOTMENTS, AND 

RECONCILIATION 

■ 1. The authority citation for part 600 

continues to read as follows: 

Authority: Section 1331 of the Patient 

Protection and Affordable Care Act of 2010 

(Pub. L. 111–148, 124 Stat. 119), as amended 

by the Health Care and Education 

Reconciliation Act of 2010 (Pub. L. 111–152, 

124 Stat 1029). 

■ 2. Amend § 600.610— 

■ a. By revising paragraphs (a)(1) and 

(b)(1); and 

■ b. In paragraph (c)(2)(ii), by removing 

the phrase ‘‘during the application of 

the BHP funding methodology’’ and 

adding in its place the phrase ‘‘during 

the application or development of the 

BHP funding methodology’’. 

The revisions read as follows: 

§ 600.610 Secretarial determination of BHP 

payment amount. 

(a) * * * 

(1) Beginning in FY 2015, the 

Secretary will determine and publish in 

a Federal Register document the BHP 

payment methodology for the next 

calendar year, or for multiple calendar 

years beginning in calendar year 2022, 

as determined by the Secretary. 

Beginning in calendar year 2023, in 

years in which the Secretary does not 

publish a new BHP methodology, the 

Secretary will update the values of 

factors needed to calculate the Federal 

BHP payments via subregulatory 

guidance, as appropriate. Beginning in 

calendar year 2023, in years that the 

Secretary publishes a revised payment 

methodology, the Secretary will publish 

a proposed BHP payment methodology 

upon receiving certification from the 

Chief Actuary of CMS. 

* * * * * 

(b) * * * 

(1) Beginning in calendar year 2023, 

in years that the Secretary publishes a 

revised payment methodology, the 

Secretary will determine and publish 

the final BHP payment methodology 

and BHP payment amounts in a Federal 

Register document. 

* * * * * 

Dated: May 18, 2022. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2022–11047 Filed 5–23–22; 11:15 am] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 19–195, DA 22–543; FR ID 

88208] 

Broadband Data Task Force, Wireless 

Telecommunications Bureau, Wireline 

Competition Bureau, and Office of 

Economics and Analytics Seek 

Comment on Competitive Carriers 

Association Petition for Declaratory 

Ruling or Limited Waiver Regarding 

the Requirement for a Certified 

Professional Engineer To Certify 

Broadband Data Collection Maps 

AGENCY: Federal Communications 

Commission. 

ACTION: Petition for Declaratory Ruling 

and Limited Waiver; request for 

comments. 

SUMMARY: In this document, the 

Broadband Data Task Force (BDTF), 

Wireless Telecommunications Bureau 

(WTB), the Wireline Competition 

Bureau (WCB), and the Office of 

Economics and Analytics (OEA) seek 

comment on a Petition for Declaratory 

Ruling or Limited Waiver filed by the 

Competitive Carriers Association (CCA) 

requesting that the Commission issue a 

declaratory ruling to clarify that 

Broadband Data Collection (BDC) filings 

may be certified by a qualified 

professional engineer or an otherwisequalified engineer that is not a licensed 

professional engineer accredited by a 

state licensure board. 

DATES: Comments are due on or before 

June 8, 2022. Reply Comments are due 

on or before June 15, 2022. 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 19–195, by 

any of the following methods: 

• Electronic Filers: Comments may be 

filed electronically using the internet by 

accessing the ECFS: https:// 

www.fcc.gov/ecfs. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. 

• Filings can be sent by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9050 

Junction Drive, Annapolis Junction, MD 

20701. U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 45 L Street NE, 

Washington, DC 20554. 

• Effective March 19, 2020, and until 

further notice, the Commission no 

longer accepts any hand or messenger 

delivered filings. This is a temporary 

measure taken to help protect the health 

and safety of individuals, and to 

mitigate the transmission of COVID–19. 

People with Disabilities. To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an email to fcc504@fcc.gov or call 

the Consumer & Government Affairs 

Bureau at 202–418–0530 (voice, 202– 

418–0432 (tty). 

FOR FURTHER INFORMATION CONTACT: Will 

Holloway, William.Holloway@fcc.gov, 

Wireless Telecommunications Bureau, 

or Kirk Burgee, Kirk.Burgee@fcc.gov, 

Wireline Competition Bureau. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Public 

Notice in WC Docket No 19–195, DA 

22–543, released on May 17, 2022. The 

full text of this document is available for 

public inspection and can be 

downloaded at https://www.fcc.gov/ 

document/bdtf-wtb-wcb-and-oea-seekcomment-petition-filed-cca or by using 

the Commission’s ECFS web page at 

www.fcc.gov/ecfs. 

Ex Parte Rules 

This proceeding shall be treated as a 

‘‘permit-but-disclose’’ proceeding in 

accordance with the Commission’s ex 

parte rules. Persons making ex parte 

presentations must file a copy of any 

written presentation or a memorandum 

summarizing any oral presentation 

within two business days after the 

presentation (unless a different deadline 

applicable to the Sunshine period 

applies). Persons making oral ex parte 

presentations are reminded that 

memoranda summarizing the 

presentation must: (1) List all persons 

attending or otherwise participating in 

the meeting at which the ex parte 

presentation was made; and (2) 

summarize all data presented and 

arguments made during the 

presentation. If the presentation 

consisted in whole or in part of the 

presentation of data or arguments 

already reflected in the presenter’s 

written comments, memoranda, or other 

filings in the proceeding, the presenter 

may provide citations to such data or 

arguments in his or her prior comments, 


lotter on DSK11XQN23PROD with PROPOSALS1