A Good Plan Come Together Reauthorization of the IHCIA: Expanding Authority, Parity, & Opportunity Myra M. Munson, J.D., M.S.W. NIHOE ● National Tribal Health Reform Training April 18, 2012 Washington, DC Juneau, AK Anchorage, AK Albuquerque, NM San Diego, CA Sonosky, Chambers, Sachse, Miller & Munson, LLP

HISTORY OF IHCIA ENACTED September 30, 1976 As Pub. L Amended by: Pub. L (12/17/80) Pub. L (10/31/88) Pub. L (11/18/88) Pub. L (11/23/88) Pub. L (11/28/90) Pub. L (10/29/92) Pub. L (10/19/96) Pub. L (10/21/98) Pub. L (11/10/98) Pub. L (11/1/2000) AND April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 2 Sonosky, Chambers, Sachse, Miller & Munson, LLP

The Affordable Care Act The reauthorization and amendment of the IHCIA is found in Section of Pub. L , the Patient Protection and Affordable Care Act, signed by the President March 23, 2010, which enacted by reference S. 1790, as reported out of the Senate Committee on Indian Affairs in December 2009, with four amendments. April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 3 Sonosky, Chambers, Sachse, Miller & Munson, LLP

REAUTHORIZATION PROCESS 1999 National Steering Committee Formed Principles adopted by Tribal Leaders Expand authority Increase resources and revenue Streamline and modernize Treat the whole person throughout all stages of life Review, review, review 11 Years of Congressional Advocacy Compromise and Hold the Line Do what you can when you can – Any bill moving... MMA, CHIP, ARRA, ACA April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 4 Sonosky, Chambers, Sachse, Miller & Munson, LLP

What Resulted from 11 Years of Advocacy? Acknowledgement of Federal Responsibility – findings & policy Authority – expanded objectives; new programs Parity – eg. exemptions from fees & licensing; access to Federal Employee Benefit Insurance; peer review Opportunity – recovery from Federal health programs and other third party payers; purchasing insurance for beneficiaries; services to non-beneficiaries; sharing arrangement with other providers April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 5 Sonosky, Chambers, Sachse, Miller & Munson, LLP

MMA – Brought Us *Medicare Like Rates -- Sec. 506 (42 USC 1395cc(a)(1)(U)); 42 CFR Part 136. A Medicare enrolled hospital may not receive more than a Medicare Like Rate for services provided to an American Indian or Alaska Native (AI/AN) for any medical care purchased under the contract health services (CHS) program or UIO purchase for urban Indian. IHCIA Sec. 4(5) defines CHS to include referrals without commitment to pay. Authority to Bill Medicare Part B – Sec. 630 (42 USC 1395qq(e)(1)(A). 5 year authority. *Medicare Part D Drug Benefit – Special Protection for AI/ANs *Applies to Urban Indian Organizations (UIO), also April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 6 Sonosky, Chambers, Sachse, Miller & Munson, LLP

CHIPRA *Outreach & Enrollment Grant Set Aside – Sec. 201 (42 USC 1397mm(b)(2)) 10% set aside plus access to generally available funds for outreach and enrollment of children “who are Indians” (as defined in IHCIA Sec. 4) *Increased State Outreach & Enrollment – Sec. 202 (42 USC 1320b-9). Citizenship Documentation – Sec. 211(b)(1) (42 USC 1396b(x)(3)(B)) Medicaid must accept a document issued by a federally recognized Tribe evidencing membership or enrollment April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 7 Sonosky, Chambers, Sachse, Miller & Munson, LLP

CHIPRA Childhood Obesity Demonstration Project – Sec. 401(e) Tribes (as defined in IHCIA Sec. 4) are eligible School-based Health Centers – Sec. 505(a) (42 USC 1397jj(9)) Definitions include schools of Indian tribe or tribal organization and sponsoring facility includes programs administered by IHS, BIA, or a tribe or tribal organization April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 8 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ARRA Sec *No Medicaid Premiums or Cost Sharing – 42 USC 1396o(j). AI/ANs referred by CHS to any provider is not responsible for any cost sharing. The provider payment may not be reduced by the amount of the cost sharing. Property Exemptions for Medicaid – 42 USC 1396a(ff) Estate Protection – 42 USC 1396p(b)(3) April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 9 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ARRA Sec *Medicaid Managed Care – 42 USC 1396u-2. Must pay Indian health care providers (i.e. I/T/U) for services provided to AI/AN (including Indian FQHCs) *Consultation – Requires State Medicaid programs to consult with IHS, Tribes and Tribal Organizations, and UIOs *TTAG – Formalized in statute the CMS Tribal Technical Advisory Group Added IHS and NCUIH April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 10 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ACA + *Payer of Last Resort – Sec. 2901(b). Health Programs operated by I/T/U are the payers of last resort for services provided to AI/ANs for services provided through such programs “notwithstanding any Federal, State, or local law to the contrary.” Part B Billing Authority – Sec Extended permanently April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 11 Sonosky, Chambers, Sachse, Miller & Munson, LLP

More from the ACA Indian Specific Protections in Health Reform Special Enrollment – Sec. 1311(c)(6)(d). Exchange plans must provide Indians with special monthly enrollment periods Tax Penalty Exemption – ACA Sec. 1411(b)(5)(A) (42 USC 18081) and ACA Sec. 1501(e)(3) (26 USC 5000A(e)(3)). Indians exempt from tax penalty for failure to maintain minimum essential coverage *(?) Gross Income Exclusion – ACA Sec. 9021; IRC Sec. 139D. For tax pur for tax purposes does not include the value of health care services or insurance purchased by poses the value of health services or insurance provided or purchased by a Tribe or Tribal Organization (“or through a third-party program funded by the IHS”) is excluded from gross income not include the value of health care services or insurance purchased by April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 12 Sonosky, Chambers, Sachse, Miller & Munson, LLP

More Indian Specific Provision in ACA Expand Previous Protections Cost Sharing Protections under Exchange Plans – Sec. 1402(d) and 2901(a) Indians under 300% of poverty, enrolled in any Exchange plan, are exempt from cost sharing No cost sharing for services provided by I/T/U and no deduction in payments to I/T/U Qualified Health Plan paid the cost sharing by HHS April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 13 Sonosky, Chambers, Sachse, Miller & Munson, LLP

But, Who Is an Indian under the ACA? “The term “Indian tribe” means any Indian tribe, band, nation, pueblo, or other organized group or community, including any Alaska Native village or group or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status of Indians.” IRC Sec. 45A(c)(6) only IHCIA Sec. 4(14), ISDEAA Sec. 4(d), AND IRC Sec. 45A(c)(6) IHCIA Sec. 4(14) only “Indian” means a person who is a member of an Indian tribe (includes Alaska Natives). See, definitions above, 42 CFR 36 (IHS Eligibility Regulations) and 42 CFR (CMS implementation of ARRA cost sharing protections) April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 14 Sonosky, Chambers, Sachse, Miller & Munson, LLP

How Does CMS Define “Indian”? 42 CFR For purposes of [Medicaid program], Indian means any individual defined at 25 USC 1603(c), 1603(f), or 1679(b), or who has been determined eligible as an Indian, pursuant to Sec This means the individual: (i)Is a member of a Federally-recognized Indian tribe; (ii)Resides in an urban center and meets one or more of the following four criteria: (A) Is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendent, in the first or second degree, of any such member; (B) Is an Eskimo or Aleut or other Alaska Native; (C) Is considered by the Secretary of the Interior to be an Indian for any purpose; or (D) Is considered to be an Indian under regulations promulgated by the Secretary; (iii) Is considered by the Secretary of the Interior to be an Indian for any purpose; or (iv) Is considered by the Secretary of Health and Human Services to be an Indian for purposes of eligibility for Indian health care services, including as a California Indian, Eskimo, Aleut, or other Alaska Native. April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 15 Sonosky, Chambers, Sachse, Miller & Munson, LLP

But, Best of All, Reauthorization of and Amendments to the Indian Health Care Improvement Act April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 16 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ACKNOWLEDGEMENT Sec. 825 Permanent Reauthorization Sec. 2 Findings – New provision: “(2) A major national goal of the U.S. is to provide the resources, processes, and structure that will enable Indian tribes and tribal members to obtain the quantity of health care services and opportunities that will eradicate the health disparities between Indians and the general public of the U.S.” Sec. 3 Policy – Acknowledgement of “special trust responsibility and legal obligations to Indians.” April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 17 Sonosky, Chambers, Sachse, Miller & Munson, LLP

OBJECTIVES AND PARITY *Sec. 3(2) Objectives – For the first time they are the same as for the rest of the Nation. Healthy People 2010 ( or successor standards). See, Objectives Address: access; adolescent health; arthritis, osteoporosis & chronic back conditions; blood disorders & blood safety; cancer; chronic kidney diseases; diabetes; disability & secondary conditions; early/middle childhood; education & community-based programs; environmental health; family planning; food safety; genomics; global health; health communication and IT; health care associated infections; hearing & other sensory communication disorders; heart disease & stroke; HIV; immunizations & infectious diseases; injury & violence prevention; maternal, infant & child health; medical product safety; mental health; nutrition & weight status; occupational safety & health; older adults; oral health; physical health & fitness; public health infrastructure; quality of life & well-being; respiratory diseases; sexually transmitted diseases; social determinants of health; substance abuse; tobacco; vision April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 18 Sonosky, Chambers, Sachse, Miller & Munson, LLP

Definitions – So We Don’t Get Confused Sec. 4 – (12) Indian health program means (A) any health program administered directly by the Service; (B) any tribal health program; and (C) any Indian tribe or tribal organization to with the Secretary provides funding pursuant to section 23 of the Act of June 25, 1910 (25 USC 47) (commonly known as the ‘Buy Indian Act’). (25) Tribal Health Program means an Indian tribe or tribal organization that operates any health program, service, function, activity, or facility funded, in whole or part, by the Service through, or provided for in, a contract or compact with the Service under the [ISDEAA]. April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 19 Sonosky, Chambers, Sachse, Miller & Munson, LLP

LICENSING AND FEES PARITY Sec. 221 Licensing. Exempts licensed and certified tribal health program employees from licensure in the state where they are practicing so long as they are licensed or certified in some state. *Sec. 408 Non-Discrimination in Qualifications for Reimbursement. Provides for payment of I/T/U programs by any Federal health care program without regard to licensed status so long as meet other generally applicable requirements for participation *Sec. 124 Exemption from certain fees. Employees of tribal and urban health programs are exempt from fees imposed by federal agencies to the same extent that IHS employees and commissioned corps officers are exempt. Eg., DEA registration fees. April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 20 Sonosky, Chambers, Sachse, Miller & Munson, LLP

INSURANCE Authority, Parity, and Opportunity *Sec. 402 Purchasing Health Care Coverage. IHS funds made available to an I/T/U (including ISDEAA funds) may be used to purchase health benefits coverage for beneficiaries May consider need of beneficiaries May cover expenses for a self-insured plan, including administration and insurance to limit financial risks *Sec. 409 Access to Federal Insurance. Allows a tribe or tribal organization carrying out programs under the ISDEAA, or an urban Indian organization with IHS funding, to buy federal health insurance for the employees of the tribe, tribal organization, or urban Indian organization. April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 21 Sonosky, Chambers, Sachse, Miller & Munson, LLP

SERVING NON-BENEFICIARIES Authority and Opportunity Sec. 813 Health Services for Ineligible Persons. Eliminates requirement that Tribal health programs consider whether there are alternative services and expressly extends FTCA coverage Does not allow IHS to serve non-beneficiaries without approval of tribes in the Service Unit April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 22 Sonosky, Chambers, Sachse, Miller & Munson, LLP

Sec. 206 THIRD PARTY RECOVERY Authority and Opportunity *Right to recover reasonable charges (rather than reasonable expenses) or highest amount the payor would pay a non-governmental provider from insurance companies, HMOs, employee benefit plans, and tortfeasors, and any other responsible or liable third party Allows THOs to use the Federal Medical Care Recovery Act Allows self-insured tribes to authorize payment to IHS Allows THO to recover costs and attorney’s fees if prevail Applies to urban Indian organizations Protects existing laws, including medical lien laws April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 23 Sonosky, Chambers, Sachse, Miller & Munson, LLP

*Sec. 401 Reimbursement from Medicare, Medicaid, and CHP Expanded to Children’s Health Insurance Applies to all programs (rather than facilities) 100% pass through to program providing services (up from 80% for IHS directly operated) Expands allowable “use of funds,” including to achieve the objectives under Sec. 3 of the Act No preferential treatment for beneficiary with Medicaid, Medicare or CHIP I/T/U must provide IHS a list of each provider enrollment number (or other identifier) April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 24 Sonosky, Chambers, Sachse, Miller & Munson, LLP

AI/ANs VETERANS Streamlining and Opportunity Sec. 405(a) Authorizes sharing arrangements between IHS, Tribes and Tribal Organizations, and VA and DoD. Sec. 405(c) Requires VA and DoD to reimburse IHS and Tribal health programs for services provided to beneficiaries of VA or DoD Sec. 407 Authorizes collaborations between VA and IHS/Tribal health programs at Indian health program locations April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 25 Sonosky, Chambers, Sachse, Miller & Munson, LLP

OTHER OPPORTUNITIES TO SHARE Sec. 822 Shared Services for Long-Term Care. Expressly authorizes sharing staff and other services between IHS or tribal health program and tribally operated long term care or related facility. Sec. 307 Indian Health Care Delivery Demo. Encourages demonstration projects to test alternative means of delivering health services to AI/ANs through facilities and through alternative and innovative methods like community health centers and cooperative agreements with other community providers for sharing or coordinating use of facilities, funding, and other resources April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 26 Sonosky, Chambers, Sachse, Miller & Munson, LLP

PROGRAM EXPANSION Sec. 205 SUPPORTIVE SERVICES PROGRAM EXPANSION Assisted living service, as defined in 12 USC 1715w(b), except need not be licensed, but must meet applicable standards for licensure Home- and community-based service means 1 or more services specified in 42 USC 1396t(a)(1)-(9) that are or bill be provided in accordance with applicable standards Hospice care all items and services in 42 USC 1395x(dd)(1)(A)- (H) and “such other services the THO determines are necessary and appropriate in furtherance Of that care Long-term care services as defined in section 7702B(c) of the Internal Revenue Code of 1986 April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 27 Sonosky, Chambers, Sachse, Miller & Munson, LLP

Sec. 119 COMMUNITY HEALTH AIDE PROGRAM Expanding Outside Alaska Extends program outside Alaska, except DHATs Provided funding must be found Consider grants for alternative care providers and third-party reimbursement (Medicaid can pay for CHAP services) No limit on services by other dental health aides Allows Tribes to use mid-level dental providers on the same basis as authorized by the State April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 28 Sonosky, Chambers, Sachse, Miller & Munson, LLP

FACILITIES Sec. 301 Health Facilities Requires a Report of Facility Needs within 1 year comprehensive, national, ranked list of all health care facility needs for facilities, including inpatient; outpatient; specialized facilities like long-term care and alcohol & drug treatment; wellness centers, staff quarters, including renovation and expansion needs Requires a Comptroller General Report regarding Methodology for Facility Priorities Authorizes Innovative Approaches April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 29 Sonosky, Chambers, Sachse, Miller & Munson, LLP

AND, MORE ABOUT FACILITIES Sec. 307 Indian Health Care Delivery Demo. Adds convenient care service Sec. 309 Tribal Management of Federally Owned Quarters. Authorized tribal health programs to set their own rates. Sec. 311 Other Funding. Allows other agencies to transfer funds to IHS for health and sanitation facility construction and operation. Sec. 312 Modular Component Facilities Demo Sec. 313 Mobile Health Stations Demo April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 30 Sonosky, Chambers, Sachse, Miller & Munson, LLP

OTHER PROGRAM EXPANSION Sec. 212 Mammography & Other Cancer Screening - includes other cancers. Sec. 218 Infectious Diseases - expanded beyond tuberculosis Sec. 704 Comprehensive Behavioral Health Authority Sec. 712 Fetal Alcohol Spectrum Disorders Programs Sec. 713 Child Sexual Abuse Prevention and Treatment Programs Sec. 714 Domestic and Sexual Violence Prevention and Treatment April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 31 Sonosky, Chambers, Sachse, Miller & Munson, LLP

OTHER PROVISIONS *Sec. 805 Medical Quality Assurance Records & Qualified Immunity. Provides authority for peer review to occur without compromising confidentiality of medical records and the review process Sec. 831 Traditional Health Care Practices. Expressly authorizes the Secretary to promote traditional health care practices, but limits liability of United States for provision of such services April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 32 Sonosky, Chambers, Sachse, Miller & Munson, LLP

AUTHORITY AND PROTECTION Sec. 828 Tribal Health Program Option for Cost Sharing. Acknowledges authority of tribal health programs to charge Indians for services, but retains the limit on being required to do so. Continues the prohibition on IHS charging AI/ANs for services or requiring any Tribal health pro to charge. Sec. 206(f) IHS Recovery from Tribal Self-Insurance Prohibition continues unless the Tribe expressly authorizes it for periods that cannot exceed one year April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 33 Sonosky, Chambers, Sachse, Miller & Munson, LLP

UIO Provisions of Note Sec. 512 Treatment of Certain Demo Projects. Tulsa Clinic and Oklahoma City Clinic demonstration projects shall – (1)Be permanent programs within the Service’s direct care program; (2)Continue to be treated as Service units and operating units in the allocation of resources and coordination of care: and (3)Continue to meet the requirements and definitions of an urban Indian organization in this Act, and shall not be subject to the provisions of the ISDEAA. Sec. 514 Conferring with UIOs. IHS must confer, “to the maximum extent practicable, with UIOs in carrying out the IHCIA. Sec Expanded Authority. Covers all programs under sections 218, 702, and 708(g). Sec Community Health Representatives. Sec Use of Federal Facilities and Sources of Supply. Sec Health Information Technology grants. April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 34 Sonosky, Chambers, Sachse, Miller & Munson, LLP

OPPORTUNITIES TO EXPLORE AND LEARN Sec. 411 Navajo Nation Medicaid Agency Feasibility Study. Sec. 214 Epidemiology centers. Secretary must grant tribal epi centers access to “data, data sets, monitoring systems, delivery systems, and other protected health information in possession of the Secretary.” Sec. 401(d)(3)(B). Coordination of Information. IHS must provide the CMS Administrator with information about enrolled providers and other info CMS may require April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 35 Sonosky, Chambers, Sachse, Miller & Munson, LLP

OVERSIGHT Sec. 827 Prescription Drug Monitoring. Requires the Secretary to work with the Attorney General and Secretary of Interior to establish a prescription drug monitoring program and report to Congress within 18 months. Lots of Studies April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 36 Sonosky, Chambers, Sachse, Miller & Munson, LLP

DON’T FORGET, IT DIDN’T ALL CHANGE Purpose, Policy & Definitions Title I Health Professions Title II Health Programs Title III Facilities Title IV Funding and Access Title V Urban Indian Programs Title VI IHS Organization Title VII Behavioral Health Title VIII Miscellaneous April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 37 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ACRONYMS FOR IHCIA AND ACA ACA = Patient Protection and Affordable Care Act, Pub. L ARRA = American Recovery and Reinvestment Act of 2009, Pub. L (Feb. 2009) AI/AN = American Indian/Alaska Native CHIP (or CHP) = Child Health Insurance Program CHIPRA = Children’s Health Insurance Program Reauthorization Act, Pub. L (Feb. 2009) CHSDA = Contract Health Service Delivery Area April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 38 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ACRONYMS FOR IHCIA AND ACA CMS = Centers for Medicare & Medicaid Services DHAT = Dental Health Aide Therapist DoD = Department of Defense FEHBP = Federal Employee Health Benefit Plan FPL = Federal Poverty Level HHS = Department of Health and Human Services HMO = health maintenance organization IHCIA = Indian Health Care Improvement Act, Pub. L , as amended IHS = Indian Health Service April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 39 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ACRONYMS FOR IHCIA AND ACA IRC = Internal Revenue Code ISDEAA = Indian Self-Determination & Education Assistance Act, Pub. L , as amended I/T/U = Indian Health Service/Tribal Health Program/Urban Indian Organization MAGI = Modified Adjusted Gross Income MEDPAC = Medicaid and CHIP Payment and Access Commission MMA = Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L (Dec. 2003) April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 40 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ACRONYMS FOR IHCIA AND ACA MMPC = Medicare/Medicaid Policy Committee of the NIHB NIHB = National Indian Health Board OCIIO = Office of Consumer Information and Insurance Oversight in HHS PCIP = Pre-Existing Condition Insurance Plan (often referred to as “high risk pool” plan) TTAG = Tribal Technical Advisory Group to the CMS TrOOP = True Out-of-Pocket costs applicable to Medicare Part D April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 41 Sonosky, Chambers, Sachse, Miller & Munson, LLP

ACRONYMS FOR IHCIA AND ACA UIO = Urban Indian Organization, as defined in IHCIA Sec. 4(29) VA = Department of Veterans Affairs April 18, 2012 NIHOE ● National Tribal Health Reform Training Slide 42 Sonosky, Chambers, Sachse, Miller & Munson, LLP