1. ARRA PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP 1

2. On January 22, 2010 CMS issued guidance in a State Health Official letter implementing Indian provisions of section 5006 of ARRA (the Recovery Act) which is located at http://www.cms.hhs.gov/smdl/downloads/S MD10001.PDF. http://www.cms.hhs.gov/smdl/downloads/S MD10001.PDF 2

3. ARRA PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP ARRA COST SHARING PROTECTIONS FOR INDIANS IN MEDICAID 3

4. General The Social Security Act (the Act) allows States to impose enrollment fees, premiums, cost sharing and similar charges to Medicaid participants under title XIX at 1916 and 1916A of the Act and to CHIP under title XXI at 2103(e) of the Act. 4

5. ARRA EXEMPTIONS Section 5006 of ARRA (the Recovery Act) amends 1916 and 1916 of the Act to preclude States from imposing any cost sharing to Indian Medicaid participants effective July 1, 2009, under certain circumstances. The Recovery Act did not change the cost sharing exemptions in CHIP. CHIP exempts all American Indians and Alaskan Natives (AI/AN) from cost sharing. See 42 CFR § 457.535. 5

6. WHAT COST SHARING IS EXEMPTED? Premiums; Enrollment fees; Application fees; Coinsurance; DeductibleS; Copayment; or Similar charges 6

7. WHO IS EXEMPT FROM PAYING PREMIUMS AND ENROLLMENT FEES? An Indian who has been determined to be eligible to receive health care services from Indian health care providers pursuant to 42 CFR § 136.12. (see also 25 USC §1603(c) and (f)). This would include an Indian if they have or would be eligible to receive an item or service furnished by a Indian health provider. The exemption also applies to section 1115 waiver demonstration eligible individuals. 7

8. WHEN ARE COINSURANCE, COPAYMENTS AND DEDUCTIBLES WAIVED? When a Medicaid service is provided by an Indian health provider, and/or When a Medicaid service is provided by a non- Indian health provider under a Contract Health Service Referral. Note the difference between premium and enrollments fees from other cost sharing. 8

9. WHAT IS AN INDIAN HEALTH PROVIDER? Indian Health Service (IHS) provider. Tribal health provider or Tribal Organization operating under P.L. 93-638. Urban Indian Organization. (I/T/U) 9

10. What are Contract Health Services Used for services not available in I/T/Us. Make payments to non-Indian health providers. CHS programs are operated by Tribes and Indian Health Services – Not Urban Indian Organizations. No “Contract” with the non-Indian health provider is required. 10

11. HOW DOES THIS WORK ON THE GROUND? CMS is expected to provide technical assistance on implementation to the States and tribes. AI/AN Medicaid recipients who present a letter from an I/T/U indicating eligibility for services are exempt from paying premiums and enrollment fees. I/T/U Services and services referred by a Contract Health Services Program (CHS) are exempt from cost sharing. 11

12. HOW DOES THIS WORK ON THE GROUND? States should be encouraged to educate non- Indian health providers that they need to exempt cost sharing when an individual presents a Contract Health Services referral. 12

13. HOW DOES THIS WORK ON THE GROUND (cont.)? IHS has provided its health care providers with a standard letter to prove eligibility for I/T/U services. – I/T/Us may use their own letter or document States should work with the Contract Health Services programs in their State to determine what documents or processes will be used for referral. 13

14. PROHIBITION ON THE REDUCTION IN PAYMENT TO PROVIDERS In addition to protecting Indians from cost sharing, the Recovery Act prohibits any reduction in payment that is due under Medicaid. This includes any Indian health provider (I/T/U); or Any non-Indian health provider for a service or an item furnished at any facility through a contract health service (CHS) referral. 14

15. PROHIBITION ON THE REDUCTION IN PAYMENT TO PROVIDERS Providers must be paid the full amount due under Medicaid for furnishing the item or service. Their payment may not be reduced by the amount of any enrollment fee, premium, deduction, copayment, or similar charge that would other wise be due from the Indian. This includes any cost sharing through a managed care entity. 15

16. CMS’ EXPECTATION OF STATES CMS strongly encourages States to work closely with the I/T/Us and CHS programs to implement the cost sharing exemption. Inform non-I/T/U providers who may participate in CHS about the cost sharing exemption. Make sure that providers are made whole. 16

17. ARRA PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP ARRA Indian Resource Exclusions 17

18. INDIAN RESOURCE EXCLUSIONS In general, the Recovery Act requires States to exclude resources owned by an Indian in two categories: – Property connected to the political relationship between Indian Tribes and the Federal Government; and – Property with unique Indian significance. 18

19. INDIAN RESOURCE EXCLUSIONS Section 5006 excludes property, including real property: – Held in trust; – Subject to federal restrictions; – Under supervision of the Secretary of Interior (IIM accounts); – Located on a Reservation (or within most recent boundaries of the most recent previous reservation); 19

20. INDIAN RESOURCE EXCLUSIONS The exclusions include: – Ownership interests in rents, leases, royalties, or usage rights related to natural resources (including extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of federally protected rights. – Ownership interests in or usage rights to items not covered by paragraphs (1) through (3) that have unique religious, spiritual, traditional, or cultural significance or rights that support subsistence or a traditional lifestyle according to applicable Tribal law or custom. – Property that has unique religious, spiritual, traditional, or cultural significance or rights that support subsistence or a traditional lifestyle according to applicable Tribal law or custom. 20

21. INDIAN RESOURCE EXCLUSIONS These exclusions are in addition to already excluded resources under Federal law. Resources converted to cash or other property are NOT treated as income. Converted resources are considered for eligibility under usual Medicaid rules the first of the next month. 21

22. INDIAN RESOURCE EXCLUSIONS Casino earnings are not excluded from usual income and resource rules. States should consult tribes regarding items of spiritual or religious significance or used to support a traditional lifestyle. 22

23. ARRA PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP ARRA ESTATE RECOVERY EXEMPTIONS FOR INDIAN-SPECIFIC PROPERTY 23

24. INDIAN ESTATE RECOVERY EXEMPTIONS Not new policy. In State Medicaid Manual Section 3810.A.7. since 2005. The Recovery Act puts the CMS policy exempting certain Indian-specific items from estate recovery into the Statute. 24

25. ARRA PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP ARRA MANAGED CARE PROTECTIONS FOR INDIANS AND INDIAN HEALTH PROVIDERS 25

26. MANAGED CARE PROTECTIONS FOR INDIANSIN MEDICAID AND CHIP Provides managed care protections for Indians and Indian health providers in Medicaid and CHIP. Applies to Indians enrolled on a Mandatory or Optional Basis – Medicaid requires a waiver for mandatory enrollment of AI/AN. – CHIP does not require a waiver for mandatory enrollment of AI/AN. 26

27. MANAGED CARE PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP Applies to Managed Care Organizations (MCOs) and Primary Care Case Management (PCCM)s. Provides that an Indian enrolled in a managed care network can choose to receive covered services at an I/T/U. Requires that the Indian enrollee be allowed to choose that I/T/U as the primary care provider if they have the capacity to serve as such. 27

28. MANAAGED CARE PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP Require each managed care entity to demonstrate that there are sufficient I/T/U providers in the network to ensure timely access to services available under the contract for Indian enrollees who are eligible to receive services from such providers. The Centers for Medicare & Medicaid Services intends to issue forthcoming regulations to address the application of the requirement for sufficient I/T/Us in States where there are few or none available. 28

29. MANAGED CARE PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP Requires the managed care network to pay the I/T/U (whether participating or not) a negotiated rate or not less than the amount they would pay a participating provider. Requires the State to provide a supplemental payment up to the State Plan payment rate for the I/T/U. 29

30. ARRA PROTECTIONS FOR INDIANS IN MEDICAID AND CHIP ARRA Tribal Consultation Provisions 30

31. ARRA Tribal Consultation Provisions Section 5006(e) codified HHS’ obligation to maintain a Tribal Technical Advisory Group (TTAG) within CMS. The TTAG has Tribal representatives appointed from the twelve (12) IHS service areas, a representative of the Indian Health Service (IHS) and a National Urban Organization. 31

32. ARRA Consultation Requirements States are required to utilize a process to seek advice on a regular, ongoing basis from designees of the Indian health programs and Urban Indian Organizations concerning Medicaid and CHIP matters that have a direct effect on Indians and/or Indian health programs. Indian health programs in include those operated by Indian health Service, Tribal 638 programs and Urban Indian Organizations. 32

33. ARRA Consultation Requirements Which States Does This Apply To? This process must be followed by any State in which one or more Indian health programs furnish health services. It is applicable to States where there are no federally-recognized tribes but that have an heath care entity described above. 33

34. ARRA Consultation Requirements What Changes Require Consultation? States are required to specifically solicit advice at least 60 days prior to submission of any Medicaid or CHIP State Plan amendment (SPA), waiver request or proposal for a demonstration project likely to have a direct effect on Indians, Indian health programs, or Urban Indian Organizations, UNLESS the State and Indian health providers have a formal consultation process (mutually agreed upon). 34

35. CONSULTATION What is Consultation? The consultation process may include the appointment of an AI/AN advisory committee or an designee of the programs defined earlier to the Medicaid Advisory Board or appointment of a tribal liaison. The appointments described above DO NOT replace the consultation requirement unless ALL of the Indian health providers in the State agree to that process as their consultation process. 35

36. CONSULTATION What is Consultation? Consultation is meaningful dialogue with the federally-recognized tribes and Indian health programs in the State. CMS is requiring all States to submit a State plan amendment (SPA) to document the State’s process for consultation. States submitting consultation SPAs must consult with the tribes prior to submitting the consultation SPA. 36

37. CONSULTATION ARRA consultation requirements DO NOT replace the requirements in the July 17, 2001 letter. http://www.cms.hhs.gov/smdl/downloads/smd0 71701.pdf http://www.cms.hhs.gov/smdl/downloads/smd0 71701.pdf ARRA 5006 adds representation of Indian health programs and consultation for SPAs to the 7/17/01 guidance requiring consultation with tribes for waivers. 37

38. CONSULTATION What is a direct impact on Indians or Indian health? – Reduction in eligibility standards; – Reduction in covered services; – Reduction in payment that affects Indian health providers; – Consultation SPAs; and – Indian specific SPAs, cost-sharing SPAs addressing AI/AN ARRA protections, Indian property exclusions, Indian health payment SPAs. 38

39. CONSULTATION CMS will be verifying for any of these kinds of SPAs and Waiver Proposals, Renewals, Amendments and Extensions: – That consultation occurred, how it occurred and any response or concerns from the entities. – Including consultation information on the OSN. – If consultation did not occur, approval of the SPA or waiver submittal may be delayed or the effective date may be delayed. 39

40. CONSULTATION Additional CMS Guidance July 1, 2001 CMS released a State Medicaid Director letter providing guidance on the consultation process with Federally recognized Tribes. That letter can be found at: http://www.cms.hhs.gov/smdl/downloads/smd 071701.pdf 40

41. CONSULTATION Encourage States and Tribes to work together to come up with a process that works for both. July 1, 2001 letter will be revised to include the new provisions. 41

42. Questions? 42