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v.7, 2012‐09‐23a “organized groups and communities,” including Alaska Native regional and village corporations. Because it is not readily apparent from a simple read of the definitions which entities are included in the description of “Indian tribes,” IHS and CMS both previously determined – for purposes of determining eligibility for IHS services and for Indian-specific Medicaid protections, respectively – that detailed guidance was necessary on which entities are included as “Indian tribes”, who is considered a “member” of such Indian tribes, and what documentation serves to prove one’s status as an “Indian”. It is important to point out that a basic principle of tribal sovereignty is that tribes can decide who their members are. This is very similar to the United States government deciding who can be a U.S. citizen. For the United States as well as for tribes, the definition of a citizen can change over time, 18 and there may be differences between countries (and tribes) as to what qualifies an individual to be a citizen. For some tribes, tribal membership confers at a specified age, such as 18. For other tribes, parents may apply for membership for their children at time of birth. The eligibility guidance issued by IHS and CMS accommodates such differences in tribal membership/citizenship procedures to ensure that all AI/AN persons intended by Congress to be eligible for such Indian-specific benefits and protections are in fact included. To date, for purposes of implementing the Indian-specific Exchange-related provisions of the ACA, the Department of Health and Human Services, and by extension CMS, has been reluctant to issue detailed guidance on the implementation of these definitions, particularly guidance that applies a uniform operational definition across the Medicaid and Exchange provisions. As expressed by HHS before it determined that the various statutory provisions cited in the ACA were operationally the same, there was concern that the ACA-specific definitions of Indian 19 might result in different benefits being available to different individuals because the definitions might cover different individuals. Thus, HHS concluded that its ability was constrained to apply in toto the operational guidance issued by CMS in the past, which included individuals eligible under each of the definitions of who is Indian. We understand there may be disagreements between the national tribal organizations and HHS on these matters. For example, some of the specific categories used for determining eligibility for Medicaid protections that are included under the CMS operational guidelines may be considered not to be within the narrower ACA-cited definitions. But, we believe that any exclusions of eligibility categories that may be required by HHS are identifiable, would be limited, and would enable the remainder of the CMS guidance to be relied upon for purposes of determining eligibility through an Exchange-facilitated, streamlined eligibility determination process. Simultaneously, if determined necessary by HHS and the Administration to do so, a legislative fix could be pursued with Congress in order to either solidify the application of a uniform operational definition or to eliminate the need to include specific exceptions to a uniform operational definition. IV. The ACA References Different Provisions of Federal Law in Defining Persons Eligible for Indian-specific Benefits and Protections In addition to the health insurance benefits made available to all Americans, including AI/AN, the Affordable Care Act established additional benefits and protections that are specific to American Indians and Alaska Natives. Table A presents (1) the Indian-specific protections and benefits contained in the Northwest Portland Area Indian Health Board Page 3 of 16
v.7, 2012‐09‐23a ACA, (2) the section of federal law referenced defining eligibility for the provision, and (3) the lead implementing agency for the provision. Table A: Indian-Specific Provisions of Affordable Care Act Exchange-related Provisions IRS-related Special Enrollment Periods for AI/ANs Cost-Sharing Protections for AI/ANs Section of ACA ACA § 1311(c)(6)(D) ACA § 1402(d)(1) and (2) Section of federal law cited that defines eligibility for Indian-specific provision Lead implementing agency Section 4 of IHCIA: “(D) special monthly enrollment periods for Indians (as defined in section 4 of the Indian Health Care Improvement Act).” Exchange (but with option of deferring to HHS for eligibility determinations) Section 4(d) of ISDEAA: 21 “If an individual enrolled in any qualified health plan in the individual market through an Exchange is an Indian (as defined in section 4(d) of the Indian Self-Determination and Education Assistance Act (25 USC 450b(d)))…” Exchange (but with option of deferring to HHS for eligibility determinations) Exemption from Penalty for Failing to Maintain Minimum Essential Coverage ACA § 1501(b)) creating IRC 20 § 5000A(e)(3) Section 45A(c)(6) of the IRC: “[A]ny applicable individual for any month during which the individual is a member of an Indian tribe (as defined in section 45A(c)(6)” Internal Revenue Service Two of the Indian-specific protections (special monthly enrollment periods 22 and additional cost-sharing protections 23 ) are available only to AI/ANs who are enrolled in the individual market through an Exchange. An Exchange, whether operated by a state or state-established entity or by HHS, has the responsibility for determining eligibility for these Exchange-related Indian-specific provisions, although an Exchange may rely upon HHS for determinations of eligibility for the premium tax credits and costsharing assistance as provided for under 45 CFR 155.302(c). A third provision (providing an exemption from any penalties for AI/ANs who do not maintain minimum essential coverage) is to be administered by the Internal Revenue Service, 24 We understand there will be coordination between determinations made by HHS and those that IRS must make, however the mechanics of the working relationship are as yet unknown to us. Eligibility for the special monthly enrollment periods is defined in section 4 of the IHCIA. Eligibility for the cost-sharing protections is defined in section 4(d) of the ISDEAA. Under both provisions, as well as under the Internal Revenue Code-related definition, an “Indian” is defined as a person who is a member of an Indian tribe. Exchange-related Definitions of Indian (IHCIA and ISDEAA) “Operationally Mean the Same Thing” Shown below is a combined definition of “Indian tribe” drawn from the definitions in the IHCIA and the ISDEAA that are referenced in the Exchange-related provisions. The definition of Indian tribe from the ISDEAA is shown verbatim, with any additional language from the IHCIA definition added and highlighted in underline. Northwest Portland Area Indian Health Board Page 4 of 16
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MEDICARE, MEDICAID, & HEALTH REFORM
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GENERAL INFORMATION TABLE OF CONTEN
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Last Updated: November 12, 2012 2.
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Ref. # 2. Task/Issue Person(s) CMS
Page 9 and 10: Ref. # II. POLICY Task/Issue Person
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Page 15 and 16: IV. OUTREACH AND EDUCATION MMPC: SU
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Page 19 and 20: MMPC October 9, 2012 Teleconference
Page 21 and 22: To do List: -Myra will have draft b
Page 23 and 24: Internal Revenue Service Meeting No
Page 25 and 26: with a “interim/acting”. Can al
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Page 49 and 50: Letter: Dr. Robert Petzel, Under Se
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Page 77 and 78: Summary T he Indian Health Service
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Page 81 and 82: Introduction Reliable determination
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Analysis Group Compiled Findings fo
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Findings Adjusted Mean Payments for
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Findings Figure 18. Percent differe
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Findings providers for services nee
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Findings Figure 21. Medicaid Altern
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Conclusions and Recommendations pro
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Indian Health Service, 2012. Federa
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Tribal Consultation Policy HHS 1. P
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defined in Sections 8 and 9 of this
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2. Office of Intergovernmental Affa
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will give equal consideration to th
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provide Indian Tribes with a region
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4. Each Operating Division Head/Dep
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Department’s ability to address i
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17. Sovereignty - The ultimate sour
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1. Selection of workgroup co-chairs
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It is unclear if this was just an o
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November 14 -15, 2012 TTAG FACE TO
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AGENDA: Day 2 Thursday - Nov. 15, 2
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Subpart G--Social Services Block Gr
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organization applying for or receiv
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members of a tribe receiving direct
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is at or below the poverty line. (d
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under this part. Grantees that rece
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income home energy assistance progr
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Need for Uniform Operational Guidan
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Dear Tribal Representatives, Octobe
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There is a strong correlation betwe
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Wed. Nov 14 th : SDPI National Call
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Future MMPC Meetings & Conference C
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Regulation Review and Impact Analys
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64. Policy on Conferring with Urban
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RRIAR Ref. # 1.c. 8. 9. 13. Short T
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premium tax credit assistance and c
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Access to this benefit is criticall
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community providers for purposes of
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November 12, 2012 Centers for Medic
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_________ American Indian or Alaska
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November 9, 2012 Page 2 We are comm
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Tribal Consultation for Health Insu
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Background Analysis of Tribal Consu
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Analysis of Tribal Consultation Pol
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D. FFE Data Analysis of Tribal Cons
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John O'Brien Director, Healthcare &
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