“Health Insurance Premium Tax Credit” (IRS REG-131491-10)

NIHB Supplemental Submission - Definition of IndianACA special benefits and protections in which the implementation of the definition of―Indian‖ is of greatest concern relate to special enrollment, 3 cost sharing protections, 4 andprotection from tax penalties. 5The Department of Health and Human Services (―HHS‖), principally on behalf of theCenters for Medicare and Medicaid Services (―CMS‖), and other Federal agencies are in themidst of publishing a number of proposed rules to implement the new Affordable InsuranceExchanges (―Exchanges‖) consistent with Title I of the ACA. This analysis (―Analysis andComment‖) is intended to address comprehensively the issues surrounding the definition of―Indian‖ as it appears in the ACA and in the various proposed rules already noticed andanticipated.NIHB requests that this Analysis and Comment be incorporated by reference into thecomments that it has prepared in response to CMS-9989-P, ―Establishment of Exchanges andQualified Health Plans Implemented Consistent with Title I of the Patient Protection andAffordable Care Act;‖ 6 as an attachment to its comments in response to CMS-9974-P,―Patient Protection and Affordable Care Act; Exchange Functions in the Individual Market;Eligibility Determinations; Exchange Standards for Employers;‖ 7 and as an attachment to itscomments in response to the Department of the Treasury, Internal Revenue Service‘s noticeof proposed rulemaking published August 17, 2011 in the Federal Register titled REG-131491-10, ‖Health Insurance Premium Tax Credit.‖ 81. Statement of the Problem.Each of the categories of special benefits and protections afforded to ―Indians‖ underthe ACA refers to a different statutory definition of ―Indian‖ or fails to include anydefinition. Specifically, the opportunity for special enrollment periods for Indians found inACA § 1311(c)(6)(D) relies on the definition of Indian in § 4 of the IHCIA; 9 reduced cost345(5) to require that all actions under this Act shall be carried out with activeand meaningful consultation with Indian tribes and tribal organizations, andconference with urban Indian organizations, to implement this Act and the nationalpolicy of Indian self-determination;(6) to ensure that the United States and Indian tribes work in a governmentto-governmentrelationship to ensure quality health care for all tribal members; and(7) to provide funding for programs and facilities operated by Indian tribesand tribal organizations in amounts that are not less than the amounts provided toprograms and facilities operated directly by the Service.ACA § 1311(c)(6)(D).ACA § 1402(d).ACA §§ 1411(b)(5)(A) and Internal Revenue Code (―IRC‖) § 5000A(e)(3), as enacted byACA § 1501(b).6789Hereafter referred to as ―Exchange Establishment NPRM‖ or CMS-9989-P.Hereafter referred to as ―Exchange Eligibility NPRM‖ or CMS-9974-P.Hereafter referred to as ―Premium Tax Credit Proposed Rule‖ or IRS REG-131491-10.25 U.S.C. § 1603.National Indian Health Board Page 2 of 24 October 31, 2011