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

NIHB Supplemental Submission - Definition of IndianMore simply put,mere restatement of statutory definitions into the final rules is insufficient foreffective implementation of the ACA;indicating that the statutory definitions are limited to ―members of Federallyrecognizedtribe‖ is a misstatement of the statutory definitions cited in theACA;failure to use the same interpretation of the definition would createunnecessary confusion and unwarranted inconsistencies in determining who is―Indian‖.2. Recommended Solutions.First, and most basically, HHS and other Federal agencies implementing the ACAshould amend the statements in the preamble to the Exchange Establishment NPRM and thepreamble to the Exchange Eligibility NPRM to make it clear that being Indian is not limitedto members of Federally-recognized Tribes.Second, and at a minimum, the final regulations should recognize that the definitionsof ―Indian‖ under the ISDEAA (applicable to reduced cost-sharing) and IHCIA (applicable tospecial enrollment periods) are operationally the same.Third, the exemptions for Indians from individual responsibility requirements andrelated penalties for those who are not exempt under IRC § 5000A should be operationalizedto include all Indians entitled to special enrollment benefits and cost sharing protections,which rely on the IHCIA and ISDEAA definitions respectively. This is appropriate andlawful since it is only one piece of the larger regulatory scheme to (1) establish Exchangesand (2) streamline the application and eligibility process for the Exchanges and Medicaid.These objectives cannot be achieved if the same individual is treated as an Indian for onepurpose, but not for others.Finally, the statutory definitions should be operationalized in the final rules so thatpeople not steeped in Indian law can easily determine whether an individual is an Indian forthe purposes of the ACA, preferably and most correctly, as the definition is set forth in 42C.F.R. § 447.50. 17 CMS promulgated Section 447.50 to implement the AI/AN-specific17This definition of ―Indian‖ is:any individual defined at 25 USC 1603(c)[IHCIA Sec. 4(13)], 1603(f) [IHCIA Sec.4(28) , or 1679(b) [IHCIA Sec. 809], or who has been determined eligible as anIndian, pursuant to Sec. 136.12 of this part. 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 fourcriteria:National Indian Health Board Page 4 of 24 October 31, 2011