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

NIHB Supplemental Submission - Definition of IndianOtherwise stated, the ISDEAA explicitly prohibits tribal health programs fromreducing eligibility for services for which individuals would otherwise be entitled pursuant tothe IHCIA, including California Indians. Clearly, the ISDEAA definition of Indian cannot beread as requiring membership in a Tribe, Federally-recognized or otherwise, in order for anindividual to count as an ―Indian.‖Essentially, the concept of ―Indian community‖ goes beyond a Tribe andencompasses members of the geographic ―recipient Indian community.‖ 63 As a result, anyindividual of Indian descent belonging to an ―Indian community,‖ as that term is used in 42C.F.R. § 136 should be considered an ―Indian‖ for the purposes of the ISDEAA, andtherefore for the purposes of the Exchange-related provisions. And, in any case, as discussedearlier in this paper, the legislative history of the ISDEAA cannot be read as supporting aninterpretation that it applies only to members of Federally-recognized Indian Tribes.5. HHS (and Other Federal Agency) Regulatory Authority.In tribal consultations regarding the ACA, HHS officials have responded to requestsfor more developed rulemaking regarding implementation of the definition of Indian bysuggesting that they lack the authority to do more than to restate the various definitions ofIndian as they specifically apply to particular provisions. This is incorrect. 64 HHS and otherFederal agencies have the legal authority to implement the statutory definitions of ―Indian‖for the purposes of Exchange establishment and eligibility and related tax provisions, just asit did when it implemented ARRA.HHS is responsible for the administration of Indian health programs and thefulfillment of the special trust responsibility owed to Indians, as well as administration ofMedicaid, CHIP, and the Exchange plans. Clear definitions that actually describe whichindividuals may benefit from the Indian-specific provisions of the ACA are consistent withthe statutory mandate to implement the Indian-specific provisions of the ACA as well theIHCIA and other statutes governing Indian health care programs. Such definitions are alsorequired to achieve the key purposes of administrative rulemaking – to resolve ambiguitiesthat are inherent in complex legislation and provide regulatory detail to implement statutorygeneralities.provisions for the performance of personal services which would otherwise be performed by Federalemployees including, but in no way limited to, functions such as determination of eligibility ofapplicants for assistance, benefits, or services, and the extent or amount of such assistance, benefits, orservices to be provided and the provisions of such assistance, benefits, or services, all in accordancewith the terms of the contract or grant and applicable rules and regulations of the appropriateSecretary: Provided, That the Secretary shall not make any contract which would impair his ability todischarge his trust responsibilities to any Indian tribe or individuals.‖).626364Id. at § 458aaa-4(b)(2)(D).Schmasowv. Native Am.Ctr., 968 P.2d 304(Mont.1999).We must also note that, as we discussed in Section 3 of this Analysis and Comment, thepreambles to the NPRMs, in fact, did redefine Indian more narrowly than even the statutory definitionsthemselves.National Indian Health Board Page 15 of 24 October 31, 2011