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

NIHB Supplemental Submission - Definition of Indian5.1 The Transfer Act.The Transfer Act provided[t]hat all functions, responsibilities, authorities, and duties of theDepartment of the Interior, the Bureau of Indian Affairs, Secretary ofthe Interior, and the Commissioner of Indian Affairs relating to themaintenance and operation of hospital and health facilities for Indians,and the conservation of the health of Indians, are hereby transferred to,and shall be administered by, the Surgeon General of the United StatesPublic Health Service, under the supervision and direction of theSecretary of Health, Education, and Welfare. 65This extremely broad responsibility arising from both the trust obligations of the UnitedStates to Indians and the Snyder Act, was accompanied by expansive authority ―to make suchother regulations as [the Secretary] deems desirable to carry out the provisions of this Act.‖ 66NIHB believes this authority carries over to HHS implementation of the Indian-specificprovisions of the ACA, which can only be read as being intended to relate to the maintenanceand operation of hospital and health facilities for Indians and the conservation of health ofIndians. HHS should not ignore this authority.5.2 Judicial Deference to Agency Regulations.The courts have recognized broad agency authority to promulgate regulations that areconsistent with congressional intent. 67 Courts have also recognized an agency‘s power toadopt regulations that accommodate conflicting policies, 68 with one court noting that thisrequires upholding regulations that fall ―within the universe of plausible approaches.‖ 69656667Pub. L. 83-568.Sec. 3 of Pub. L. 83-568.See, e.g., Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir. 2006) (―It was reasonable for the[Patent Trade Office] to interpret legal authority to render service as being a necessary qualification.Accordingly, it was reasonable for the PTO to enact regulations that limit an alien‘s ability to practicebefore it to those activities in which the alien may lawfully engage. Therefore, the PTO did not exceedits statutory authority in promulgating the regulations in question.‖).68See, e.g., Cent. Az. Water Conservation Dist. v. E.P.A., 990 F.2d 1531, 1541 (9th Cir. 1993)(holding that EPA regulations were entitled to deference against a challenge that they went beyondstatutory authority ―since the agency‘s ‗choice represents a reasonable accommodation of conflictingpolicies that were committed to the agency's care by the statute,‘ which this court ‗should not disturb‘since it does not appear ‗from the statute or its legislative history that the accommodation is not onethat Congress would have sanctioned.‘‖ (citations omitted).69See, e.g., Com. of Mass., Dep’t. of Pub. Welfare v. Sec’y of Agric., 984 F.2d 514, 522 (1st Cir.1993) (―In terms of our analogy, the line drawn by [the agency], as the Secretary‘s designee, seems tohave been plotted sensibly, if not with perfect precision; that is, [the agency] chose a configurationconsistent with statutory imperatives and well within the universe of plausible approaches.‖).National Indian Health Board Page 16 of 24 October 31, 2011