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Announcement

Health Care Reform Becomes Law: Indian Health Care Improvement Act Reauthorized

April 08, 2010

On March 23rd, President Obama signed into law H.R. 3590, the "Patient Protection and Affordable Care Act," Pub. L. 111-148 (the "Act"). On March 30th, H.R. 4872, the "Health Care and Education Reconciliation Act," including amendments to the Act agreed upon by both chambers of Congress, was signed by the President Pub. L. 111-152. The Act, which is intended to extend health insurance coverage to an additional 32 million persons, provides extensive consumer protections intended to prevent loss of health insurance, mandates that individuals maintain health insurance beginning in 2014, establishes insurance exchanges intended to expand insurance availability, provides subsidies to individuals and small businesses to encourage coverage and makes many other changes to the American health care system and health insurance market. Provided below are a suggested action plan, as well as summaries of the Act, including the reauthorized Indian Health Care Improvement Act and provisions of the larger Act that affect tribes and tribal members.

Action Plan: How G&K Can Help
Tribes should adopt a plan to assure that they take full advantage of the opportunities now available, including the following steps:

  • Implement provisions that permit them to determine eligibility of tribal members for Medicaid and Children's Health Insurance Program (CHIP);
  • Adopt systems to take advantage of provisions that allow tribes to bill Medicare or Medicaid for services provided by tribes;
  • For tribes carrying out programs under the Indian Self-Determination Act, assess the potential benefits of insuring employees under the Federal Employee Health Benefit (FEHB);
  • Assess community need for services now eligible for financing under the Indian Health Care Improvement Act (IHCIA), long-term care, including home health care, assisted living, and community-based care, taking into consideration potential sources of funding for facilities through USDA Community Facilities Program, tribal tax exempt bonds and other sources;
  • Monitor development of standards for health plans, to be developed by the Secretary of HHS under the Act, evaluate compliance of plans offered by tribe;
  • Evaluate potential benefits of designating specified areas as contract health service delivery areas;
  • Consider applying for youth suicide prevention grant; and
  • Consider applying for public health community intervention grant for screenings and clinical referrals of members 55-64 years old.

Godfrey & Kahn's Indian Nations Law and Health Law teams can help your tribe formulate and implement a strategy to take full advantage of the Act and preserve tribal dollars to meet the needs of members. We have extensive experience with Medicaid, Medicare and CHIP reimbursement billing, staffing and clinical operations issues. Contact Brian Pierson at 414-287-9456 or bpierson@gklaw.com for more information about the firm's Indian country health law practice.

Reauthorization of the Indian Health Care Improvement Act
The Act includes the Indian Health Care Improvement Reauthorization and Extension Act of 2009 (S. 1790), as reported by the Committee on Indian Affairs of the Senate in December 2009. S. 1790. The reauthorized IHCIA:

Administrative

  • permanently authorizes appropriations to fund the Indian health programs set forth in the Indian Health Care Improvement Act of 1976, as amended ("IHCIA");
  • revises requirements for health care personnel, facilities, programs, and services;
  • authorizes the Secretary to enter into or expand arrangements for the sharing of medical facilities and services between the Service, Indian Tribes, and Tribal Organizations and the Department of Veterans Affairs (VA) and the Department of Defense (DOD), requiring the VA or DOD to pay reimbursement for services provided to VA- or DOD-eligible Indian beneficiaries;
  • permits a tribe or tribal organization carrying out programs under the Indian Self-Determination and Education Assistance Act or an urban Indian organization carrying out programs under Title V (Health Services for Urban Indians) of that Act to purchase insurance under the Federal Employee Health Benefit Program (FEHB) for the employees of such Indian tribe, tribal organization, or urban Indian organization; and
  • provides for the designation of specified areas as contract health service delivery areas.

Demonstration Programs and Grants

  • authorizes demonstration programs for modular component health care facilities and mobile mental health stations in Indian communities;
  • provides grants to assist a tribe in establishing and administering programs to help members enroll in Medicare, Medicaid and CHIP and to pay premiums where applicable for such programs based on financial need, as determined by the tribe;
  • authorizes programs to increase the recruitment and retention of health care professionals, such as updates to the scholarship program, demonstration programs which promote new, innovative models of health care, to improve access to health care for Indians and Alaska Natives; and
  • establishes demonstration projects that provide incentives to use innovative facility construction methods, such as modular component construction and mobile health stations, to save money and improve access to health care services.

Expansion of Services To Tribal Members

  • expands permissible uses of funds appropriated under the IHCIA to include behavioral, mental, youth, hospice, long-term care, assisted living, and community-based care;
  • for the first time, authorizes long-term care, including home health care, assisted living, and community-based care;
  • establishes mental and behavioral health programs beyond alcohol and substance abuse, such as fetal alcohol spectrum disorders, and domestic violence prevention programs;
  • amends Section 813 of the IHCIA to clarify eligibility of non-member minor children and spouses; and
  • improves youth suicide prevention programs, including streamlining the process by which Indian tribes apply for youth suicide prevention grants.

Payment and Reimbursement

  • permits a tribe to directly bill Medicare, Medicaid, and the Children's Health Insurance Program (CHIP) for health care provided by the tribe;
  • requires a federal health care program (e.g., Medicare and Medicaid) to accept an Indian Health Service (IHS), tribe, tribal organization, or urban Indian organization entity as a provider eligible to receive payment under the program for services furnished to an Indian on the same basis as any other qualified provider;
  • provides for negotiation of regulations to establish a disbursement formula for contract health service funds;
  • authorizes the Secretary of Health and Human Services ("Secretary") to accept from any source, including federal and state agencies, funds, equipment, or supplies that are available for the construction or operation of Indian health care facilities; and
  • requires that the IHS budget account for medical inflation rates and population growth, in order to combat the dramatic underfunding of the Indian health system.

Other Provisions of the Act Specific to Tribes
The Act includes numerous references to Indian country and the Indian health care delivery systems. Among other provisions, the Act:

Expansion of Services to Tribal Members

  • requires the Secretary, acting through the Director of CDC, to carry out oral health activities, including cooperative agreements with state, territorial, and tribes or tribal organizations for oral health data collection and interpretation, a delivery system for oral health, and science-based programs to improve oral health.

Healthcare Workforce

  • creates an exception to the requirement that a national Community Health Aide Program exclude dental health aide therapist services; and
  • requires the Secretary to establish the Public Health Workforce Loan Repayment Program to assure an adequate supply of public health professionals to eliminate critical public health workforce shortages in federal, state, local, and tribal public health agencies.

Miscellaneous

  • permits tribes to compete for pilot program grants pilot for public health community interventions, screenings and clinical referrals for persons 55-64 years old.

Payment and Reimbursement

  • declares health programs offered by the Indian Health Services, tribes, tribal organizations and urban Indian organizations to be the payer of last resort; and
  • requires the Secretary to reimburse certain Indian hospitals and clinics for all Medicare part B services.

Programs and Grants

  • makes IHS, tribal and urban Indian trauma centers eligible for grants to (1) assist in defraying substantial uncompensated care costs; (2) further the core missions of such trauma centers, including by addressing costs associated with patient stabilization and transfer; and (3) provide emergency relief to ensure the continued and future availability of trauma services.

Tribal Members

  • exempts tribal members from the obligation, beginning in 2014, that individuals maintain minimal essential health care coverage; and
  • excludes from gross income the value of certain health benefits provided to members of Indian tribes, including: (1) health services or benefits provided or purchased by IHS; (2) medical care provided by an Indian tribe or tribal organization to a member of an Indian tribe; (3) accident or health plan coverage provided by an Indian tribe or tribal organization for medical care to a member of an Indian tribe and dependents; and (4) any other medical care provided by an Indian tribe that supplements, replaces, or substitutes for federal programs.

Other Important Provisions of the Act
The Act will profoundly affect the way health care is delivered and financed, affecting virtually everyone, including tribes and their members. The Act:

Alternative Forms of Insurance Coverage

  • requires the Secretary to establish a temporary high risk health insurance pool program to provide health insurance coverage to eligible individuals with a preexisting condition and for the transition of such persons to an American Health Benefit Exchange (Exchange) by January 1, 2014;
  • requires the Secretary to establish a temporary reinsurance program to provide reimbursement to participating employment-based plans for a portion of the cost of providing health insurance coverage to early retirees before January 1, 2014; and
  • allows health plans in the individual market to offer catastrophic coverage for individuals under age 30, with certain limitations.

Demonstration Programs and Grants

  • provides grants for state and local governments and community-based organizations to implement health activities to reduce chronic disease;
  • provides grants to state, local and tribal governments for pilot programs for public health community interventions, screenings and clinical referrals for persons 55-64 years old;
  • provides numerous grant programs and pilot programs intended to identify effective health care programs and policies;
  • requires the Secretary to award grants for the operation of nurse-managed care;
  • requires the director of the Center for Disease Control to award grants to promote positive health behaviors for populations in underserved areas through community health workers; and
  • requires the Secretary, acting through the CDC, to establish a national diabetes prevention program targeted at adults at high risk for diabetes.

Employers

  • beginning in 2018, imposes a tax on employer-provided health insurance that costs more than $10,200 for individuals and $27,500 for families, with different thresholds for certain professions;
  • imposes fines on employers of more than 50 full-time workers who do not provide health insurance;
  • allows an employer to select a level of coverage to be made available to employees through an Exchange and allows employees to choose to enroll in any qualified health plan that offers that level of coverage;
  • allows qualified small employers to elect, beginning in 2010, a tax credit for 50% of their employee health care coverage expenses, defining "qualified small employer" as an employer who has no more than 25 employees with average annual compensation levels not exceeding $50,000;
  • allows certain small employers to include as a benefit in a tax-exempt cafeteria plan a qualified health plan offered through an Exchange;
  • amends the Fair Labor Standards Act of 1938 to: (1) require employers with more than 200 full-time employees to automatically enroll new employees in a health care coverage plan and provide notice of the opportunity to opt-out of such coverage; and (2) provide notice to employees about an Exchange, the availability of a tax credit for premium assistance, and the loss of an employer's contribution to an employer-provided health benefit plan if the employee purchases a plan through an Exchange;
  • imposes fines on large employers (employers with more than 50 full-time employees) who fail to offer their full-time employees the opportunity to enroll in minimum essential coverage or who have a waiting period for enrollment of more than 60 days; and
  • requires employers to provide a space, other than a rest room, for breastfeeding.

Healthcare Workforce

  • establishes a National Health Care Workforce Commission to: (1) review current and projected health care workforce supply and demand; and (2) make recommendations to Congress and the Administration concerning national health care workforce priorities, goals, and policies;
  • requires the Secretary to establish the National Center for Health Care Workforce Analysis to provide for the development of information describing and analyzing the health care workforce and workforce related issues; and
  • provides incentives and financial assistance for the training and support of health professionals in the areas of nursing, pediatrics, public health, dental care, geriatrics, and adolescent mental health.

Health Insurance Exchange

  • requires states to establish an American Health Benefit Exchange that: (1) facilitates the purchase of qualified health plans; and (2) provides for the establishment of a Small Business Health Options Program that is designed to assist qualified small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market in the state;
  • sets forth the requirements for an Exchange, including that an Exchange: (1) must be a governmental agency or nonprofit entity that is established by a state; (2) may not make available any health plan that is not a qualified health plan; (3) must implement procedures for certification of health plans as qualified health plans; and (4) must require health plans seeking certification to submit a justification of any premium increase prior to implementation of such increase;
  • allows a state to establish one or more subsidiary Exchanges for geographically distinct areas of a certain size;
  • permits states to allow large employers to join an Exchange after 2017; and
  • requires the Secretary to establish and operate an Exchange within a state if the state does not have one operational by January 1, 2014.

Market Reforms

  • prohibits a health plan from establishing lifetime limits or annual limits on the dollar value of benefits for any participant or beneficiary after January 1, 2014, while permitting a restricted annual limit for plan years beginning prior to January 1, 2014;
  • prohibits a health plan from rescinding coverage of an enrollee except in the case of fraud or intentional misrepresentation of material fact;
  • requires health plans to provide coverage for, and to not impose any cost sharing requirements for: (1) specified preventive items or services; (2) recommended immunizations; and (3) recommended preventive care and screenings for women and children;
  • requires a health plan that provides dependent coverage of children to make such coverage available for an unmarried, adult child until the child turns 26 years of age;
  • requires the Secretary of Health and Human Services (HHS) to develop standards for health plans (including grandfathered health plans) to provide an accurate summary of benefits and coverage explanation. Directs each such health plan, prior to any enrollment restriction, to provide such a summary of benefits and coverage explanation to: (1) the applicant at the time of application; (2) an enrollee prior to the time of enrollment or re-enrollment; and (3) a policy or certificate holder at the time of issuance of the policy or delivery of the certificate;
  • requires the Secretary to develop reporting requirements for health plans on benefits or reimbursement structures that: (1) improve health outcomes; (2) prevent hospital readmissions; (3) improve patient safety and reduce medical errors; and (4) promote wellness and health;
  • requires a health plan to implement an effective process for appeals of coverage determinations and claims;
  • establishes requirements for health plans related to: (1) designation of a primary care provider; (2) coverage of emergency services; and (3) elimination of referral requirements for obstetrical or gynecological care;
  • prohibits a health plan from: (1) imposing any preexisting condition exclusion; or (2) discriminating on the basis of any health status-related factor. Allows premium rates to vary only by individual or family coverage, rating area, age, or tobacco use;
  • requires health plans in a state to: (1) accept every employer and individual in the state that applies for coverage; and (2) renew or continue coverage at the option of the plan sponsor or the individual, as applicable;
  • prohibits a health plan from establishing individual eligibility rules based on health status-related factors, including medical condition, claims experience, receipt of health care, medical history, genetic information, and evidence of insurability;
  • sets forth provisions governing wellness programs under the health plan, including allowing cost variances for coverage for participation in such a program;
  • requires health plans that offer health insurance coverage in the individual or small group market to ensure that such coverage includes the essential health benefits package;
  • requires a group health plan to ensure that any annual cost-sharing imposed under the plan does not exceed specified limitations;
  • prohibits a health plan from: (1) applying any waiting period for coverage that exceeds 90 days; or (2) discriminating against individual participation in clinical trials with respect to treatment of cancer or any other life-threatening disease or condition;
  • defines "qualified health plan" to require that such a plan provides essential health benefits and directs the Secretary to: (1) define essential health benefits and include emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, preventive and wellness services and chronic disease management, and pediatric services, including oral and vision care; (2) ensure that the scope of the essential health benefits is equal to the scope of benefits provided under a typical employer plan; and (3) provide notice and an opportunity for public comment in defining the essential health benefits;
  • sets forth levels of coverage for health plans defined by a certain percentage of the costs paid by the plan;
  • requires the Secretary to establish criteria for the certification of health plans as qualified health plans, including requirements for: (1) meeting market requirements; and (2) ensuring a sufficient choice of providers;
  • applies mental health parity provisions to qualified health plans; and
  • requires the Secretary to establish the Consumer Operated and Oriented Plan (CO-OP) program to foster the creation of qualified nonprofit health insurance issuers to offer qualified health plans in the individual and small group markets.

Medicare/Medicaid

  • provides a rebate to plug the $250 "donut hole" in Medicare prescription drug coverage beginning in 2010;
  • provides increased federal Medicaid assistance to states whose current coverage does not meet federal requirements;
  • beginning in 2014, extends Medicaid to individuals under 65 who are not entitled to enroll in Medicare and have incomes under 133% of the poverty line and permits states to provide Medicaid coverage to them as of April 1, 2010 and provides for federal payment of the costs of Medicaid coverage for such persons from 2014 through 2016;
  • permits state to extend Medicaid coverage to individuals with income above 133% of the poverty line beginning in 2014; and
  • amends Medicare to direct the Secretary to establish a value-based purchasing program to provide incentive payments to hospitals and other providers that meet performance standards.

Miscellaneous

  • requires the Secretary to establish a mechanism, including an Internet website, through which a resident of, or small business in, any state may identify affordable health insurance coverage options in that state;
  • requires restaurant chains to provide calorie counts for offerings; and
  • increases federal support for the Children's Health Insurance Program.

Provider Reform

  • requires hospitals to establish and make public a list of their standard charges for items and services.

Tribal Members

  • requires individuals to maintain minimal essential health care coverage beginning in 2014 and imposes a penalty for failure to maintain such coverage beginning in 2014, except for certain low-income individuals who cannot afford coverage, members of Indian tribes, and individuals who suffer hardship;
  • provides federal assistance to help cover the cost of insurance for individuals who earn between 133 and 400 percent of the federal poverty level (or $24,352 to $73,240 for a family of three in 2010);
  • beginning in 2015, taxes individuals who do not purchase insurance, at a rate of $325 or 2% of income, whichever is higher, with taxes increasing in later years;
  • increases the Medicare payroll tax for individuals earning more than $200,000 and couples earning more than $250,000;
  • imposes a 3.8% surtax on investment income;
  • allows individual taxpayers whose household income equals or exceeds 100%, but does not exceed 400%, of the federal poverty line a refundable tax credit for a percentage of the cost of premiums for coverage under a qualified health plan;
  • requires reductions in the maximum limits for out-of-pocket expenses for individuals enrolled in qualified health plans whose incomes are between 100% and 400% of the poverty line; and
  • disregards the premium assistance tax credit and cost-sharing reductions in determining eligibility for federal and federally assisted programs.


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