M E M O R A N D U M TO:NIHB Board Members National Steering Committee for the Reauthorization of the Indian Health Care Improvement Act Area Indian Health Board Executive Directors FROM:Stacy A. Bohlen, Executive Director Jennifer Cooper, JD, Legislative Director DATE:July 21, 2009 RE: URGENT!! Rahall Amendments to HR 3200, National Health Care Reform bill - Inclusion of the IHCIA Reauthorization in the US House of Representatives Health Care Reform Bill ACTION:PLEASE READ AND RESPOND TODAY As you may know, the US House of Representatives Tri-Committee Health Care Reform bill (HR 3200), introduced on July 14th, does not contain any American Indian or Alaska Native health care provisions. (The Tri-Committee includes the Energy and Commerce Committee, Ways and Means Committee and the Education and Labor Committee.) The House Committees on Ways and Means as well as Education and Labor have already reported the bill out on July 17thand those versions of the bill CONTAIN NO PROTECTIONS FOR INDIAN COUNTRY,despite our joint efforts to influence those proceedings. In response, NIHB, NCAI and NCUIH have been working with Chairman Rahall (Natural Resources Committee) to gain a package of Indian-specific amendments that will includeprovisions critical to Indian Country. Chairman Rahall prepared and released the information on the amendment package late yesterday afternoon. Unfortunately, the timeline for making Indian Country’s case for or against these provisions is COB TODAY as the Energy and Commerce Committee is acting on this bill NOW and is scheduled to finish its mark up on Wednesday/Thursday. This memorandum has two goals: 1.Educate Tribal Leaders and their advocates about what the Rahall Amendments seekto do for Indian health care, and;
22.Describe the IHCIA provisions included in the amendment package and seek Tribalguidance on whether Indian Country supports the IHCIA portion of the amendmentspackage. REQUESTED ACTION: Please respond as soon as possible if you have any questions or objections to the IHCIA portions in the Rahall Amendment package. Time is of the essence and we need to hear from you. Please allow us to reiterate: HR 3200 contains NO protections for the Indian health care system at this point. The Rahall package of amendments is designed to achieve someprotections and advancements for the Indian health care system. Specifically, this package includes (Full text of the Rahall Amendments is attached): • Definitions: This provision adds definitions for terms “Indian” and “Indian Health Care Provider” used in the Rahall amendment not currently used in H.R. 3200. • Inclusion of Indian Provider as Qualified Health Benefit Plan (QHBP): This provision seeks to ensure that a QHBP guarantees access to Indian health care providers where they exist within the service area. • Clarification that Limiting Indian Health Programs to Indians is NotDiscrimination: This amendment would ensure that Indian health care providers, which often may only provide health services to Indians pursuant to the IHCIA, are exemptfrom the regulations. Sec. 152 of H.R. 3200 ANS directs that all services covered by the Act shall be provided "without regard to personal characteristics extraneous to the provision of high quality health care or related services." It is unclear whether thisdirective would impact the Indian health system whose programs that are equipped/have the capacity to serve only Indian beneficiaries. This provision would establish in the law that being Indian is a political status, not a racial characteristic. Thus, this provision should expressly state that IHS or tribal programs which must limit services to Indians are not considered discriminatory. • Indian Health Provider-QHBP-Exchange: Specific language is needed to assure that components of the Indian health delivery system can participate in provider networksestablished by a Qualified Health Benefit Plan-offering entity, including a public plan, which lists health insurance products on the Exchange. Without specific language, Indian providers face exclusion from plan networks, with the result that they would not receive payment from an insurance plan for services provided Indian enrollees, and the insurance plan, which has received the premium payment, would realize a windfall. Indian health care providers have experienced such exclusion from provider networks established by Medicaid managed care entities, a problem Congress recently enacted legislation toovercome. The Rahall Amendment is modeled on the recently-enacted provision to assure Indian health providers can participate in Medicaid-managed care programs and receive payments for services.
3• IHS and Self Governance Licensing Protection: As written, the legislation bars any health care provider not licensed or certified under State law from participating in thepublic health insurance option. Federal (IHS) and Tribal facilities are not subject to state licensing laws, the current bill would bar all of these facilities from participation in a public option. An amendment is needed to exempt IHS and tribal facilities from thelicensing requirement, and to exempt their health care professionals from the requirement to be licensed in the state in which they practice, provided that the professionals are licensed or certified by any State. Finally, an individual certified under the IHCIA would also be exempted. Without these exemptions, the referenced entities could not participate in the public health insurance option. These unique Federally-related circumstances require insertion of specific language to allow these providers to participate in a public health insurance option and to receive payments for such services. • No Tax Penalty For Indians: The bill would impose a tax is imposed on individuals who do not have acceptable health coverage insurance. Exemptions are provided in HR 3200 for others, including for religious reasons and residence in the territories. In orderto fulfill treaty obligations and the Federal trust responsibility for Indian health, thisprovision exempts Indians from the tax. The Tribal perspective is that the US has failed to supply Indian people with access to an appropriate level of health care as is the trust responsibility; it would then be unconscionable for the United States to impose a penalty on Indian people for failing to acquire their own health insurance • Health Care as Taxable Income: The IRS Regional Office in California has recommended to the Washington IRS office that the health care and benefits provided through tribal paid insurance, as well as other general welfare benefits (meals on wheels, etc.) provided by tribes to their members be considered taxable income. The Rahall amendment would clarify that the care, benefits and other general welfare benefits are exempt from gross income. • Medicare Amendments: The current Social Security Act authorizes ambulatory care clinics operated by the IHS, Indian tribes, and tribal organizations to collect payment for all Part B services. This authority expires on December 31, 2009. This amendment would permanently extend this authority. It would also require 100% Medicare reimbursement to such facilities for Part A and B services. IN CONCLUSIONThese baseline protections for Indian health care are necessary for any health care system that the US government may adopt. They are designed to recognize and advance the Federal Government’s Trust responsibility to the Tribes. There are no provisions contained in these amendments that Indian Country has not already articulated, agreed upon and advanced.
4INDIAN HEALTH CARE IMPROVEMENT ACT AMENDMENTS• Amendment to Achieve Reauthorization of IHCIA: Except for those enhancementswritten below, the Rahall Amendment would reauthorize the current IHCIA through 2025. It is important to note that this action respects the NO REGRESSION FROM CURRENTLAW position: Which is the consistent, baseline position of the National Tribal SteeringCommittee for the Reauthorization of IHCIA and the NIHB. With the additional provisionsenumerated below, the Rahall reauthorization would include the following enhancements: • Self Governance Licensing Fees Equity: This provision would amend the IHCIA to exempt Tribal Health Program employees and Urban Indian Organization employees from paying licensing, registration, and other fees imposed by a Federal agency to the same extent that Commissioned Corps Officers and Indian Health Service employees areexempt. The Drug Enforcement Administration began charging a $500 fee to pharmacists working in tribally operated health facilities. The fee is not charged to IHS pharmacists.• Third Party Collections: This provision strengthens existing law which grants theUnited States, Indian tribes and Tribal Organizations a right of recovery against certain third parties for the cost of health services. Third parties include HMO’s, employee benefit plans, and tortfeasors. • Epidemiology Centers: The Rahall Amendment would update the current law by identifying epidemiology centers as public health authorities to better enable these entities to carry out their mission of collecting and analyzing health and disease information in Indian communities, creating data sets, and developing recommendationsfor improvement of health delivery systems and services to target specific needs in those communities. • Hospice, Assisted Living, Long-Term and Homecare Services: This provision would M E M O R A N D U M TO:NIHB Board Members National Steering Committee for the Reauthorization of the Indian Health Care Improvement Act