A review of the Affordable Care Act and Implementing Regulations Pertaining to:
Qualified Health Plans and Indian Health Care Providers
Citations: References to “[Fed. Reg. XXXXX]” below are to the page number in the Federal Register, Vol. 77, No. 59, Tuesday, March 27, 2012 publishing the
Final Rule on Exchanges, Qualified Health Plans, and Exchange standards. The Final Rule is divided into the preamble (pages 18310 – 18443) followed by
the actual language of the regulatory rule (pages 18444 – 18475).
Terms: Terms and abbreviations are defined in the glossary following the table below.
Issues:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Qualified Health Plans
Network Adequacy Requirements
Essential Community Providers
Non-discrimination Against I/T/: IHCIA Section 408
Mandatory Payment to I/T: IHCIA Section 206
Payments to FQHCs
Reconciling Payment Requirements: I/T/Us, ECPs, FQHCs and IHCIA Sections 408 and 206
Indian Addendum
Additional Payment to QHPs
Tribal Consultation
Cultural Competency
Enforcement
Issue; Section
of Federal Law
1. Qualified
Health Plan
Standards
ACA sections
1301 – 1322
and 45 CFR
Parts 155 and
156
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
ACA sections 1301 – 1322 impose minimum standards on health plans to be offered through an Exchange,
and when certified by an Exchange as meeting the Federal and any additional State-specific Exchange
requirements, the health plans are referred to as Qualified Health Plans (QHPs). Several of these standards
also apply to health plans offered outside of an Exchange.
There are two types of plans that may be offered through an Exchange that are not certified by the Exchange
itself. The two exceptions are: 1) health plans funded through the CO-OP Program (under ACA section 1322)
and 2) multi-State plans (under ACA section 1344). CMS is the certifying entity for CO-OP Program plans, and
the U.S. Office of Personnel Management (OPM) will certify multi-State plans. If the health plans are
certified by CMS and OPM, respectively, these plans will be “deemed” certified as an eligible QHP to be
offered through an Exchange.
Recommendation to State/Exchange;
Advocacy Points to Emphasize
RECOMMENDATION: Implement and
monitor tribal consultation by the
State and its Exchange-designated
entities in the planning,
implementation and operation of
State Exchanges, including the
establishment of State-specific QHP
requirements, and ensure adequate
funding for the technical assistance
provided to the States and Exchanges
An Exchange may be operated by a State or, in the case where a State does not elect to establish an
Northwest Portland Area Indian Health Board
Page 1 of 11
April 29, 2012
Issue; Section
of Federal Law
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
Exchange or is determined by HHS on or before January 1, 2013 that the State will not have an Exchange
operable by January 1, 2014, HHS will operate a “Federally-facilitated” Exchange in the State. In a State with
a Federally-facilitated Exchange, HHS will certify health plans as QHPs to be offered through the Exchange.
2. Network
adequacy
ACA section
1311(c)(1)(B)
In the regulations implementing the network adequacy standards of the Affordable Care Act, the following
regulatory language was included in the Exchange Establishment Final Rule issued by CMS on March 27, 2012
(CMS-9989-F), the following regulatory language was included –
Ҥ 156.230 Network adequacy standards.
(a) General requirement. A QHP issuer must ensure that the provider network of each of its QHPs, as
available to all enrollees, meets the following standards—
Recommendation to State/Exchange;
Advocacy Points to Emphasize
by AI/ANs and Tribal entities.
(See item 11 below for discussion of
Federal requirements on tribal
consultation.)
RECOMMENDATION: Require QHPs,
as a condition of participation in an
Exchange, to offer to contract with
all I/T/U as in-network providers in
their health plans (sometimes
referred to as an “any willing [I/T/U]
provider” provision.)
(1) Includes essential community providers in accordance with § 156.235;
(2) Maintains a network that is sufficient in number and types of providers, including providers that
specialize in mental health and substance abuse services, to assure that all services will be accessible
without unreasonable delay; and,
(3) Is consistent with the network adequacy provisions of section 2702(c) of the PHS Act.”
As referenced under section § 156.230(a)(1) above, QHPs must abide by the requirements under § 156.235
on Essential Community Providers. “A QHP issue must have a sufficient number and geographic distribution
of essential community providers, where available, to ensure reasonable and timely access to a broad range
of such providers for low-income, medically underserved individuals in the QHP’s service area…” [Fed. Reg.
18470] More broadly, under § 156.230(a)(2) above, the Federal regulations require QHPs to have a sufficient
number and type of providers to ensure timely access to care. But in neither section is “sufficient in
number” specifically defined. Tribal health care providers are identified by CMS as a “provider type”. [Fed.
Reg. 18419]
In issuing its Final Rule, CMS noted that “We did not accept comments recommending specific, national
[network adequacy] standards given that network adequacy is typically—and diversely—regulated by
States.” CMS emphasized that “nothing in the final rule limits an Exchange’s ability to establish more
rigorous standards” for network adequacy and for essential community provider participation, such as “a
standard that QHP issuers offer a contract to any willing essential community provider” or, more specifically,
to require a QHP to offer to contract with all I/T/U providers to participate as in-network providers. [Fed.
Reg. 18419 and 18421]
Northwest Portland Area Indian Health Board
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April 29, 2012
Issue; Section
of Federal Law
3. Essential
Community
Providers
ACA section
1311
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
The Federal (minimum) definition of Essential Community Providers includes Indian health care programs
that meet the definition of a Federally Qualified Health Center (FQHC) under § 1905(l)(2)(B) of the Social
Security Act (i.e., the Medicaid definition). Namely, an outpatient program or facility operated by a Tribe,
tribal organization and urban Indian organization is included as a type of ECP.
In the Final Rule, the following language was included in the regulation –
Ҥ 156.235 Essential community providers. (a) General requirement. (1) A QHP issuer must have a
sufficient number and geographic distribution of essential community providers, where available, to
ensure reasonable and timely access to a broad range of such providers for low-income, medically
underserved individuals in the QHP’s service area, in accordance with the Exchange’s network adequacy
standards…”
…
“(c) Definition. Essential community providers are providers that serve predominantly low-income,
medically underserved individuals, including providers that meet the criteria of paragraph (c)(1) or (2) of
this section: (1) Health care providers defined in section 340B(a)(4) of the PHS Act; and (2) Providers
described in section 1927(c)(1)(D)(i)(IV) of the Social Security Act...”
“(d) Payment rates. Nothing in paragraph (a) of this section shall be construed to require a QHP issuer to
contract with an essential community provider if such provider refuses to accept the generally applicable
payment rates of such issuer.”
The “section 340B(a)(4)” reference in the definition of an ECP incorporates FQHCs, including “an outpatient
health program or facility operated by a tribe or tribal organization under the ISDA or by an urban Indian
organization receiving funds under title V of the IHCIA for the provision of primary health services.”
Although CMS did not mandate that a QHP include all designated ECP operating in a QHP’s service area (but
rather only a “ sufficient number”), in the preamble to the Final Rule, CMS notes “the intent [is] explicit in
section 1311(c)(1)(C) of the Affordable Care Act that access to essential community providers be maximized
in QHPs…” [Fed. Reg. 18422]
Northwest Portland Area Indian Health Board
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Recommendation to State/Exchange;
Advocacy Points to Emphasize
As shown in item 2 above –
Require QHPs, as a condition of
participation in an Exchange, to offer
to contract with all I/T/U as innetwork providers in their health
plans.
Offering to contract with all I/T/U
providers in a State would not create
an undue burden on a QHP. The total
number of I/T/U facilities is modest as
there is an average of just 14 I/T/U
facilities in each of the 34 States in
the contiguous United States that
have one or more Tribes.
In Alaska, there are a total of 207
health care facilities, but given the
size of the State this equates to an
average of less than 3 facilities for
every 10,000 square miles.
[Note: These figures count facilities.
There are multiple providers at most
I/T/U facilities.]
April 29, 2012
Issue; Section
of Federal Law
4. Nondiscrimination
against I/T/U
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
In the IHCIA, a provision was added in 2010 (section 408(a)(1)) that requires health insurance plans operating
under a Federal health care program (such as a QHP under the Affordable Care Act) to pay I/T/U for services
the I/T/U provides to covered AI/ANs.
IHCIA section 408 reads, in part –
IHCIA section
408
“A Federal health care program must accept an entity that is operated by [the I/T/U] as a provider eligible
to receive payment under the program for health care services furnished to an Indian on the same basis
as any other provider qualified to participate as a provider of health care services under the program if the
entity meets generally applicable State or other requirements for participation as a provider of health care
services under the program.” (emphasis added.)
The section 408 payment requirement 1) applies only for services provided by I/T/Us to AI/ANs and 2)
became effective as of March 23, 2010.
The position advocated by TTAG – that section 408 requires all QHPs to offer to contract with I/T/U – was
not agreed to by CMS in their Final Rule on QHP minimum requirements. In the Final Rule, the following was
included in the preamble—
“Comments: HHS received comments that section 408 of the Indian Health Care Improvement Act (IHCIA),
should be interpreted to obligate QHPs to include health programs operated by the IHS, Tribes, Tribal
organizations, and Urban Indian organizations as providers in their networks. Several commenters also
recommended that HHS clarify the applicability of section 206 of the ICHIA to QHPs. Response: The
primary purpose of section 408 of IHCIA is to deem Indian health providers as eligible to receive payment
from Federal Health Care Programs for health care services provided to Indians if certain standards are
met. Eligibility to receive payment under section 408 of IHCIA does not depend on in-network status with a
QHP. Section 206 of IHCIA provides that all Indian providers have the right to recover from third party
payers, including QHPs, up to the reasonable charges billed for providing health services, or, if higher, the
highest amount an insurer would pay to other providers to the extent that the patient or another provider
would be eligible for such recoveries. We believe that section 206 will foster network participation because
it benefits QHPs to contract with Indian health providers to establish the payment terms to which the
parties agree. Accordingly, we are not modifying the regulation text to reflect this comment.” [Fed. Reg.
18420]
Recommendation to State/Exchange;
Advocacy Points to Emphasize
As shown in item 2 above –
Require QHPs, as a condition of
participation in an Exchange, to offer
to contract with all I/T/U as innetwork providers in their health
plans.
Although CMS interpreted section
408 to require payment by QHPs to
I/T/U but not require QHPs to offer to
include I/T/U in their provider
networks, CMS indicated that, when
considered in combination with other
Indian-specific provisions applicable
to QHPs, QHPs would benefit from
contracting with I/T/U as in-network
providers.
If I/T/U providers are operating outof-network, more billed services, for
possibly redundant services, may be
provided to a QHP enrollee than if the
I/T/U were an in-network provider.
This may be primarily the result of
pre-authorization requirements a
QHP may impose to access innetwork specialty providers.
At a minimum, though, there is agreement that within the context of Exchanges and QHPs, IHCIA section 408
requires QHPs to pay I/T/U (for health care services to AI/AN) using the QHP’s “generally applicable payment
rate” for like providers and services.
Northwest Portland Area Indian Health Board
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April 29, 2012
Issue; Section
of Federal Law
5. Mandatory
payment to I/T
IHCIA section
206
6. Payment to
FQHCs
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
Under IHCIA section 206, an I/T (but not “U”) has the right to be paid by a QHP (as well as by any non-QHP
insurer, employee benefit or other third party payer) the reasonable charges billed by the I/T in providing
health services through the I/T, or, if higher, the highest amount the payer would pay for care and services
furnished by other providers (other than governmental entities.) This section also states that no law of any
State or provision of any contract shall prevent or hinder this right of recovery.
The section 206 payment requirement 1) applies for services provided to any covered person, not solely to
AI/AN, and 2) became effective as of March 23, 2010. In addition to a different (i.e., stronger) payment
formula, section 206 is one respect narrower in scope than section 408 (in that urban Indian organizations
are not included) but is broader in scope in that services to non-AI/ANs are to also be reimbursed. Section
206 also applies to payers not operating under a Federal health care program whereas section 408 applies
solely to payers under Federal health care programs (such as the Affordable Care Act, Medicare, Medicaid
and the FEHB program.)
RECOMMENDATION: Establish as a
requirement for QHP certification in
a State that the QHP acknowledge
the application of IHCIA sections 206
and 408 to the QHP. (See
recommendation under #12.
Enforcement below.)
QHPs are to pay FQHCs an amount not less than their Medicaid prospective payment system encounter rate.
Outstanding issue --
The Final Rule includes the following –
The FQHC payment provision refers to
the amount of payment “that would
have been paid to” the FQHC under
the FQHC’s Medicaid prospective
payment system (PPS) encounter
rate. Given that T/U outpatient and
community clinics do not typically get
paid under this payment mechanism
(but rather the IHS encounter rate),
does the Medicaid PPS rate payment
floor apply to T/Us?
ACA § 1302(g) reads –
ACA section
1302(g)
Recommendation to State/Exchange;
Advocacy Points to Emphasize
“PAYMENTS TO FEDERALLY-QUALIFIED HEALTH CENTERS.— If any item or service covered by a QHP is
provided by a Federally-qualified health center (as defined in section 1905(l)(2)(B) of the Social Security Act
(42 U.S.C. 1396d(l)(2)(B)) to an enrollee of the plan, the QHP shall pay to the FQHC for the item or service
an amount that is not less than the amount of payment that would have been paid to the center under
section 1902(bb) of such Act (42 U.S.C. 1396a(bb)) for such item or service.” (Emphasis added.)
To reconcile the general QHP payment provision for ECP shown above under Essential Community Provider
provisions (§ 156.235 of the Final Rule which allows a QHP to not contract with an ECP if the ECP does not
accept the “generally applicable payment rate” ) with this QHP payment provision for FQHCs (which requires
a QHP to pay an ECP, when applicable, the Medicaid PPS rate), CMS provided the following explanatory
statement in the preamble to the Final Rule -“We interpret these two provisions to mean that a QHP issuer must pay an FQHC the relevant Medicaid
PPS rate, or may pay a mutually agreed upon rate to the FQHC, provided that such rate is at least equal to
the QHP issuer’s generally applicable payment rate.” [Fed. Reg. 18422]
In the regulatory language issued under the Final Rule, CMS included the following -“(e) Payment of federally-qualified health centers. If an item or service covered by a QHP is provided by a
federally-qualified health center (as defined in section 1905(l)(2)(B) of the Act) to an enrollee of a QHP,
the QHP issuer must pay the federally-qualified health center for the item or service an amount that is
not less than the amount of payment that would have been paid to the center under section 1902(bb) of
Northwest Portland Area Indian Health Board
Page 5 of 11
April 29, 2012
Issue; Section
of Federal Law
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
Recommendation to State/Exchange;
Advocacy Points to Emphasize
the Act for such item or service. Nothing in this paragraph (e) would preclude a QHP issuer and federallyqualified health center from mutually agreeing upon payment rates other than those that would have
been paid to the center under section 1902(bb) of the Act, as long as such mutually agreed upon rates are
at least equal to the generally applicable payment rates of the issuer indicated in paragraph (d) of this
section.”
7. Reconciling
payment
requirements
regarding ECP
and FQHC
(§156.235(d)
and (e); § 1302
(g) and § 1311
(c)(2)) and
I/T/U (IHCIA §
408 and 206)
With several Federal provisions governing QHP payments to I/T/U, in the implementing regulations CMS
provided an interpretation to reconcile some of these provisions.
In the Final Rule, the following was included in the preamble—
“The Affordable Care Act, at section 1302(g), establishes payment of FQHCs at the applicable Medicaid PPS
rate. However, the Affordable Care Act also supports, at section 1311(c)(2), payment of essential
community providers, including FQHCs, at the QHP issuer’s generally applicable payment rate. We are
amending the regulation text in final § 156.235(e) to codify both sections 1302(g) and 1311(c)(2) of the
Affordable Care Act. We interpret these two provisions to mean that a QHP issuer must pay an FQHC the
relevant Medicaid PPS rate, or may pay a mutually agreed upon rate to the FQHC, provided that such
rate is at least equal to the QHP issuer’s generally applicable payment rate.” (Emphasis added.)
In the preamble to the Proposed Rule on Exchange Establishment, CMS requested comments on reconciling
the payment provisions under IHCIA section 206 with the FQHC provisions. In the Final Rule, CMS did not
include a discussion of reconciling the section 206 provision with the FQHC provision. However, CMS did
include the following in the preamble to the Final Rule –
“The primary purpose of section 408 of IHCIA is to deem Indian health providers as eligible to receive
payment from Federal Health Care Programs for health care services provided to Indians if certain
standards are met. Eligibility to receive payment under section 408 of IHCIA does not depend on innetwork status with a QHP. Section 206 of IHCIA provides that all Indian providers have the right to
recover from third party payers, including QHPs, up to the reasonable charges billed for providing health
services, or, if higher, the highest amount an insurer would pay to other providers to the extent that the
patient or another provider would be eligible for such recoveries.” [Fed. Red. 18420]
Taken a bit further than CMS, it would also appear that an I/T/U is able to pursue payment under any of the
applicable payment requirements, depending upon which is the more favorable, or none and pursue a
different, mutually agreed upon payment amount or mechanism with the QHP. Conversely, though, the QHP
is required to pay an I/T/U provider pursuant to the applicable Federal payment provision chosen by the
I/T/U.
Northwest Portland Area Indian Health Board
Page 6 of 11
April 29, 2012
Issue; Section
of Federal Law
8. Indian
Addendum
All applicable
Indian-specific
provisions (See
draft Indian
Addendum for
listing)
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
In comments submitted to CMS, TTAG recommended that each Exchange require QHPs to use an Indian
Addendum when contracting with I/T/U. CMS did not accept this recommendation in full, but according to
the Exchange Establishment Final Rule, CMS 1) plans to develop an Indian Addendum template and 2)
indicated in the preamble that an Exchange may direct QHPs to use the Indian Addendum when contracting
with I/T/U.
The Indian Addendum is a document listing the various provisions of Federal law that apply to Indian Health
Care Providers. (An Indian Addendum template has been drafted.) The purpose of the Indian Addendum is
to apply to the contracts between the QHPs and Indian Health Care Providers the special terms and
conditions necessitated by Federal law and regulations. To the extent that any provision of the QHP's
network provider agreement or any other addendum thereto is inconsistent with any provision of the
Indian Addendum for Indian Health Care Providers, the provisions of the Indian Addendum would
supersede all such inconsistent provisions.
In the Final Rule, the following was included in the preamble:
“We recognize that furnishing QHP issuers with a standard Indian Addendum to a provider contract may
make it easier for QHP issuers to contract with Indian providers. We note that QHP issuers may not be
aware of the various Federal authorities that govern contracting with Indian health providers, and such an
Addendum may lower the perceived barrier of contracting with Indian providers. We plan to develop a
template for contracting between QHP issuers and tribal health care providers. While we do not
uniformly mandate that QHP issuers use the template, we believe that QHP issuers will find it in their
interest to adopt such a template when contracting with Indian providers. We also note that Exchanges
may elect to direct QHP issuers to use the Indian Addendum when contracting with Indian providers.”
[Fed. Reg. 18423]
Recommendation to State/Exchange;
Advocacy Points to Emphasize
RECOMMENDATION: Require health
plans offered through an Exchange
to use the CMS-approved “Indian
Addendum” when contracting with
I/T/U providers to facilitate the
identification and implementation
of Indian-specific provisions of
Federal law.
CMS stated that an Exchange may
require all QHPs to use the Indian
Addendum when contracting with
I/T/U.
CMS stated the QHPs will find it in
their own interest to adopt the use of
the Indian Addendum.
The items contained in the Indian
Addendum are existing Federal
requirements, and apply whether the
Indian Addendum is used or not, but
simplifies and clarifies application of
these provisions to the QHP and the
I/T/U providers.
A similar “I/T/U Addendum” is being
used successfully by Medicare
Prescription Drug Plans contracting
with I/T/U pharmacies.
Northwest Portland Area Indian Health Board
Page 7 of 11
April 29, 2012
Issue; Section
of Federal Law
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
9. Additional
payments to
QHPs
Payment Adjustment for Higher-than-Average QHP Enrollee Health Needs
ACA § 1343: Each State shall provide a payment to a health plan in a State if the actuarial risk of the enrollees
of such plans is greater than the average actuarial risk of all enrollees in all plans and coverage in such State
for such year that are not self-insured group health plans.
ACA § 1343 and
§ 1402(d)(3)
Supplemental Payment to QHP for Indian-specific Cost-sharing Protections
ACA § 1402(d)(3): PAYMENT.—The Secretary shall pay to the issuer of a qualified health plan the amount
necessary to reflect the increase in actuarial value of the plan required by reason of this subsection. The
Indian-specific cost-sharing protections are 1) § 1402(d)(1) No cost-sharing for AI/AN with family income no
greater than 300 percent of the Federal poverty level who are enrolled in a QHP and 2) § 1402(d)(2) No costsharing for AI/AN when furnished services by a I/T/U providers. The QHP is to pay to the I/T/U the costsharing amount not paid by the AI/AN.
10. Tribal
consultation
An Exchange must consult on an ongoing basis with a list of stakeholders, including ”(f) Federally-recognized
Tribes, as defined in the Federally Recognized Indian Tribe List Act of 1994, 25 USC 479a, that are located
within such Exchange’s geographic area.” There is no Federal requirement, though, to fund technical
assistance provided by Tribes and tribal organizations to States.
ACA § 1311
(d)(6)
The Final Rule referred back to the Proposed Rule for a discussion on how Exchanges are to interact with
Tribes –
“Each Exchange that has one or more Federally-recognized tribes, as defined in the Federally Recognized
Indian Tribe List Act of 1994, 25 U.S.C. 479a, located within the Exchange’s geographic area must engage
in regular and meaningful consultation and collaboration with such tribes and their tribal officials on all
Exchange policies that have tribal implications. We encourage Exchanges to also seek input from all
tribal organizations and urban Indian organizations. While the Exchanges will be charged with the
consultation, tribal consultation is a government-to-government process, and therefore the State should
have a role in the process. We encourage States to develop a tribal consultation policy that is approved
by the State, the Exchange, and tribe(s). We anticipate providing additional guidance to both the tribes
and States on how the governments may collaborate and build a strong working relationship.”
Recommendation to State/Exchange;
Advocacy Points to Emphasize
These supplemental payments 1)
protect health plans that serve highneeds populations, which may include
some AI/AN populations, reducing the
incentives for health plans to attempt
to minimize enrollment of AI/AN in
their plans and 2) assist in ensuring
sufficient resources are available to
QHP that are serving high needs
populations.
As shown in item 1 above –
RECOMMENDATION: Implement and
monitor tribal consultation by the
State and its Exchange-designated
entities in the planning,
implementation and operation of
State Exchanges, including the
establishment of State-specific QHP
requirements, and ensure adequate
funding for the technical assistance
provided to the States and Exchanges
by AI/ANs and Tribal entities.
It was noted in the preamble to the Final Rule that “future guidance will be provided to States regarding key
milestones, including tribal consultation, for approval of a State-based Exchange.” [Fed. Reg. 18320] In the
preamble to the Final Rule, the following was included –
“Section 1311(d)(6) of the Affordable Care Act directs the Exchange to carry out consultation with
stakeholders, and §155.130(f) codifies this provision with respect to Federally-recognized Tribes. We note
that Exchange tribal consultation reflects a government-to-government relationship, as Exchanges would
conduct consultation on behalf of States. Future guidance will be provided to States regarding key
milestones, including tribal consultation, for approval of a State-based Exchange. Because of the
Northwest Portland Area Indian Health Board
Page 8 of 11
April 29, 2012
Issue; Section
of Federal Law
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
Recommendation to State/Exchange;
Advocacy Points to Emphasize
government-to-government nature of tribal consultation, we did not include a provision similar to section
5006(e) of the American Recovery and Reinvestment Act in the proposed rule or in this final rule, and did
not expand the tribal consultation standard to include tribal organizations, programs, or commissions. In
the final rule, Exchanges must consult with Federally-recognized Tribes; however, this does not preclude
Exchanges from engaging in discussions or consulting with tribal and Urban Indian organizations. It should
be noted that when a tribal or Urban Indian organization is a stakeholder as defined in §155.130 - for
example, the tribal or Urban Indian organization is a health care provider - then consultation may be
necessary. We therefore encourage States to consult with tribal and Urban Indian organizations.”
With regard to requiring an Exchange to provide funding to Tribes and tribal organizations to support
consultation between the State/Exchange and Tribes, the following was included in the preamble to the Final
Rule –
“We did not accept the suggestion for Exchanges to obligate State grant funding for technical assistance
provided by tribal entities to States and Exchanges. We believe that the concern regarding Exchange
inclusion of American Indians and Alaska Natives in policy development is addressed in the final rule and
the Exchange Establishment Grant, which directs Exchanges to consult with Federally-recognized Tribes.”
[Fed. Reg. 18321]
11. Cultural
competency
There are no explicit requirements in the ACA or the implementing regulations that require cultural
competency of available providers.
Under the Navigator program, in which outreach is conducted to educate potential enrollees of the functions
and potential benefits of the Exchange-related programs, information is to be “in a manner that is culturally
and linguistically appropriate.”
§ 155.210 Navigator program standards. (g) Duties of a Navigator… (5) Provide information in a manner
that is culturally and linguistically appropriate to the needs of the population being served by the
Exchange, including individuals with limited English proficiency… (Fed Reg. 18448]
12. Enforcement
Preamble to Final Rule: “The Exchange is generally responsible for monitoring ongoing QHP compliance with
certification standards. There are existing and variable mechanisms for monitoring health plan performance;
therefore, we believe Exchanges are best positioned to develop a process and infrastructure for monitoring
QHP performance in the Exchange. This could include coordination with State departments of insurance,
reviews of health plan performance, and other approaches. We note that the final rule gives Exchanges the
express authority to decertify a QHP at any time for non-compliance with certification standards, including
the discretion to establish sanctions for noncompliance.” [77 Fed. Reg. 18406]
‘‘SEC. 206. REIMBURSEMENT FROM CERTAIN THIRD PARTIES OF COSTS OF HEALTH SERVICES.
‘‘(a) RIGHT OF RECOVERY.—Except as provided in subsection (f), the United States, an Indian tribe, or tribal
Northwest Portland Area Indian Health Board
Page 9 of 11
RECOMMENDATION: Require QHPs
to comply with IHCIA § § 206 and
408 as a condition of receiving QHP
certification.
If an Exchange establishes compliance
with section 408 and section 206 as a
condition of certification and/or
recertification as a QHP, then the
Exchange would also become an
enforcement vehicle for these
April 29, 2012
Issue; Section
of Federal Law
Federal Law and/or Regulation; Required Action
– Qualified Health Plans and Indian Health Care Providers –
Recommendation to State/Exchange;
Advocacy Points to Emphasize
organization shall have the right to recover from …”
provisions.
… ‘‘(c) NONAPPLICABILITY OF OTHER LAWS.—No law of any State, or of any political subdivision of a State
and no provision of any contract, insurance or health maintenance organization policy, employee benefit
plan, self-insurance plan, managed care plan, or other health care plan or program entered into or renewed
after the date of enactment of the Indian Health Care Amendments of 1988, shall prevent or hinder the right
of recovery of the United States, an Indian tribe, or tribal organization under subsection (a).”
For instance, under section 45 CFR §
155.1080 of the Final Rule an
Exchange is given the authority to
decertify a QHP at any time for failure
to comply with certification
standards, including, for instance,
standards related to marketing.
‘‘(d) NO EFFECT ON PRIVATE RIGHTS OF ACTION.— No action taken by the United States, an Indian tribe, or
tribal organization to enforce the right of recovery provided under this section shall operate to deny to the
injured person the recovery for that portion of the person’s damage not covered hereunder.”
‘‘(e) ENFORCEMENT.— ‘‘(1) IN GENERAL.—The United States, an Indian tribe, or tribal organization may
enforce the right of recovery provided under subsection (a) by— ‘‘(A) intervening or joining in any civil action
or proceeding brought— ‘‘(i) by the individual for whom health services were provided by the Secretary, an
Indian tribe, or tribal organization; or ‘‘(ii) by any representative or heirs of such individual, or ‘‘(B) instituting
a separate civil action, including a civil action for injunctive relief and other relief and including, with respect
to a political subdivision or local governmental entity of a State, such an action against an official thereof.
Pertaining to IHCIA section 408(a), section(c) states: ““For provisions related to nondiscrimination against
providers operated by the Service, an Indian tribe, tribal organization, or urban Indian organization, see
section 1139(c) of the Social Security Act (42 U.S.C. 1320b–9(c)).’’.
Glossary:
ACA or Affordable Care Act: Refers collectively to the Patient Protection and Affordable Care Act (Pub.L. 111-148) as amended by the Health Care and Education
Reconciliation Act of 2010 (Pub. L. 111-152), and referred to herein as the Affordable Care Act or ACA. Section 36B, contained in section 1401 of the ACA, was
subsequently amended by the Medicare and Medicaid Extenders Act of 2010 (Pub. L. 111-309), the Comprehensive 1099 Taxpayer Protection and Repayment of
Exchange Subsidy Overpayments Act of 2011 (Pub. L. 112-9), and the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Pub. L. 112-10).
AI/ANs: American Indian and Alaska Natives.
CFR: Code of the Federal Regulations.
CMS: Centers for Medicare and Medicaid Services, Department of Health and Human Services
ECP: Essential Community Provider as established under ACA § 1311 and further defined at 77 Fed. Reg. , No. 59, § 156.235.
Exchange: An American Health Benefit Exchange established pursuant to section 1311 of the Affordable Care Act; referred to as Affordable Insurance Exchanges
by CMS.
FEHB Program: Federal Employees Health Benefits Program.
Northwest Portland Area Indian Health Board
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April 29, 2012
Final Rule: Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange Standards for Employers; Federal
Register, Vol. 77, No. 59, Tuesday, March 27, 2012.
HHS: Department of Health and Human Services, U.S. Government
IHCIA: Indian Health Care Improvement Act, as amended and permanently reauthorized by the Indian Health Care Improvement Reauthorization and Extension
Act of 2009, S. 1790, as reported by the U.S. Senate Committee on Indian Affairs, enacted on March 23, 2010 as part of the Affordable Care Act.
Indian Addendum: A comprehensive listing of the Federal laws and regulations affecting Indian Health Care Providers can be found in the draft Indian
Addendum proposed by NIHB and the Tribal Technical Advisory Group to CMS (TTAG) to be used by Exchange plans when contracting with Indian Health Care
Providers. (Refer to the letter and the attached draft Indian Addendum from TTAG to Dr. Donald Berwick dated April 13, 2011 titled “Indian Addendum for ACA
Exchange Plan Provider Network Contracts”.) Also, see the discussion by CMS on the value of QHPs and I/T/us using an Indian Addendum on page 18423 of the
Final Rule.
Indian Health Care Provider: The term "Indian Health Care Provider" means the Indian Health Service (IHS), an Indian Tribe, tribal organization or urban Indian
organization, and is sometimes referred to collectively as “I/T/U”. The term "Indian Health Service" means the agency of that name within the U.S. Department
of Health and Human Services established by Sec. 601 of the Indian Health Care Improvement Act (IHCIA), 25 USC §1661. The term "Indian tribe" has the
meaning given that term in Sec. 4 of the IHCIA, 25 USC §1603. The term "tribal organization" has the meaning given that term in Sec. 4 of the IHCIA, 25 USC
§1603. The term "urban Indian organization" has the meaning given that term in Sec. 4 of the "IHCIA", 25 USC §1603.
I/T/U: Indian Health Service, Indian Tribe, tribal organization, and urban Indian organization.
OPM: Office of Personnel Management, U.S. Government.
Proposed Rule: Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans, Federal Register, Vol. 76, No. 136, Friday,
July 15, 2011.
Qualified Health Plan or QHP: Health plans that are to be offered through an Exchange that are certified to meet Federal standards.
TTAG: The Tribal Technical Advisory Group to CMS. Sec. 5006(e) of the American Recovery and Reinvestment Act codified in statute, at sections 1902(a)(73) and
2107(e)(1)(C) of the Social Security Act, the requirement for the Secretary of Health and Human Services to maintain a Tribal Technical Advisory Group within
CMS and the requirement that States seek advice from Tribes on a regular and ongoing basis where one or more Indian health program or urban Indian
organization furnishes health care services.
Northwest Portland Area Indian Health Board
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April 29, 2012