Sonosky, Chambers, Sachse,
Endreson & Perry, LLP
Qualified Health Plans and Insurer Payments in the
Patient Protection and Affordable Care Act:
Policy Issues Facing Tribal Health Programs
A Presentation for the 2015 California Indian Health Conference
Sam Ennis, J.D.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
sennis@sonoskysd.com
July 8, 2015
Washington, DC
Juneau, AK
Anchorage, AK
Albuquerque, NM
San Diego, CA
Indian Cost-Sharing Reductions
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 2
Cost-Sharing Reductions - Generally
• Two American Indian and Alaska Native (AI/AN)-specific cost-sharing
reductions (CSRs) for Affordable Care Act (ACA) Marketplace plans.
•
For purposes of rule, “cost-sharing” includes copayments, coinsurance, deductibles,
and similar charges, but does not include premium costs.
• Qualified health plan (QHP) issuers in ACA Marketplaces must offer
variations of their QHPs that incorporate the reductions.
•
•
Reductions are only available to enrollees in Marketplace plans.
QHP issuer cannot withhold CSR amounts from payment to provider, but rather will be
reimbursed those amounts by the federal government.
• Reductions are only available to “Indians” as defined in the ACA:
•
•
Members of federally-recognized Indian Tribes and Alaska Native Villages.
Alaska Native Claims Settlement Act (ANCSA) corporation shareholders.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 3
Zero Cost-Sharing Variation
• The “zero cost-sharing” plan variation is available to AI/ANs who (1)
have a household income between 100% and 300% of the federal
poverty level and (2) qualify for premium tax credits in an ACA
Marketplace.
• Enrollee does not pay any cost-sharing whatsoever when receiving
a service deemed to be an “essential health benefit” under the
plan.
• This is true regardless of where the individual received the service.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 4
Limited Cost-Sharing Variation
• The “limited cost-sharing” plan variation applies to any AI/AN who does
not qualify for a zero cost-sharing variation due to income level or
ineligibility for tax credits.
•
Eligibility applies based solely on AI/AN status, not income.
• Enrollee does not pay any cost-sharing whatsoever when receiving a
service deemed to be an “essential health benefit” under the plan so long
as the service was provided:
•
•
By the Indian Health Service, a Tribal health program, or an Urban Indian Organization
(I/T/U); or
By a non-I/T/U provider through purchased/referred care (formerly contract health
services).
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 5
AI/AN Cost-Sharing - Difficulties
• The Centers for Medicare and Medicaid Services (CMS) and Center
for Consumer Information and Insurance Oversight (CCIIO) have
issued inconsistent interpretations of CSR rules:
• Stating that there are income-based requirements for limited cost-sharing
variation plan eligibility, or that eligibility is tied to tax credit eligibility.
• Stating that zero-cost sharing variations are available to any Indian under 300%
of poverty, not between 100-300% of poverty.
• Concern that some QHP issuers and Marketplaces might be
implementing eligibility for the Indian-specific CSRs in accordance
with inaccurate federal guidance.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 6
AI/AN Cost-Sharing – Specific Complaints
• CMS issued Bulletin saying that AI/ANs with household income under
100% FPL or over 400% FPL are not eligible for either zero or limited CSR
plans, but rather “will not have out of pocket cost for services provided by
Indian health programs.”
• In federally-facilitated Marketplaces (such as Idaho, Oregon), eligibility
determination letters for limited cost-sharing plans contains confusing
language concerning scope of CSRs and failing to identify plan type.
• QHP issuers improperly deduct CSR amounts from payment to providers.
• QHP issuers fail to properly apply CSRs to eligible AI/ANs (primarily
limited cost-sharing variation).
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 7
QHPs: Network Adequacy
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 8
QHPs – Network Adequacy
• ACA require QHP issuers to 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.”
• “Essential community providers” (ECPs) are providers “that serve
predominantly low-income, medically underserved individuals,” and include,
but are not limited to, safety net providers that are eligible to participate in the
340B Drug Pricing Program in these categories: Federally Qualified Health
Centers (FQHCs), Ryan White providers, family planning providers, I/T/Us, and
various specified hospitals.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 9
Network Adequacy – General Standards
• CMS/CCIIO requirements only apply to federally-facilitated
Marketplaces (FFMs).
• Network adequacy standards in state-based Marketplaces (SBMs) are
determined by the State.
• General requirements for FFM network adequacy include:
• Network has sufficient numbers 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.
• QHP makes its provider directory available to the Marketplace for publication
online and to potential enrollees in hard copy upon request, and in it identifies
network providers that are not taking new patients.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 10
Network Adequacy – Tribal Health Programs
• CMS/CCIIO issue an annual “Issuer Letter” that details additional
requirements for meeting FFM network adequacy requirements, including:
•
•
•
•
Offer contracts to all Indian health providers in the QHP’s geographic area;
Offers “good faith” contracts, meaning that the terms, including payment rates, represent
what a similarly-situated, non-ECP provider would accept or already has accepted;
Offer contracts “using the recommended model QHP Addendum for [Indian health care
programs] developed by CMS,” aka the “Indian addendum” that outlines special legal rights
of Tribal providers;
Ensure that at least 30% of ECPs in each QHP’s service area are included in the provider
network.
• Failure to comply requires written narrative justification that the network (1)
established provides an adequate level of service for low-income and
medically underserved enrollees and (2) satisfied the good faith contract offer
requirement with Tribal health programs.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 11
Network Adequacy – Ongoing Issues
• Lack of Tribal-specific protections at the State level lead to inadequate I/T/U
network status in SBMs.
•
For example, Nevada does not require issuers to contract with I/T/Us or offer the Indian
addendum, and there have been no QHP contract offers to any Nevada I/T/U.
• Numerous QHPs certified as having adequate networks despite little to no
I/T/U presence.
•
Unsure how federal government is enforcing network adequacy requirements, including
provider narrative justification.
• Several QHPs have offered in-network status to I/T/U providers on
unfavorable terms.
•
Unsure how federal government is enforcing “good faith” contract offer requirements.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 12
Tribal Right of Recovery Under
Section 206
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 13
Section 206 - Generally
• Section 206 of the Indian Health Care Improvement Act (25 U.S.C. 1621e)
gives Tribal health programs the right to recover “from an insurance
company, health maintenance organization, employee benefit plan, thirdparty tortfeasor, or any other responsible or liable third party (including a
political subdivision or local governmental entity of a State),” either:
• The program’s “reasonable charges billed,” or;
•
If higher than the provider’s reasonable charges, “the highest amount the third party
would pay for care and services furnished by providers other than governmental
entities, to any individual to the same extent that such individual, or any
nongovernmental provider of such services, would be eligible to receive damages,
reimbursement, or indemnification for such charges or expenses if such services had
been provided by a nongovernmental provider; and such individual had been required
to pay such charges or expenses and did pay such charges or expenses.”
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 14
Section 206 – Premera Litigation
• In May 2012, the Alaska Native Tribal Health Consortium (ANTHC) sued
Premera Blue Cross Blue Shield (Premera) in federal district court in
Alaska seeking to recover under Section 206.
• ANTHC and Premera had a contract that ANTHC terminated in 2011 after
Premera unilaterally amended the contract in its own favor.
• Premera’s subsequent payments to ANTHC were anywhere from 0%-60% of its
billed charges.
• ANTHC sued to recover pursuant to Section 206.
• Case is currently still active after four rounds of summary judgment,
numerous evidentiary challenges, and multiple failed settlement
negotiations.
•
Parties are currently putting together a judicial settlement conference for the fall of
2015 per the judge’s request.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 15
Premera – Rulings Thus Far
• Judge has made the following rulings re: Section 206:
• Section 206 right of recovery does not apply if the provider and payor have an
active contract.
• “Highest amount paid” clause refers to geographic area in which provider
operates, not the entirety of insurer’s nationwide network.
• “Reasonable charges” clause and “highest amount paid” clause represent
separate rights of recovery (in Alaska, latter clause determined according to
state regulation setting out minimum payments to non-contracted providers).
• “Reasonable charges” not limited to what insurer would reimburse individual
patient (i.e., this is not a subrogation clause).
• Insurer cannot deduct cost-sharing (copays, deductibles, coinsurance) from
amounts paid under “reasonable charges” clause, but might be allowed to do
so under the “highest amount paid” clause.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 16
Premera – Ongoing Disputes
• What constitutes a “reasonable” billed charge?
• ANTHC argues that reasonableness is determined by comparison of billed
charges among provider’s peer group.
• Premera argues that reasonableness is determined by comparing payments
made by insurers to providers (i.e., insurers alone decide what is
“reasonable”).
• When evaluating insurer payment rates, what charges to include?
• ANTHC says you only examine charges from non-contracted payors since
Section 206 does not apply when you have a contract.
• Premera says you must examine all charges, both contracted and noncontracted.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 17
Section 206 – What are “Reasonable Charges”?
• Judge held the following factors are relevant to reasonableness:
•
•
•
•
An analysis of the relevant market for hospital services;
The hospital’s internal cost structure;
The nature of the services provided;
The average payment the provider would have accepted as full payment from
third-parties;
• The usual and customary rate the hospital charges; and
• The price an average patient would agree to pay for the service at issue.
•
Judge acknowledged that latter two factors are less applicable in I/T/U context because AI/AN
patients are not billed and do not pay for services.
• Judge further noted that these factors must be established by
expert testimony (unclear exactly how to do so).
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 18
Section 206 – Lessons Learned
• Be satisfied with your contract!
•
Contract terms trump Section 206 (at least in Alaska…).
• For non-contracted payors, understand your payments.
•
Payors cannot apply “allowed amounts” or other cost-sharing deductions to your “reasonable
billed charges” when paying you under Section 206.
• Don’t be afraid to press your rights…
•
Many insurers are unaware of Section 206 or do not understand how it works. Upon being given
an explanation several insurers have changed their payment policies in accordance with the law.
• …but recognize the risk in doing so.
•
Some insurers have already issued letters to I/T/U indicating they will immediately comply with
Section 206. Premera has litigated the issue for over three years. Be prepared for the latter.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 19
Presenter
Sam Ennis is an associate in the San Diego office of Sonosky, Chambers, Sachse, Endreson
& Perry LLP, which specializes in representing Tribal interests throughout the United
States. Mr. Ennis works in all areas of the firm's practice, with a focus on health law and
Tribal self-governance. Mr. Ennis graduated with honors from the University of Virginia,
and then from the UCLA School of Law, where he was Chief Comments Editor of the UCLA
Law Review, interned at the United States Commission on Civil Rights, and participated in
the UCLA Tribal Legal Development Clinic.
Mr. Ennis is a member of the National Indian Health Board Medicare & Medicaid Policy
Committee and has worked in conjunction with the Centers for Medicare and Medicaid
Services Tribal Technical Advisory Group. He also serves as a consultant to the National
Indian Health Board with regard to training on and implementation of the Affordable
Care Act and Indian Health Care Improvement Act. He has authored numerous published
articles on various aspects of Federal Indian law.
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
CRIHB/NPAIHB, July 8, 2015
Affordable Care Act Overview
Slide 20