A Survey of Indian Health Provisions in Patient Protection a Affordable Care Act

1. A Survey of • Indian Health Provisions in • Patient Protection a Affordable Care Act • (Pub.L. 111-148; enacted March 23, 2010) • Carol L. Barbero • Hobbs, Straus, Dean & Walker, LLP • <cbarbero@hobbssstraus.com> • May, 2010

2. Enhanced Access to Health Insurance • Expectation: Some 30 million uninsured Americans will gain access to some form of health insurance coverage • Medicare, Medicaid, CHIP, private insurance • Indian Health Impact: • More Indians will be able to acquire coverage • Acquire on their own; purchase by tribe; purchase with ISDEAA funds • Opportunity for Indian health programs to increase third-party collections

3. Medicaid Expansion • 2010: States allowed (not required) to expand Medicaid to persons up to 133% FPL • Regular FMAP applies to expansion • 2014: All Medicaid programs required to cover persons at/below 133% FPL • Will provide coverage for non-elderly, non-disabled, non-pregnant childless adults who are not currently covered by Medicaid • 100% FMAP for expansion population • Impact: More Indian people will qualify for Medicaid coverage

4. Insurance Exchanges; Subsidies • “Exchange” = marketplace for information on health insurance products offering acceptable coverage • Operated by each state (or HHS Secretary) • Up and running Jan. 1, 2014 • No government-run “public option” • Exchange products available to uninsured individuals and small businesses • Premium subsidies on sliding scale for individuals up to 400% of FPL

5. Indian-specific Exchange features • Indian individuals are eligible to purchase coverage through Exchange • Monthly “window” for Indian enrollment in Exchange insurance plan • No cost-sharing for Indians up to 300% FPL • No Indian patient may be assessed cost sharing for services provided by I/T/U or CHS provider • HHS pays the cost of Indian cost-sharing protections

6. “Express Lane Agencies” • Public agencies that determine eligibility for income-based programs • E.g., Temporary Assistance for Needy Families (TANF) • States allowed (but not required) to rely on Express Lane Agency eligibility determinations for Medicaid, CHIP • Facilitate enrollment of kids in Medicaid, CHIP • IHS, tribes, tribal organizations, urban Indian organizations now have Express Lane Agency status • Effective March 23, 2010

7. Persons with Pre-Existing Conditions • Temporary program beginning in 2010 • Make insurance coverage available to individuals – • Uninsured for 6 months or longer and • Who have pre-existing conditions • Ends in 2014 when the law’s consumer protections become effective • In Fall 2010, insurers ill be prohibited from denying coverage to kinds with pre-existing conditions

8. Individual Coverage Mandate • Objective: require all Americans to acquire some form of health insurance • Medicare, Medicaid, CHIP, private insurance • Enforced through tax penalties • Members of Federally-recognized Indian tribes are exempt from penalties • Individual Mandate requirement is being challenged in court by opponents

9. Tribally-provided Health Care Benefits • New law excludes value of health insurance and services provided to a tribal member by IHS or tribe from individual member’s gross income • Exclusion was high priority for Indian Country • IRS had said tribally-provided health insurance was taxable to individual tribal member • Effective March 23, 2010 • “No inference” on whether such benefits provided prior to enactment are or are not excluded from member’s gross income

10. Indian Medicare Changes • Medicare Part B: Permanent authority for IHS, tribal programs to collect for all Part B services • Authority to collect for some Part B services expired Dec. 31, 2009 • Effective retroactively to Jan. 1, 2010 • Medicare Part D: Value of drugs dispensed by I/T/U pharmacy will count as if Indian patient paid for them • Corrects problem in original Medicare Part D law • Will enhance opportunities for I/T/U pharmacies to bill Part D drug plans • Effective Jan. 1, 2011

11. Payer of Last Resort • Puts in the law IHS’s regulation making IHS, tribal programs the payer of last resort • Impact: Any other insurance coverage carried by Indian patient is required to pay first • POLR rule now applicable to urban Indian organizations • Maximizes authority to collect third-party revenues • Medicare, Medicaid, CHIP, private insurance

12. Maternal + Child Home Visitation Program • New program for home visits to families with young children + expecting children who are at risk of poor maternal and child health • Federally-funded through grants to states • Funds already appropriated for 2010-2014 • Tribes, tribal organizations, urban Indian organizations are eligible grantees • 3% of funds set-aside for Indian grants • Value of set-aside: $45 million over 5 years

13. Health Disparities Data Collection • HHS to collect data from Federal health programs by – • Race, ethnicity • Sex • Primary language • Disability status • Purpose: Monitor health disparity trends • Data will be collected from IHS programs • Tribal Epidemiology Centers are to be provided with health disparities analyses performed through this effort

14. Health Workforce Development • About ½ of the new law is devoted to health workforce development programs • Expansion of health workforce is vital to meet increased demand for care as more Americans acquire insurance coverage • IHS, tribes, tribal organizations, tribal public health agencies, urban Indian organizations eligible for many new programs • Most new programs will require appropriations • Watch for grant announcements