September 28, 2011 Doneg McDonough Technical Advisor to the National Indian Health Board

1. Health Reform Implementation-- Federal Regulations --Presentation to theNIHB Annual Consumer Conference September 28, 2011 Doneg McDonough Technical Advisor to the National Indian Health Board (DMcDonough@NIHB.org)

2. Acronyms • AI/AN: American Indian and Alaska Native • I/T/U: Indian Health Service (IHS), Tribe and tribal organization, and urban Indian organization • HHS: Federal Department of Health and Human Services • CMS: Center for Medicare and Medicaid Services, HHS • CCIIO: Center for Consumer Information and Insurance Oversight at CMS • IRS: Internal Revenue Service, Department of Treasury • IHCIA: Indian Health Care Improvement Act • ACA: Patient Protection and Affordable Care Act, including reconciliation act modifications(Pub. L. 111-148 and Pub. L. 111-152)

3. Update on NIHB regulation work • At the moment -- health reform = issuance of Federal regulations • From HHS, CMS, CCIIO, IHS, IRS • In reviewing and commenting on these Federal regulations, a primary focus is to ensure that American Indians and Alaska Natives will have timely access to a full range of needed health care services from the AI/AN’s providers of choice.

4. Our Pitch / Framework for Comments • Federal Trust Responsibility • Federal government has a unique obligation to AI/AN • There is a unique relationship between the Federal government and Tribes • In the ACA, Congress added a new mechanism to carry out the Federal Trust Responsibility • In addition to Indian health programs (I/T/U providers) supported by direct appropriations • In addition to Medicare, Medicaid and CHIP • ACA created subsidized insurance through Exchanges

5. Our Pitch / Framework for Comments • The Federal government as well as AI/AN and Tribes benefit if the Exchange plans provide a real option for AI/AN • Potential to bring additional resources for health care services to tribal communities… thereby furthering Trust Responsibility • Potential to lessen demands on Federal appropriation to IHS • Potential to expand health care services readily available to AI/AN • Opportunity to access full AI/AN cost-sharing protections and general premium assistance if enroll through Exchange • But AI/AN need to know that they can access their providers of choice if they enroll in an Exchange plan

6. Our Pitch / Framework (continued) • There is tension in two elements of implementation • Obama Administration’s desire to provide maximum flexibility to States in implementing health reform • For Indian-specific provisions, efficient and effective implementation requires standardization • To carry-out the Congressional intent in the ACA, we need CMS to direct States on a limited set of issues, such as -- • Require Exchange plans to offer to contract with I/T/U • Require Exchange plans to use Indian Addendum

7. Our Pitch / Framework (continued) • Two general provisions in the ACA support our request that Exchange plans be required to offer to includeI/T/U providers in Exchange plan networks • ACA section 1311(c)(1)(B): Network adequacy (“ensure a sufficient choice of providers”) • ACA section 1311(c)(1)(C): Essential community providers (“providers that serve predominantly low-income, medically-underserved individuals”)

8. Our Pitch / Framework (continued) • Two Indian-specific provisions in the IHCIA (and ACA) support our request that Exchange plans be required to offer to include I/T/U providers in Exchange plan networks • IHCIA section 206: Established a “right of recovery” for services rendered by I/T/U to AI/AN • IHCIA section 408: Established that “a Federal health care program must accept an [I/T/U] as a provider eligible to receive payment under the program for health care services furnished to [AI/AN]…

9. Our Pitch / Framework (continued) • Taken together, these provisions – • Establish a requirement (most directly through IHCIA section 408) that Exchange plans offer to contract with I/T/U • The requirement to “offer to contract” does not dictate the rate at which I/T/U are to be paid • Section 408 establishes a floor of “payment… on the same basis as any other provider…” • Section 206 provides leverage in rate negotiations with Exchange and other health plans that if an I/T/U is not included in-network, the I/T/U can later demand payment at the higher of (a) the I/T/U’s reasonable charges billed or (b) the highest rates paid to other providers

10. Our Pitch / Framework (finale) • Since Congress enacted provisions establishing that I/T/U have a right to participate in Exchange plan networks and to bill Exchange plans (whether in-network or not) • And, since there are a range of Indian-specific provisions in various Federal laws that Exchange plans are obligated to adhere to • It is in the interest of the Federal government (and AI/AN) to -- • Require Exchange plans to offer to contract with I/T/U • Require the use of a standard Indian Addendum to the Exchange contracts

11. NIHB Regulatory Work • Twice a month, NIHB updates a report titled NIHB Regulation Review and Impact Analysis Report (RRIAR) • The purpose of the RRIAR is to identify and summarize key regulations issued by CMS pertaining to Medicare, Medicaid, CHIP, and health reform that affect – • (a) American Indians and Alaska Natives and/or • (b) Indian Health Service, Indian Tribe and tribal organization, and urban Indian organization providers. • The RRIAR includes a summary of regulatory analyses prepared by NIHB and indicates the extent to which the recommendations made by NIHB were incorporated into any subsequent CMS actions. • The analyses and recommendations include those made by NIHB, by the Tribal Technical Advisory Group to CMS (TTAG), and in some instances by individual Tribes. • The RRIAR consists of three tables – • Table A provides a status report on the RRIAR itself, listing the regulations included in the RRIAR to date, and the components of the analysis provided under each. • Table B lists key regulations issued by CMS, due dates for comments, a synopsis of the CMS action, and a summary of the analysis, if any, prepared by NIHB. • Table C identifies the recommendations made by NIHB pertaining to each regulation, if any, and evaluates the extent to which the recommendations made by NIHB were incorporated into subsequent CMS actions.

12. Numerous regulations under review

13. Value of AI/AN Cost-Sharing Protection (HHS Indian Offset) • Value of premium and cost-sharing assistance in an Exchange

14. Key Issues: (Tribal) employer responsibility For larger employers subject to employer requirements under ACA (50+ FTE) – • Employers offering coverage pay into Exchange if • Plan does not cover 60% of expected costs (60% actuarial value), or • Employee’s share of premium is more than 9.5% of income and • Employee enrolls in plan through an Exchange • Employer pays $3,000 per employee enrolling through Exchange • Employers not offering coverage • Pay $2,000 to Exchange for every full-time employee beyond the first 30

15. Key Issues: Premiums and cost-sharing • Employees can leave employer coverage if “unaffordable”

16. Key Issues: Premiums and cost-sharing • For coverage through an Exchange – • All plans must offer “essential benefits package” that is defined by Secretary • The plans offered in an Exchange vary by their actuarial value (i.e., the average share of health care costs that are paid by the plan) • Bronze (60% actuarial value) • Silver (70% actuarial value) • Gold (80% actuarial value) • Platinum (90% actuarial value)

17. Key Issues: Premiums and cost-sharing

18. Key Issues: Premiums and cost-sharing Enrollee premium protections (annual)

19. Key Issues: Premiums and cost-sharing • Enrollee cost-sharing protections (annual)