Northwest Portland Area Indian Health Board

Draft April 29, 2011

Qualified Health Plans and Indian Health Programs:

Exchange Plans Contracting with the Indian Health Service, Tribal and Urban Indian Health Programs as In-Network Providers

Summary

Enacted on March 10, 2010, the Affordable Care Act (or ACA)1, inclusive of the expansion and permanent reauthorization of the Indian Health Care Improvement Act (IHCIA)2, included provisions governing payment by Qualified Health Plans (QHPs)3 to certain Indian Health Care Providers.4, 5 These provisions include IHCIA §§ 206 and 408, as well as ACA § 1311 pertaining to Essential Community Providers. A final rule was issued by the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services, on March 27, 2012 regarding the establishment of Exchanges6 and the standards for QHPs (Final Rule). If fully implemented and enforced, the QHP standards and the Indian-specific payment provisions, as well as the Exchange-facilitated affordability provisions,7 will likely result in expanded access to health care services for American Indian and Alaska Natives (AI/ANs) and increased revenues to Indian Health Care Providers.

Application of Key Payment Provisions

The Indian-specific payment provisions in the ACA and IHICA provide broad protections for the Indian Health Service (IHS), tribal health, and urban Indian health organizations that comprise Indian Health Care Providers, and are sometimes referred to as I/T/Us.

Indian Health Care Providers have the right to be paid by all QHPs offered through an Exchange for services furnished to AI/ANs at a rate at least equal to the QHP’s generally applicable payment rate for in-network providers.8 Payment does not depend on the Indian Health Care Provider having in-network status with a payer.

Because of these special payment provisions, Indian Health Care Providers would seem to have less of an incentive to become in-network providers as might some other providers. But the benefits of in-network status are substantial for AI/AN patient and providers alike and would likely lead to 1) greater coordination and timeliness of care to AI/AN9 and 2) more certainty and timeliness of payment to Indian Health Care Providers. For QHPs as well, including I/T/Us as in- network providers provides advantages as well, such as a potential reduction in the overall volume of billed services to the QHP.10 In addition, the use of a standardized Indian Addendum11 when QHPs contract with Indian Health Care Providers will facilitate the understanding and application of a host of applicable Indian-specific Federal laws.

As shown in Table A below, tribal health and urban Indian organizations are recommending that each State and/or Exchange12 adopt a set of recommendations that will facilitate QHPs

Northwest Portland Area Indian Health Board Page 1 of 9 Draft April 29, 2011

contracting with Indian Health Care Providers and thereby improve the coordination, timeliness and efficiency of health care services available to AI/ANs insured through an Exchange.

TABLE A: RECOMMENDATIONS – Qualified Health Plans and Indian Health Care Providers – Recommendations to State/Exchange by Tribal Health and Urban Indian Programs Provision of Recommended Action Issue Federal Law Require QHPs, as a condition of participation in an Exchange, Network to offer to contract with all I/T/U as in-network providers in 1. ACA § 1311(c)(1)(B) adequacy their health plans (sometimes referred to as an “any willing [I/T/U] provider” provision.) Contracting Numerous Indian- Require QHPs to use the CMS-approved “Indian Addendum” with I/T/Us: use specific provisions in when contracting with I/T/U providers to facilitate the 2. of an Indian Federal law. (See identification and implementation of Indian-specific provisions Addendum Indian Addendum.) of Federal law. Enforcement of Require QHPs, as an explicit condition for certification (and IHCIA § 206 and § 3. Indian-specific recertification) for being a QHP, to comply with Indian-specific 408 provisions provisions such as IHCIA §§ 206 and 408. Implement and monitor tribal consultation by the State and its Exchange-designated entities in the planning, implementation 4 Tribal and operation of State Exchanges, including the establishment ACA § 1311(d)(6) . Consultation 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.

Payment to I/T/Us

Section 408(a) was added to the IHCIA in 2010 and requires health insurance plans operating under a Federal health care program13 (such as a QHP under the Affordable Care Act) to pay I/T/Us for services the I/T/Us provide to any AI/AN covered by the third party payer. The provision became effective in March of 2010. CMS is in agreement that within the context of Exchanges and QHPs, IHCIA section 408 requires QHPs to pay certain I/T/Us for health care services provided to AI/ANs, at a minimum, using the QHP’s “generally applicable payment rate” for like providers and services and “does not depend on in-network status with a QHP.”14 The additional position advocated by the Tribal Technical Advisory Group to CMS (TTAG) – that section 408 of the IHCIA requires all QHPs to offer to contract with I/T/Us as in-network providers – was not agreed to by CMS in their Final Rule on QHP minimum requirements.

A second Indian-specific payment provision is section 206 of the IHCIA. Under section 206 of the IHCIA, 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.) Section 206 applies for services rendered to AI/ANs and non-AI/ANs alike. Section 206 also states that

Northwest Portland Area Indian Health Board Page 2 of 9 Draft April 29, 2011 no law of any State or provision of any contract shall prevent or hinder this right of recovery by an I/T.

When determining payment requirements for QHPs with I/T/Us, the Essential Community Provider (ECP) and Federally-qualified health center (FQHC) payment provisions also need to be considered. Because some ECPs are FQHCs, the provisions applicable to each overlap and need to be considered in combination to determine their effect.

The ECP contracting provision (ACA § 1311(c)(1)(C)) is qualified by ACA § 1331(c)(2) which states, “Nothing in paragraph (1)(C) shall be construed to require a qualified health plan to contract with a provider described in such paragraph if such provider refuses to accept the generally applicable payment rates of such plan.” In contrast, a separate FQHC-specific payment provision in the ACA (§ 1302(g)) requires that “If any item or service covered by a qualified health plan 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 offeror of the plan shall pay to the 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 such Act (42 U.S.C. 1396a(bb)) for such item or service.” As such, the first (ECP-specific) provision indicates that ECP cannot demand payment levels above a QHPs “generally applicable payment rate.” In contrast, the second (FQHC-specific) provision indicates that QHPs must pay FQHCs no less than the FQHC’s Medicaid PPS15 rate, a rate likely higher than the QHP’s generally applicable payment rate.

CMS sought in the Final Rule to provide guidance on reconciling these provisions. With regard to the FQHC and ECP payment provisions,16 CMS found “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.”17

In the Final Rule, CMS did not fully address the issue of reconciling the payment provisions under IHCIA sections 206 and 408 with the FQHC provisions. However, CMS did include the following in the preamble to the Final Rule – “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 [by the Indian provider] 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.”18

When the ECP and FQHC provisions are considered with the section 408 and 206 provisions, it would 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 to the I/T/U, or use none and pursue a different, mutually agreed upon payment amount or mechanism with the QHP, possibly with the caveat that the rate (at least for I/T/Us that are FQHCs) must be no less than the QHP’s generally applicable payment rate. 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.

Including Indian Health Care Providers as In-Network Providers

The Affordable Care Act19 requires (under section 1311(c)(1)(B)) each Exchange to establish and enforce standards with Exchange plans to ensure network adequacy in regard to available in- network providers. QHPs are to “maintain a network that is sufficient in number and types of providers... to assure that all services will be accessible without unreasonable delay.”20

In addition, the Affordable Care Act requires that each Exchange ensure that QHPs include in their networks a “sufficient number and geographic distribution of essential community providers, where available, to ensure reasonable and timely access” to services. ECPs are providers that serve predominantly low-income, medically-underserved individuals, and as indicated in the Final Rule specifically include FQHCs. A substantial number of Indian Health Care Providers are statutorily defined as FQHCs, and as such qualify as ECPs.21

For purposes of serving AI/ANs, we believe ensuring a sufficient choice of providers requires that Exchange plans offer contracts to all I/T/U providers in the QHP’s service area. We recommend, consistent with ACA §§ 1311(c)(1)(B) and (c)(1)(C), that as a condition of participation in an Exchange, QHPs should be required to offer to include all available I/T/U providers in the plan’s provider network.

If this recommendation were adopted and all I/T/U providers in a State decided to contract with a particular QHP, this would still not create an undue burden on the QHP as the total number of I/T/U facilities is modest. For instance, in Oregon there are twelve I/T/U health care delivery sites. 22 In Washington State, there are thirty-six health care delivery sites. And in Idaho, there are six health care delivery sites operated by Tribes, tribal organizations, urban Indian organizations, or the Indian Health Service.

In comments submitted to CMS, the TTAG recommended that each Exchange require QHPs to 1) offer to contract with I/T/Us and 2) use an Indian Addendum when contracting with I/T/Us. CMS did not accept these recommendations in full, but as published in the Final Rule23 CMS intends to develop an Indian Addendum template for use by QHPs. CMS also stated that, at its option, an Exchange may require all QHPs to use the Indian Addendum when contracting with I/T/Us. CMS further commented that “we believe that QHP issuers will find it in their interest to adopt such a template when contracting with Indian providers.”24 An Indian Addendum is designed to list applicable Indian-specific Federal requirements. These provisions of Federal law apply whether or not the Indian Addendum is used, but use of an Indian Addendum has proven to simplify and clarify the identification and application of these provisions for contracting health plans. Under Medicare, a similar “I/T/U Addendum” is being used successfully by Medicare Prescription Drug Plans when contracting with I/T/U pharmacies.

Enforcement

Under the implementing regulations for the Affordable Care Act, an Exchange is generally responsible for monitoring ongoing QHP compliance with certification standards.25 For instance, under 45 CFR § 155.1000 an Exchange is to certify QHPs, and under 45 CFR § 155.1080, an Exchange is given express authority to decertify a QHP at any time for noncompliance with certification standards.

With regard to the I/T/U-specific payment provisions, enforcement of the provisions by an Exchange may depend upon whether CMS or an Exchange explicitly establish compliance with the payment provisions as a certification standard. For instance, network adequacy, including ECP inclusion, is identified as a certification standard. It is recommended that the Exchange establish compliance with Indian-specific provisions (including IHCIA §§ 206 and 408) as an explicit certification (and recertification) standard for QHPs. A statement by a QHP indicating they are in compliance with applicable Indian-specific provisions, combined with the use of an Indian Addendum identifying the Indian-specific provisions, could serve as the initial method of monitoring compliance with the provisions. Potential compliance violations reported by AI/ANs and I/T/Us to the Exchange could serve as a second tier mechanism to monitor compliance.

More generally, though, IHCIA § 206 identifies enforcement authorities for the provision beyond what may occur within the QHP certification process. IHCIA § 206(e)(1) states, “The United States, an Indian tribe, or tribal organization may enforce the right of recovery provided under subsection (a)…” For IHCIA § 408, an enforcement provision is not included within the section. Section 408(c) does indicate, though, that “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)).’’

Ensuring Quality of Care and Financial Accountability by Indian Health Care Providers

Indian Health Care Providers strive to provide the best health care possible and are required by federal law to report annually on quality measures on its patients under the Government Performance and Results Act (GPRA). Other government health programs operated by the Department of Veterans Affairs and the Department of Defense have to do the same. Each year, the Indian Health Service includes its GPRA report card to the Office of Management and Budget (OMB) as well as to Congress as part of the IHS budget submission. The GPRA report card informs Congress about the quality of care the Indian health system is providing to its patients. The report card includes certain performance measures developed by IHS for the AI/AN patient population. For example, quality of care is measured by how well I/T/Us are treating diabetes and heart disease. It also measures how well I/T/Us are doing in preventing diseases like cancer, obesity, and HIV. Last year, IHS reported on 21 GPRA and three other clinical performance measures.

Indian health programs are also required to meet quality and accreditation standards for the purposes of participating in the Medicare, Medicaid and CHIP programs. To comply with these requirements, IHS, tribal and urban Indian programs are routinely accredited through such organizations as the Accreditation Association for Ambulatory Care or the Joint Commission on Accreditation of Health Care Organizations. This process requires Indian health programs to submit to a process in which their performance is measured against nationally-recognized standards. Participation in the accreditation process demonstrates that the Indian health system is committed to providing high-quality health care and that it has demonstrated that commitment by measuring up to the nationally-recognized standards.

In addition, Indian health programs are required to comply with federal requirements for financial accountability. Indian health programs must submit data for the purposes of the federal Program Assessment Rating Tool (PART), which measures budget and program performance. A PART review helps identify a program’s strengths and weaknesses and informs funding and management decisions aimed at making the program more effective. This process applies a consistent series of analytical questions to measure programs over time, allowing weakness to be identified and facilitating upgrades to be made that improve outcomes.

Tribal Consultation

As indicated by CMS, 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.”26

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).”27

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.”28 There is no Federal requirement for Exchanges to fund technical assistance provided by Tribes and tribal organizations to States, but this type of expenditure by an Exchange is a permissible use of Exchange establishment grant funding.29

Given this context, we recommend that the State implement and monitor tribal consultation by the State and its Exchange-designated entities with regard to 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.

Conclusion

To maximize access to care for AI/AN enrollees, streamline contracting between QHPs and I/T/Us, and improve the coordination, timeliness and efficiency of health care services available to AI/ANs, a limited set of recommendations is offered here. We recommend adoption of a requirement for QHPs to offer to contract with I/T/U providers, which is consistent with and supported by ACA sections 1311(c)(1)(B) and (C) as well as IHCIA sections 206 and 408. We also

Northwest Portland Area Indian Health Board Page 6 of 9 Draft April 29, 2011 recommend that this requirement to offer to contract with I/T/Us be coupled with a requirement to use an Indian Addendum. Absent acceptance of the first recommendation (a requirement on QHP to offer to contract with I/T/U in QHP’s service area), we still recommend adoption of the second recommendation (a requirement for QHPs to use an Indian Addendum when contracting with I/T/Us.) In addition, we recommended that the Exchange establish compliance with Indian-specific provisions (including IHCIA §§ 206 and 408) as an explicit certification (and recertification) standard for QHPs. And finally, we recommend the State take a proactive role in conducting on-going consultations with Tribes and interactions with urban Indian organizations.

Northwest Portland Area Indian Health Board Page 7 of 9 1 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).

2 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.

3 Qualified Health Plans (QHPs) are established under § 1301of the ACA. A health plan is considered a QHP if it is certified as meeting the applicable Federal standards, as well any State-specific standards imposed by a State and/or Exchange, and is offered through an Exchange.

4 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.

5 IHCIA §§ 206 and 408 apply to certain health plans outside an Exchange as well, but this analysis pertains solely to QHPs offered through an Exchange.

6 State-based health insurance exchanges (Exchanges) will be available in each State in time to allow enrollment in new health insurance coverage options beginning January 1, 2014. Exchanges are marketplaces for the offering of health insurance coverage, mechanisms for determining eligibility for various government health insurance programs, and vehicles for securing government assistance, if eligible, with covering all or a portion of the health insurance plan monthly premiums.

7 Individuals enrolled in the individual market through an Exchange are eligible for premium assistance (based on a sliding scale), and QHPs are to eliminate any cost-sharing for AI/ANs who have family income at or below 300 percent of the Federal poverty level.

8 Indian Health Care Providers have the right to be paid by health plans offered outside and Exchange (“non-QHP health plans”) and other liable third party payers as well, for services rendered to AI/ANs except that urban Indian organizations have these payment protections only under Federal Health Care Programs. Indian Health Service and tribal organization providers also have these protections for services rendered to non-AI/AN persons.

9 AI/AN enrollees may have needed health care services delayed or denied if they are required, after being served by an out-of-network Indian Health Care Provider, to meet with an in-network primary care provider in order to receive a referral to an in-network specialist.

10 The potential for duplication of services arises, for example, if a QHP imposes pre-authorization requirements for in-network specialty services, and a QHP enrollee then needs to receive a referral from a second (and in-network) primary care provider. Duplication might also arise if a non-network I/T/U provider does not have similar access to the health information systems as in-network providers and therefore orders duplicate tests in order to properly treat a patient.

11 A draft Indian Addendum template has been prepared by Indian Health Care Providers that lists the applicable Federal laws when contracting with I/T/Us and provides an explanation of their application to the contract.

12 In the case of a State that does not elect to establish an 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 these instances, it is recommended that HHS adopt these recommendations for the Federally- facilitated Exchange.

13 The term Federal Health Care Program has the meaning given that term under section 1128B(f) of the Social Security Act (42 U.S.C. 1320a–7b(f)), except that, for purposes of this subsection, such term shall include the health insurance program under chapter 89 of title 5, United States Code (i.e., the Federal Employees Health Benefits Program).

14 77 Fed. Reg. 18420.

15 Medicaid prospective payment rate as defined at 42 U.S.C. 1396d(l)(2)(B).

16 ACA section 1302(g) establishes payment of FQHCs at the applicable Medicaid PPS rate. ACA section 1311(c)(2) establishes payment of essential community providers, including FQHCs, at the QHP issuer’s generally applicable payment rate.

17 Final Rule, 77 Fed. Reg. 18422.

19 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).

20 ACA § 1311(c)(1)(B) and 45 CFR § 156.230(a)(2).

21 ECPs include FQHCs, and FQHCs include “an outpatient health program or facility operated by a tribe or tribal organization under the Indian Self-Determination Act or by an urban Indian organization receiving funds under title V of the IHCIA for the provision of primary health services.”

22 IHS Facilities Table, October 6, 2010. Figures include health care delivery sites operated by the Indian Health Service.

25 “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 noncompliance with certification standards, including the discretion to establish sanctions for noncompliance.” 77 Fed. Reg. 18406.

26 Final Rule, § 155.130, 77 Fed. Reg. 18447.

27 Federal Register, July 15, 2011, CMS, “Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans,” (CMS-9989-P), Vol. 76, No. 136, page 41873. (“Proposed Rule”)