Affordable Care Act (ACA) and Indian Health Care ......• 2003: SEC. 506 Medicare Modernization Act. – “Limitation On charges for inpatient hospital contract health services provided

Affordable Care Act (ACA) and Indian Health Care Improvement Act (IHCIA)

Current Issues

June 9, 2016

http://tribalselfgov.org/health-reform/health-q-a/ask-a-question/

v. 1.2

http://tribalselfgov.org/health-reform/health-q-a/ask-a-question/

Agenda

1. PRC Rates: Application of Medicare-like-rates to non-hospital based providers

2. 100% FMAP State Health Official (SHO) Letter

3. Catastrophic Health Emergency Fund (CHEF)

4. Contract Support Costs (CSC)

5. Summary of Benefits and Coverage (SBCs)

2

PRC Rates: Application of Medicare Like Rates to non-hospital based

providers Hilary Andrews, Health Policy Analyst

United South and Eastern Tribes (USET)

MLR for Non-Hospital based services• On March 21, 2016 IHS released its much anticipated

final rule on Medicare-Like Rates (MLR) for Non-hospital based services called:

• “Payment for Physician and Other Health Care Professional Services Purchased by Indian Health Programs and Medical Charges Associated with Non-Hospital-Based Care”– Also being referred to as “PRC Rates” to distinguish from

Hospital-based MLR law.

• Final Rule incorporates many suggestions Tribal Advocates provided in response to the December 5th

2014 NPRM.

History of Issue• 2003: SEC. 506 Medicare Modernization Act.

– “Limitation On charges for inpatient hospital contract health services provided to Indians by Medicare participating hospitals”

• July 5, 2007: IHS issues regulations for “Medicare-Like Rates for CHS Services”– Law Covers: Medicare participating: Acute care hospitals,

Hospital based clinics, Psychiatric Hospitals, Rehabilitation hospitals, Long Term Care Hospitals, Critical Access Hospitals, Children's Hospitals, Cancer Hospitals.

– Does not cover: Free standing ambulatory surgery centers (ASC's), Surgical centers, Physician Services, Independent Laboratories, Any service or supply not covered by the Medicare program, Home Health, Hospice Services , Transportation.

History Continued• April 11, 2013 Government Accountability Office (GAO) issued a

report stating:– Federal PRC programs paid non-contracted physicians two and a half

times more than what it estimates Medicare would have paid for the same services.

– Expanding the Medicare Like Rate cap would allow the IHS to provide approximately 253,000 additional physician services annually.

• June, 2014: Rep Betty McCollum: Native Contract and Rate Expenditure (CARE) Act: Includes condition of participation in Medicare.

• December 5, 2014: Notice of Public Rule Making on MLR for non hospital based services.

Tribal Comments on NPRM• Comments submitted February 4th 2015

– Allow flexibility in application of rule by allowing Tribes which operate health programs under ISDEAA “opt out”

– Requested rule extends MLR payment methodologies to all services provided in non-hospital settings (including health professional services).

– Allow Tribal health programs to negotiate rates higher than the MLR but not higher than what that provider accepts from other non-governmental payers (like private insurance) for the same service.

– Directed IHS to engage in provider outreach and monitor the outcomes of the rule’s implementation.

Published Final Rule: March 21, 2016 • Allows Tribes with Health Programs under ISDEAA to “Opt in” to become subject to the rule.

• Defines “Providers & Suppliers” to include all services (including health professional services) not currently governed by the Hospital MLR law.

– This includes: physicians, facilities, comprehensive outpatient rehab facilities, home health agencies & hospice programs, lab, dialysis, transportation services.

• Flexibility by allowing PRC programs to negotiate rates that are higher than the MLR but capped at a rate that is “equal to or better than” what the provider accepts from its Most Favored Customer (MFC).

– ITU can pay higher than the MFC, if Tribal Health Program believes prices offered are reasonable even though comparable discounts were not negotiated and/ or If award (payment) is in the best interest of the Tribal Health Program as determined by the Tribal Health Program.

• In the absence of a negotiated amount with a provider, the ITU will pay the lowest of the following amounts:

– The applicable Medicare payment amount: including Medicare fee schedule or prospective payment system– An amount negotiated by a repricing agent– An amount not to exceed the provider or supplier’s MFC rate.

• In the event that a Medicare rate does not exist for an authorized item or service, and no other payment methodology above are available, then the allowable amount is 65% of authorized charges.

Final Rule Continued• Rule became effective: May 20, 2016

– Tribal health programs may choose to opt-in immediately or whenever they are able to fully implement the rule.

• IHS facilities and Urban Indian Orgs should implement the rule as soon as possible, but must implement the rates no later than one year from the date of publication March 21, 2017

• It is incumbent upon providers to issue documentation on commercial price lists or paid invoices and other related pricing & discount data to determine MFC and ensure that PRC Staff is receiving a fair and reasonable pricing arrangement.

• IHS said they will not monitor or report on the impacts of the implementation of the rule since they believe this is out of the scope of the final rule.

• Important Note: This rule doesn’t include an enforcement mechanism like the one that exists for the hospital-based MLR law.

Comment on Final Rule

• Final Comments offered on: May 20, 2016• Tribal comments included:

– Support for the inclusion of tribal recommendations to the NPRM in the final rule

– Requests for monitoring and evaluation on implementation impact including access to care, as part of on-going quality initiatives.

– Clarification on the definition of “referral” in final rule.– Clarification and consultation on issues regarding payer of

last resort (as related to Tribal Self Insurance).– Requested additional flexibility with the ways that Tribes

can “opt in” to become subject to the rule.

Implementation & Opt In• Can request “Opt in Language” from ALN and amend AFA to

become subject to rule. – Rule requires a total “opt in” but there is enough built-in flexibility that

Tribes can negotiate rates on a provider by provider basis. • It is the responsibility of the I/T/Us to calculate/estimate payment

rates– Claims processing options: 1) Use the IHS Fiscal Intermediary via

“buyback, 2) Contract with a third party administrator, 3) Download the PC PRICERs from CMS Website, 4) Purchase PC PRICER commercial software

• Other Assistance: – IHS Implementation Webinars: May 17th & June 7th

• Included training for PRC staff by FI. – In person training: June 28-30, 2016 at “IHS Partnership Conference”– Dear Provider Letter issued May 25th & on PRC website. – Technical assistance from Area PRC officer

1HOBBS STRAUS DEAN & WALKER, LLPWASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA | ANCHORAGE, AK

CMS 100% FMAP


Background• Federal government pays percentage of

State cost for Medicaid services– Usually between 50-72%– MCaid expansion population 100% until 2016

and then phased down to 90% by 2020• Section 1905(b) of Social Security Act

– Pay 100% FMAP for services “received through” the IHS or a Tribe/Tribal organization


CMS Interpretation of § 1905(b)• 100% FMAP for direct care services

provided by IHS/Tribal provider

• CMS previously interpreted “received through” to mean 100% FMAP does not apply to services provided and billed by non-IHS/Tribal providers


State Waivers• States like South Dakota & Alaska

– Proposed tribal Medicaid waivers seeking to expand the scope of the CMS’s interpretation of 100% FMAP

– Tribes and tribal organizations support expanded application of 100% FMAP


CMS Proposed Expansion• State Health Official Letter & Dear Tribal

Leader Letters (Feb. 26, 2016)• Now interpret § 1905(b) “received through”

to include services provided by non-IHS/Tribal providers:

“[W]hen an IHS/Tribal facility practitioner requests theservice, for his or her patient, from a non-IHS/Tribalprovider (outside of the IHS/Tribal facility) who is alsoa Medicaid provider, in accordance with a carecoordination agreement.”


Conditions• Both the IHS/Tribal facility and the non-

IHS/Tribal facility must be enrolled in Medicaid program

• Established relationship between patient and qualified practitioner at IHS/Tribal facility

• Care provided pursuant to written care coordination agreement


Care Coordination Agreement• Must be between IHS/Tribal facility and the non-

IHS/Tribal provider• The IHS/Tribal facility practitioner must:

• Provide a request for specific services and relevant information

• Receive information about the care provided• Continue to assume responsibility for overseeing the

patient’s care• Incorporate the patient’s information into the medical

record


Expanded Scope of Services• CMS is expanding the scope of services to

be covered by 100% FMAP– Any services that the IHS/Tribal facility is

authorized to provide under both IHS rules and the State Medicaid plan

– Can include long-term care services and supports

– Can include transportation and related travel


Billing and Payments• Services by non-IHS/Tribal provider may be

billed to Medicaid by the non-IHS provider or by the IHS/Tribal facility

• Billing arrangement should be reflected in the written agreement between the providers

• Applicable payment and rate methodologies must be in the State Medicaid Plan


Managed CareFor AI/ANs enrolled in Medicaid Managed Care Organizations, Prepaid Inpatient Health Plans, or Prepaid Ambulatory Health Plans, 100% FMAP applies to the portion of the capitation payment attributable to the services “received through” an IHS/Tribal facility, under certain conditions.


Managed Care Conditions• Service provided to AI/AN Medicaid beneficiary

enrolled in the managed care plan• Service meets same requirements that apply to

fee-for-service delivery system• Non-IHS/Tribal provider paid by the plan

consistent with network provider contract and managed care plan

• State complies with CMS guidance and law governing managed care plan payment rates to Indian health providers


Additional Clarifications• New policy applies to services

covered under Section 1115 demonstration waivers

• CMS will provide additional guidance on 100% FMAP policy

• CMS held All Tribes Call on 3-10-16


Opportunities• FMAP is reimbursement to States• Incentive for States to work with Tribes

– Only available to States if Tribes and non-Tribal providers enter into the coordinated care agreements

– Possibility for Tribes to work with States to obtain something in return (e.g., administrative claiming, ability to bill for new services or include new populations)


IHS CHEF REGULATIONS


IHS CHEF Regulations• Part of PRC program – CHEF intended to

help meet needs of high-cost medical disasters and catastrophic illnesses

• Administered through internal guidelines• IHCIA Sec. 202(d) requires IHS to

promulgate CHEF regulations• Proposed regulations issued Jan. 26, 2016• Comments due May 10, 2016


Proposed Regulations - Threshold

• Reimbursement for cost of treatment for episode of care after reaches threshold– FY 2016 CHEF eligibility to be set at the FY

2000 level of $19,000– Subsequent years will be set at the prior fiscal

year threshold + medical care category of the Consumer Price Index


Proposed Regulations - Exclusions• No CHEF payment if the patient is eligible

for “alternate resources”– Defined to include any “Federal, State, Tribal,

local, or private source of reimbursement for which the patient is eligible . . . [including] Tribal or local health care programs . . . and private insurance.”

– Preamble: “Private insurance” includes Tribal self-insured plans


Tribal Alternate Resources• Significant departure from IHS guidelines

– Did not include any tribal source of reimbursements

• Inconsistent with IHCIA § 202(d)(5)– Only gives the Secretary rulemaking authority

to limit CHEF payments when a provider can receive payment from “any other Federal, State, local or private source of reimbursement” - “Tribal” is not in the statute


Tribal Alternate Resources Cont’d• Regulations cannot exceed the scope of limited

Secretary rulemaking authority– Pharm. Research and Mfg. v. DHHS, 43 F. Supp. 3d

28 (D.D.C. 2014)• Payer of Last Resort at § 2901 of the PPACA

does not provide any authority for IHS to make a tribal health program a primary payer to CHEF

• § 206 of IHCIA – IHS barred from seeking recovery from tribal self-insurance


Proposed Regulations -Administration

• IHS gives itself significant discretion in how to administer CHEF

• Requests for CHEF reviewed by Area: – Patient eligibility– Medical necessity and priorities– Notification requirements– Allowable expenditures– Eligibility for alternate resources


Proposed Regulations –Administration Cont’d

• Proposed regulations do not explain how those criteria will be applied by the Areas

• Full CHEF reimbursement will be limited to availability of funds, without explaining how determinations made

• Determinations about alternate resources made by IHS HQ, but no criteria provided for implementation


Proposed Regulations - Other• Establish procedure for payment from

CHEF under medical circumstances that warrant treatment before authorization

• Must return CHEF $ if payment made for medical episode but then that same episode becomes eligible for and is paid by an alternate provider

• CHEF is not subject to contracting/grants


Tribal Consultation• Tribes Requested IHS suspend

regulations and consult• June 1, 2016, Mary Smith issued a Dear

Tribal Leader letter stating that IHS will be holding additional consultation– Two telephonic consultations summer/fall tbd– In person consultation at NCAI Convention

October 9-14 in Phoenix AZ


Redding Rancheria v. Burwell, Civ. No. 14-2035 (D.D.C.).

• IHS actively arguing in this case that tribal self-insurance plans must be considered an alternate resource

• Litigation position consistent with proposed regulations position

• Amicus brief filed by tribal organizations and tribes


Questions?Elliott MilhollinHobbs, Straus, Dean & Walker LLP2120 L Street, NWWashington, DC 20037(202) [email protected]

“Excellence in Rural Health Care”

Previous CSC Policy – IHM Part 6, Chapter 3New Draft CSC Policy – Dear Tribal Leader

Letter Dated April 11, 201660-day comment period: June 10, 2016Tribal Self-Governance Advisory Committee

comments available for use

Tribal/Federal Joint WorkgroupWork on CSC Policy began in earnest last fall Intensive, but collaborative work between the Tribal

and Federal Teams Substantial agreement on many items Items of disagreement footnoted and policy language

was drafted neutrally Highly detailed, resulting in a very complex policy

Pre-Award (one time)Start Up (one time)Indirect CostsDirect Contract Support CostsIndirect-Type Costs

Revisions throughout to reflect a full-funding environment for CSC

Page 3 – Guiding Principles Page 5 – Expanded Definitions

o Such as for Buyback and Retained

Page 11 – Determining CSC Requirements Page 12 – Pre Award and Startup

o Ability to negotiate additional start-up o Self-Certification of expenditure

Page 12 – Direct CSCo Inflation Rate – Footnote on Medical Inflation Rateo Conditions for renegotiation of DCSC:

• Tribal Request• DCSC costs are moved to the IDC Pool• Withdrawal from a consortium• Conversion of IPA/MOA to Tribal direct hires• New or Expanded PSFAs

Page 14 – Indirect CSCo Carry-over issue (incurred costs issue)

• Policy assumes that Tribe expended 100% of CSC if: • Expenditures for Total Health Program (IHS funds and 3rd

party) at least equals the IHS award.

o Reconciliation issue• Ability to “close out” CSC reconciliations/payment with

bilateral amendment – at Tribal option• Fixed with Carryover rate no more than one year old; • Provisional/Final rate no more than two years old• Alternatively, a Tribe can choose to keep payments

open for future adjustment

“Duplication Issue” – statute requires that CSC not be duplicatedo IHS: Unduplicate by categoryo Tribes: Unduplicate by amounto Most significant unresolved issue in the Policy – language

is neutralo Tribal/Federal differences footnoted in Policy

Options for Duplication Offset: o Case by case analysis/negotiation; o 80/20 Rule for Tribal Shares o 97/3 Rule for Service Unit/Program Amount

“Duplication Issue”o No automatic “look back” for duplicationo Conditions prompting renegotiation:

• New or expanded PSFAs• New costs placed in the IDC pool causing over 2%

growth• Tribe opts to renegotiate

Indirect-Type Costso Tribes with IDC rates older than 3 years; ando Tribes using IDC rates, may negotiate additional costs

Overpayments – Tribe can elect to either: o Pay back to IHS; oro Apply the overpayment to the next year’s CSC need

Annual Funding Report to Tribeso New requirement o Not dependent upon the IHS’ Report to Congress

New Exhibit: ACC (Annual CSC Calculation) ToolWorkgroup did not yet reach consensus on

worksheets proposed that will support the ACC Later to include calculation sub-sheets that will

support the ACC – not included in this Policy draft Training: for IHS and Tribal staff

June 10, 2016: Comments Due June – July: Compile CommentsAugust: CSC Workgroup Reviews/Makes Edits September: Target for Implementation

Resources: o DTLL April 11, 2016 with Draft Policyo TSGAC Comments to Policyo TSGAC Talking Points

Roselyn Tso, IHS CSC Leado [email protected] 971-506-1928

Ashley Metcalf, IHS CSCo [email protected] 615-495-1297

“Excellence in Rural Health Care”

5. Summary of Benefits and Coverage (SBC)

Eligibility Criteria for Indian-Specific Cost-Sharing Protections

2

45 CFR § 155.350(a) Special eligibility standards and process for Indians. * 45 CFR § 155.350(a) Eligibility for cost-sharing reductions.** 45 CFR § 155.350(b) Special cost-sharing rule for Indians regardless of income.

0 0%

Eligibility determination for insurance affordability programs*

Non-income based eligibility determination**

400%

300% 300%

200% 200%

100% 100%

Eligibility for Indian-Specific Cost-Sharing Protections:(1) Eligibility determinations for "insurance affordability programs"

and (2) non-income based eligibility determinations

If HH income is: (1)*HH income of

any income level: (2)**

Hous

ehol

d In

com

e as

a P

erce

ntag

e of

Fe

dera

l Pov

erty

Lev

el

500%+

Hous

ehol

d In

com

e as

a P

erce

ntag

e of

Fe

dera

l Pov

erty

Lev

el

500%+

400%

Limited Cost-Sharing

Variation

Limited Cost-Sharing Variation

Zero Cost-SharingVariation

Limited Cost-Sharing Variation

Requirement for QHP Issuers to Provide “Summary of Benefits and Coverage” for Each “Zero” and “Limited” CSV

Prior to 2016 open enrollment (i.e., October 2015), QHP issuers are to make available a Summary of Benefits and Coverage (SBC) document for each QHP variation. An SBC is to be prepared and made available for each “zero” cost-sharing plan variation and each

“limited” cost-sharing plan variation, as well as for the CSVs available to the general population.

3

AcronymsAcronyms:

• IHCP: Indian health care provider, sometime referred to as I/T/U

• I/T/U: IHS, Tribe, Tribal health organization, urban Indian organization

• THO: Tribal health organization

• ACA: Patient Protection and Affordable Care Act

• PTCs: Premium tax credits

• APTCs: Advanced payment of premium tax credits

• CSRs: Cost-sharing reductions

• CSVs: Cost-sharing variations

• IHS: Indian Health Service

• HHS: (Federal) Department of Health and Human Services

• CMS: Centers for Medicare and Medicaid Services, HHS

• CCIIO: Center for Consumer Information and Insurance Oversight, CMS/HHS

• QHP: Qualified Health Plan

• FFM: Federally-Facilitated Marketplace

• ECP: Essential community providers

4

Documents

Affordable Care Act (ACA) and Indian Health Care ......• 2003: SEC. 506 Medicare Modernization Act. – “Limitation On charges for inpatient hospital contract health services provided