mmpc - National Indian Health Board

MEDICARE, MEDICAID, & HEALTH REFORM 

POLICY COMMITTEE (MMPC) 

FACE TO FACE MEETING 

Tuesday, November 13, 2012 

9:00am-5:00pm EST 

KAISER FAMILY FOUNDATION, BARBARA CONFERENCE CENTER

MISSION STATEMENT 

The Medicare, Medicaid and Health Reform Policy Committee (MMPC) is a 

standing committee of the National Indian Health Board (NIHB). The committee 

is chaired by a member of the NIHB Board of Directors. The primary purpose of 

MMPC is to provide technical support to the Tribal Technical Advisory Group to 

the Centers for Medicare and Medicaid Services (TTAG). TTAG is a group 

codified by the American Reinvestment and Recovery Act of 2009 and is 

composed of formally appointed representatives from each Indian Health 

Service (IHS) Areas as well as from specific national Indian 

organizations. TTAG advises the Centers for Medicare and Medicaid Services 

(CMS) on Indian issues related to Medicare, Medicaid, the Children’s Health 

Insurance Program (CHIP), and any other health care program funded (in whole 

or part) by CMS. MMPC continues work on the Affordable Care Act (ACA) and 

Indian Health Care Improvement Act (IHCIA) health policy issues, regulation 

review and the development of draft positions with the greatest opportunities 

and highest priority for the Indian Health System. 

MMPC also acts as a national forum to identify, discuss, advise and act on issues 

that will improve the health of American Indians and Alaska Natives. In this 

capacity MMPC has the ability to pool expertise in Indian health care from 

across the country in order to develop information and recommendations on 

current issues. Implementation of components of the Indian Health Care 

Improvement Act and the Patient Protection and Affordable Care Act that are 

outside the jurisdiction of CMS are examples. 

Membership in MMPC is open to individuals authorized to represent: a Tribe; 

Tribal Organization; Urban Indian Program; or Indian Health Service (IHS). For 

more information or to join the MMPC distribution list please contact Liz 

Heintzman at lheintzman@nihb.org.

GENERAL INFORMATION 

TABLE OF CONTENTS 

MMPC FACE TO FACE AGENDA 1 

MMPC ACTION PLAN, TASKS, & ASSIGNMENTS 3 

MMPC OCTOBER TELECONFERENCE AGENDA NOTES 16 

ACTIVE, NEW & ONGOING MMPC/TTAG ISSUES, STATUS, GOALS & NEXT STEPS 

IRS SEPTEMBER MEETING NOTES 20 

INDIAN ADDENDUM COMPANION PIECE 23 

INDIAN ADDENDUM 30 

TRIBAL CONSULTATION WITH HHS ON FFE/MEDICAID EXPANSION NOTES 35 

NIHB COMMENT TO ALL INCLUSIVE REIMBURSEMENT RATE AGREEMENT 44 

TSGAC COMMENT TO ALL INCLUSIVE REIMBURSEMENT RATE AGREEMENT 46 

SUMMARY OF INDIAN SPECIFIC BENEFITS AND PROTECTIONS 50 

CHART OF INDIAN SPECIFIC HEALTH CARE PROVISIONS 52 

WHITE HOUSE LETTER FROM CRIHB & NPAIHB 53 

AMENDMENT TO ACA REGARDING AI/AN DEFINITION 56 

ENABLING EXCHANGES IMPLEMENT A STREAMLINED APPLICATION PROCESS PAPER 57 

MEDICAID REPORT FROM CRIHB 73 

DEAR TRIBAL LEADER REGARDING HHS CONSULTATION LETTER 123 

TRIBAL CONSULTATION POLICY 124 

TTAG FACE TO FACE PREPARATION ___ 

TTAG AGENDA 134 

BEHAVIORAL HEALTH DOCUMENTS ___ 

HHS BLOCK GRANT REGULATIONS 137 

NPAIHB COMMENTS TO IHS NATIONAL BEHAVIORAL STRATEGIC PLAN 150 

NPAIHB COMMENTS FOR UNIFORM APPLICATION FOR MENTAL HEALTH BLOCK GRANT 154 

NPAIHB COMMENTS ON TRIAL LAW & ORDER ACT OF 2010 158 

GO THE EXTRA MILE INITIATIVE ___ 

EXECUTIVE DIRECTOR LETTER 161 

GO THE EXTRA MILE FACT SHEET 162 

ADDITIONAL ITEMS ___ 

LEGISLATIVE ACTION ALERT 165

Last Updated: November 12, 2012 

Medicare, Medicaid, and Health Reform Policy Committee (MMPC) 

Face to Face Meeting 

Tuesday, November 13, 2012 

9:00 AM-5:00 PM EST 

Call in number: NIHB conference line: 1-866-303-3137 

Passcode: 414526 

AGENDA 

Purpose: To review and provide updates and detailed discussion of 2012 MMPC Action Plan priorities and assignments. 

Outcomes: 

1. Continue work on the Affordable Care Act (ACA) and the Indian Health Care Improvement Act (IHCIA) 

health policy issues, regulation review and development of draft positions with the greatest opportunities and 

highest priority for the Indian health system; 

2. Review strategies and process for advancing issues; and identified tasks and timeframes; and, 

3. Prepare for TTAG November 14-15, 2012 Face to Face meeting. 

9:00 am Welcome 

Opening Prayer 

Introductions 

9:10 am Review of Agenda, Purpose of Meeting and General Housekeeping Items 

9:30 am Regulations Review Update (MMPC Action Plan #5) (also see handout) 

Review status of proposed comments 

Upcoming regulations 

10:00 am Prepare for Office of Personal Management (OPM) Guest Speaker-John O’ Brien, Director, 

Healthcare & Insurance, OPM (also see handout) 

10:10 am John O’Brien OPM (tentative time) 

Kaiser Family Foundation/ Barbara Jordan Conference Center 

1330 G Street, NW, Washington, DC 20005 

Phone: (202) 347-5270; fax: (202) 347-5274 

10:50 am Active, New and Ongoing MMPC/TTAG Issues, Status, Goals, and Next Steps 

(Review of Current MMPC Action Plan and Strategies) 

1. Update on IRS Issues (MMPC Action Plan #9) 

a. Assignment of tax refunds 

b. Treatment of Indian income under MAGI

Last Updated: November 12, 2012 

2. Discussion on CCIIO Policy Issues (MMPC Action Plan # 6) 

a. Status of internal clearance on Indian Addendum and companion piece 

b. Timing on response to tribal comments on the Federally-facilitated exchanges. 

3. Tribal Hospital EHR Charity Care Calculation (Myra Munson) (MMPC Action Plan #10) 

4. Update on VA/IHS Draft Reimbursement Agreement (MMPC Action Plan #11) 

5. Single Enrollment Form for Exchanges and Medicaid (MMPC Action Plan #6) 

a. Request schedule and process for dealing with open issues, including how CMS is dealing 

with process for vetting with other groups 

6. Working with States on Exchanges and Medicaid Expansion (MMPC Action Plan #19) (also see 

handout) 

a. Status of letter to Tribes (development of a template from CMS) for outlining process at state 

level for those Tribes not moving forward with Medicaid Expansion (Jim Roberts) 

b. Need a process to ensure that Medicaid Expansion is addressed through the ACA Policy 

Subcommittee; raise this at the TTAG meeting 

c. State Waivers 

7. Standard Operating Procedures (SOP) on the CMS Tribal Consultation Policy (MMPC Action Plan 

#2) 

a. needs to be reviewed by the TTAG Consultation Policy Subcommittee 

8. Data Issues (MMPC Action Plan #28) 

9. Consultation (MMPC Action Plan #2, 3, 4) 

12:00 pm Lunch on Your Own 

1:00 pm Continue Discussion of Active, New and Ongoing MMPC/TTAG Issues, Status, Goals, and Next 

Steps 

1:50 pm Prepare questions to ask Dr. Yvette Roubideaux 

2:00 pm Dr. Yvette Roubideaux Q/A 

3:00 pm Break 

3:15 pm Prepare for TTAG Face to Face 

Review TTAG Agenda 

Prepare TTAG Talking Points 

4:30 pm Additional Discussion Topics 

5:00 pm Adjourn MMPC 

Upcoming Calls/Meeting dates 

Post-Election 

Need for more active participation on TTAG subcommittee calls 

Decision to dissolve or keep active/reorganize across state borders and behavior health 

subcommittees 

NIHB GO the EXTRA MILE Initiative 

MMPC Teleconference Call-December 5, 2012, 2:00-4:00 PM EST 

TTAG Teleconference Call-December 12, 2012, 2:30-4:00 PM EST

Ref. 

# 

MMPC: SUMMARY OF ISSUES, STRATEGIES & ASSIGNMENTS 

UPDATED 10/9/12 

(RECENT UPDATES IN RED AND HIGHLIGHTED IN YELLOW) 

Please Note: This Summary of issues, assignments and strategies has been organized to follow the 

general Goals and Objectives identified in the “draft” 2013-2018 CMS-TTAG AI/AN Strategic Plan. 

I. CONSULTATION 

Task/Issue Person(s) 

1. Invites/Presentation at 

MMPC/TTAG November 

2012 Face-to-Face 

meetings 

NIHB 

Liz Heintzman 

Due Date/ 

Timeline 

Action(s) Needed 

Oct 2012 Finalize topics and 

speakers for CMS Day; 

plenary and workshops 

Brief Summary of Next Steps and Follow-up 

Notes/Comments 

MMPC November 2012 Meeting: 

1. Invite OPM 

2. Review Data Report (request copy from Jim Crouch/Carol Korenbrat) 

TTAG October 2012 Meeting – Additional Agenda Items/Topics: 

1. Request updates from CCIIO on (1) status of internal clearance on 

Indian Addendum and companion piece; and (2) timing on response 

to tribal comments on the Federally-facilitated exchanges. 

2. Request Schedule and Process for dealing with open issues on the 

Single Enrollment Form for Exchanges and Medicaid including how 

CMS is dealing with process for vetting with other groups. 

3. Status of letter to Tribes (development of a template from CMS) for 

outlining process at state level for those Tribes not moving forward 

with Medicaid Expansion (Jim Roberts) 

TTAG November 2012 Meeting: 

1. Invite Gary Cohen 

2. Invite OIG to report and present on Safe Harbors and Medicaid 

Collections 

3. Take final action on CMS TTAG Strategic Plan 

4. Fuller discussion and update on working with States on Exchanges 

and Medicaid Expansion 

National Indian Health Board, MMPC Issues, Strategies & Assignments Page 1 of 13 10/9/12

Ref. 

# 

2. 


CMS Consultation 

Policy 

3. State/Tribal 

Consultation 

Jim Roberts 

Myra Munson 

MMPC 




Due Date/ 

Timeline 


On-going CMS Policy Finalized 

November 2011 

MMPC On-going Need to engage with 

States and establish 

process for Tribal 

consultation 



Final CMS Consultation Policy released November 2011. There are some 

substantive differences between the originally approved Tribal Consultation 

Workgroup version and the final copies released by CMS. Talking points of these 

issues and concerns were drafted for Tribal leaders to use for the all Tribes call 

hosted by CMS on Friday, December 9th . 

Draft letter has been developed to CMS on behalf of TTAG Co-Chairs regarding 

Tribal recommendations on the process & timeline for revising the Consultation 

policy. To be finalized by April 10, 2012. 

Letter approved by TTAG and forwarded 4/11/12. 

Standard Operating Procedures (SOP) being prepared by Kitty on the CMS Tribal 

Consultation Policy (needs to be reviewed by the TTAG Consultation Policy 

Subcommittee). 

1. Monitor SPA’s 

2. Tribes engage in planning efforts with States on Health Exchanges 

3. Engage and monitor State legislative action 

4. Medicaid Managed Care – Kansas Tribes’ Strategy. 

7/24/12 Update: 

13 States are going forward with State Exchanges. 

HHS Secretary directed States to work with Tribes. 

Only 4 States are actively working with Tribes (OR, RI, WA, and MN) 

Only 3 States have formal Tribal consultation policies (OR, RI and WA) 

Next Steps/Recommendations: 

1. Have a Tribal TTAG Representative participate on monthly CCIIO calls on 

State Exchanges. 

2. Request updated list of State Exchange contacts. 

3. Request CCIIO to report back on which States with establishment grants 

have Tribal consultation policies. 


Ref. 

# 


4. Tribal Consultation 

Sessions on Federallyfacilitated 

Exchanges 

MMPC 

Mim Dixon 




Due Date/ 

Timeline 

July-August 

2012 


Discuss strategy, review 

talking points, and assign 

people to speak to issues 



4. Have Area Health Boards reach out to Tribes and assist in communication. 

5. 9/5/12 - Need a process to ensure that Medicaid Expansion is 

addressed through the ACA Policy Subcommittee; raise this at the 

next TTAG meeting in November 2012. 

6. Need to develop a letter to Tribes on process of what needs to 

happen at State level for those States not moving forward with 

Medicaid Expansion; Work with CMS on a template. 

HHS held 3 Tribal consultation sessions: July 26 (Washington, DC); August 7 

(Anchorage, AK) and August 9 (Denver, CO) 

Next Steps: 

1. Conference call held 7/31/12. Additional talking points and strategy 

developed for presentation at the August 7 & 9 th Consultations. Talking 

Points to be circulated. 

2. Request CCIIO to share information with Tribes/TTAG that is being 

communicated with States. 

3. Need clarify from IHS regarding their ability to pay premiums. (This may 

require a technical fix.) 

4. Comments forwarded on behalf of NIHB and TTAG (Sept 2012). 

5. TTAG to request an update from CCIIO on the timing and response to 

Tribal recommendations and comments. 


Ref. 

# 

II. POLICY 





Due Date/ 

Timeline 


5. Regulation Review NIHB On-going Identify Regs 

Coordinate & Submit 

Comments 

Track Responses 

6. TTAG ACA Policy 

Committee 

NIHB On-going Conduct weekly 

conference calls to 

review issues 

(Wednesdays 3-5 pm 

eastern) 



NIHB to continue to provide CMS with on-going written Regulation Review and 

Update Report on a bi-monthly basis. 

Reg. Report, v.2.10 covering the time period through August 15, 2012 was 

distributed. NIHB received new cycle of funding end of September 2012. Will 

review the process and timeframes for continuing the on-going Reg. Report 

on a bi-monthly basis. 

10/9/12 - Upcoming Regs and Comments due as follows: 

1. CMS #10003 Paperwork Reduction Request (Medicare coverage and 

payment in a single form) – Due 11/6/212 

2. OPM certification of Qualified Health Plans – Due 10/22/12 

Current issues include: 

1. Indian Addendum plus companion piece explaining Addendum. 

(completed and forwarded to CCIIO) - TTAG to request an update from 

CCIIO on the status of internal clearance.. 

2. Tribal Sponsorship 

3. Other topics will be prioritized as high impact, high value topics. 

4. Draft response to Data Elements for application to support eligibility 

determinations for enrollment in exchanges, Medicaid and CHIP 

5. TTAG to request schedule and process for dealing with open issues 

on single enrollment form exchanges and Medicaid (including how 

CMS is dealing with process for vetting with other groups. 


Ref. 

# 


7. Strategy for ACA 

Legislative Issues 

following Supreme 

Court Decision 

8. Strategy for moving 

forward on determining 

eligibility for Health 

Insurance Exchange 

Applications (Definition 

of Indian) 

MMPC 

Myra Munson 

Jennifer Cooper 

Elliott Milhollin 

MMPC 

ACA Policy 

Committee 

NIHB 

NCAI 

NCUIH 




Due Date/ 

Timeline 


July 2012 Consideration of possible 

legislative fixes to ACA 

On-going Need to monitor actions 

being taken by CMS 



Following the Supreme Court decision that removed the penalty for States to 

courage the Medicated Expansion, there may be a legislative fix and the MMPC 

might want to develop a list of other items that would like to be included in any 

legislation. The following issues were preliminary identified: 

(a) definition of Indian; (b) CHSDA for purchasing services; (c) Section 206; (d) 

Qualified Health Providers; ( e) dental health Section 119; and (f) other 

technical corrections. 

Next Steps: 

1. Create MMPC workgroup to identify areas that need to be fixed and 

develop technical corrections. 

2. Develop a list of all the issues (Broad brush picture). 

3. Fix when there is an opportunity. 

TTAG formally submitted recommended questions to be included in the Exchange 

applications to determine who is eligible for benefits and protections. This was 

narrowed down to 1 question, but no feedback from CMS has been received. 

No final rule has been published. There are concerns with waiting for definition and 

that it might be narrowly defined. States are currently writing code and it could be 

too late to address services for AI/AN. 

Need to develop a broader strategy and next steps. (National organizations to 

take the lead, NIHB, NCAI and NCUIH.) 


Ref. 

# 


9. Strategy to engage 

CMS & IRS Re: Health 

Exchanges and 

Medicaid Expansion 

10. Tribal Hospital EHR 

Charity Care 

Calculation 

Mim Dixon 

Jim Roberts 

Ron Allen 




Due Date/ 

Timeline 


On-going Continue to advance 

priorities identified by 

MMPC 

Myra Munson On-going Respond to latest set of 

questions from CMS 



IRS Representatives Jonathan R. Damm & Telly J. Meir, Tax Law Specialists, Office 

of Indian Tribal Government met with the MMPC representatives at the face-to-face 

meeting on 2/21/12; and again on 7/24/12. IRS issued final rule on May 23, 2012. 

Many Tribal recommendations were rejected. MMPC inquired on practicial 

implementation issues, including: 

What is the process for implementation and how will they coordinate 

with HHS? 

How will they determine who is AI/AN? 

How will Tribes be consulted? Tribes want an opportunity to be 

consulted before a final decision is made. 

IRS reps responded that a complicated flow chart to outline the process has been 

developed; and they’re working within the timeframes established in the ACA. They 

appreciate the need for on-going communication with Tribes; and IRS follows the 

Dept. of Treasury’s consultation policy. They are also informally communicating 

with Tribes through outreach in meetings and request for written comments. 

Follow up: 

1. Invite IRS reps to NIHB Annual Consumer Conference. 

2. IRS urged Tribes to continue to communicate in writing on issues of key 

concern and Tribal recommendations. 

3. Tribes recommended that a TTAG subcommittee be identified to work with 

IRS on these issues. (Send follow up email and/or letter with this 

recommendation.) Meeting held with Christie Jacobs in Denver 

during the ACC meeting. 

4. Need to develop an IRS Outreach and Education Plan. 

Conference calls are continuing. Technical Workgroup needs to re-write and finalize 

response. Myra will finalize prior to the November 2012 TTAG meeting. 


Ref. 

# 

11. 


VA/IHS Draft 

Reimbursement 

Agreement 

13. Coordination with OPM 

on Multi-State 

Exchange Plans 

14. Coordination with OPM 

on implementation 

issues regarding FEHB 

and FEGLI 

MMPC 

Stacy Bohlen 

Elliot Milhollin 

NIHB 

MMPC 

NIHB 

NCAI 

MMPC 




Due Date/ 

Timeline 




On-going Need to Identify next 1. Alaska has finalized and entered into Agreements; some provisions are 

steps for Advancing 

different than the draft VA/IHS Reimbursement Agreement that was 

Agreements between VA circulated for Tribal comment. 

& IHS/Tribes 

2. VA consultation held during NIHB ACC. The Tribal Self-Governance 

Advisory Committee sent a follow up letter regarding comments on 

Negotiation of Participating Tribal Health Program Agreements with Local 

VA Facilities NIHB to send letter similar and to include clarification 

regarding rates. 

On-going On December 20, 2011, a small group of MMPC members met with OPM, including 

Susan McNally, the Assistant Director of National Healthcare Operations, John 

Cutler, the team leader for the Multi-State Plans Program, Kay Pestura, Deputy 

Direct for National Healthcare Operations, and Florence Jackson, who works for Ms. 

McNally and Ms. Pestura. OPM is not as far along as CCIIO in implementing 

Exchange plans, and is in the beginning stages. They are in the pre-consideration 

phase of rulemaking, and were unable to provide much in the way of specifics. 

MMPC provided an overview of some of the most pressing issues, including 

inclusion of ITU providers in any multi-state exchange plan, inclusion of the Indian 

addendum, etc. Ms. McNally indicated that OPM is very interested in hearing from 

Tribes on what they would like to see in a multi-state exchange plan. 

On-going Continue outreach and The first effective date of coverage began May 1, 2012. Tribes, Tribal organizations 

education efforts on and urban Indian organizations may also purchase FEHB coverage effective after 

FEHB implementation. this date. OPM and NFC are also working with a Tribal Technical Work Group to 

finalize operational details related to the program. This Work Group is comprised of 

individuals from Tribes, Tribal organizations and urban Indian organizations of 

various sizes and geographic locations. For more information, please see 

www.opm.gov/tribalprograms 

1. As of June 2012, OPM reported approximately 30 Tribes covering 

approximately 3,000 Tribal employees are now covered. OPM is continuing to 

provide training and detailed information regarding the roll-out of the FEHB 

program implementation. They are also developing policy handbooks and draft 

guidance. Final guidance will be completed when regulations are complete. 


Ref. 

# 


15. Evaluation of ARRA 

5006 Implementation 

16. 

MMPC Staffing and 

Funding 

Carmelita Skeeter 

MMPC 

Stacy Bohlen 

Jim Roberts 

(Budget 

Subcommitte) 




Due Date/ 

Timeline 


On-going TTAG to recommend to 

CMS to conduct an 

evaluation of ARRA 5006 

implementation. 

On-going Seek both short and longterm 

resources to support 

MMPC efforts. 



2. Additional outreach and education with Tribes is needed. OPM plans to release 

a Dear Tribal Leader letter in the near future to address some of the questions 

and concerns raised during the initial trainings. 

3. New guidance for Tribal employers was provided by OPM; identifies what types 

of benefit packages have been included. 

Recommend state-by-state evaluation; include survey with State Medicaid Directors, 

Tribes, Regional Health Boards and other organizations. 

1. Develop and prepare a budget identifying staffing and financial resources 

needed, including: 

a. Full time regulation review staff (short-term funding identified for 

regulation review through September 2012) 

b. Dedicated NIHB staff for coordination of MMPC/TTAG activities, including 

staffing and facilitation. 

2. Encourage IHS to build capacity and resources (IHS benefits from this work) 

3. Seek private sector funding: 

a. Identify potential foundation funding, e.g. Kellogg, Robert Wood Johnson, 

etc. (Stacy) 

b. Other outreach 


Ref. 

# 

17. 

III. LONG-TERM SERVICES AND SUPPORT 





Due Date/ 

Timeline 


Long Term Care MMPC On-going Continue to monitor 

activities and resources 

available under the 

ACA/IHCIA. 



IHS LTC & Behavioral Health experts have been meeting regularly. 

1. LTC Subcommittee is working with KAI regarding coordination of the upcoming 

Long Term Care Support and Services Conference to be held March 21-23 in 

Denver. 

2. LTC Subcommittee is drafting comments in response to IHS Director, Dr. 

Roubideaux’s January 6, 2012 Dear Tribal Leader letter requesting comments 

on the recommendations from the previous LTC conference and report. Draft 

comments have been shared with the MMPC. Comments were submitted on 

March 16, 2012. 

3. LTC Subcommittee is planning a conference call with Anita Yuskauskas to 

discuss “Money Follows the Person” initiative. Conference call to be 

scheduled with the Long-Term Care Committee. 


IV. OUTREACH AND EDUCATION 




Ref. 

# 


Due Date/ 

Timeline 




18. Outreach and 

MMPC On-going Regional Trainings NIHB/NCAI/NCUIH conducted a survey and gathering information for their website. 

Education 

Targeted groups include (1) tribal governments; (2) tribes as providers; (3) area 

health directors; and (4) consumers. It was reported that all information must be 

vetted by IHS. Information is currently being developed and area health boards; and 

MMPC/TTAG is encouraged to provide their input on these educational materials. 

Need TTAG involvement in identification of materials, projects and other 

contractual work being developed. 

19. Engaging with States 

on Planning for Health 

Exchanges (including 

those not involved in 

planning efforts.) 

20. 

State Associations 

(and other related 

Websites) 

MMPC 

NIHB 

MMPC 

Tyra Baer 

On-going 1. Seek resources for 

outreach and 

education activities. 

2. Establish Planning 

Group for 

Consultation 

On-going Seek funding to provide 

for posting of AI/AN 

Issues. 

1. Recommendations included: 

a. Development of Toolkit for Tribal leaders, health providers, and community 

beneficiaries. 

b. Development of Navigators. 

c. Have NIHB develop and complete a list of what is occurring at state level. 

d. Request and identify a representative from each state to work with NIHB 

on a standard format and process. 

e. Post the Indian addendum on the R(e)form website. 

f. Continue to share what is happening across states. AZ/NM have 

established working group which include Tribes. 

g. NIHB/NCAI are launching on a new website. Draft materials will be 

presented the end of March 2012. 

MMPC recommended that funding be sought to provide for AI/AN issues as part of 

the State website for Health Exchange Planning. 

Websites related to MMPC issues on NIHB website on MMPC link: 

http://www.nihb.org/mmpc/ 


Ref. 

# 


21. Create TTAG project on 

new payment 

structures, I/T/U 

analysis and outreach 

to Tribes 

22. Follow up with Office 

of Innovation at CCIIO 

RE: ACA provisions 

that identify IHS 

23. Waivers/Exemptions 

for AI/AN from 

Medicaid Cuts 

24. Indian Eligibility in 

State Basic Health 

Plans 




Due Date/ 

Timeline 

MMPC New Issue 

July 2012 




To be discussed and addressed MMPC Face-to-Face Meeting. 

MMPC July 2012 CCIIO Office of Innovation participated at the July 25, 2012 TTAG meeting. 

Issues to be clarified included: 

Jim Roberts 

Jim Crouch 

On-going Re-convene Benefits 

Options Workgroup 

MMPC On-going Identify preliminary 

comments for MMPC 

review 

1. What is the plan to put money into Indian Country for Projects in the 

following three areas: 

Tele-health 

Behavioral health 

Unique Providers 

2. Need to ensure there is culturally appropriate evaluation criteria 

included in the process. 

Share WA State concept paper (NPAIH) and CRIHB’s work with California with the 

Workgroup. 

Request made to CMS to make available, upon requests by Tribes in States, all 

pending waiver requests. 

Waivers on posted on CMS website, but the documents are not accessible when 

trying to access. 

Need to review and determine Indian eligibility and how it will be defined in Basic 

Health Plans. 

HHS Secretary sent letter to state insurance commissioners to consult with Tribes 

on Medicaid and Exchanges. Need to ensure that states are also consulting with 

Tribes on BHPs that address that 133%-200% federal poverty level. 


Ref. 

# 


25. Medicaid 

Administrative Match 

(MAM) 

26. Update Strategic Plan 

27. 




Due Date/ 

Timeline 


MMPC On-going Need to develop 

advocacy at State-level 

Jim Roberts 

Mim Dixon 

MMPC 

Nov 2012 NPAIHB taking lead on 

the development of an 

updated Plan 

Behavioral Health Linda Frizzell On-going Continue to monitor 

activities and resources 

available under the 

ACA/IHCIA. 



More education is needed for Tribal health programs. Need to work with CMS to 

provide support for MAM agreements. MMPC recommended: 

1. Hold Workshop at NIHB Annual Consumer Conference. 

2. Conduct Regional Trainings 

3. NIHB Area Association Meeting 

1. Status of Draft Plan, and Schedule and Process for Completion (Subcommittee 

has met in person and held several teleconferences) 

2. Conducted interviews of CMS representatives and identified initiatives for TTAG 

to consider. 

3. Met with Michael Hash – CCIIO 

4. Draft presented at NIHB Annual Consumer Conference in Sept 2012. 

5. NIHB shared through their distribution lists, TTAG, MMPC and current 

draft is out for 30 day comment. Comments due on October 30, 2012. 

6. Final report to be presented for review at the November 2012 TTAG 

meeting. 

Recommendations: 

Integrate Strategic Plan Issues into CMS Operations for easier tracking. 

Conduct at least 1 TTAG meeting/annually at CMS Headquarters in 

Baltimore. 

The various HHS agencies responsible for implementation should assure that the 

Indian health system and Indian people have a fair opportunity to benefit from ALL 

behavioral health provisions in the new law. 

Most recent work of Subcommittee has revolved around the Essential Health 

Benefits package. 


Ref. 

# 

V. DATA 


28. Data MMPC 

Jim Crouch 




Due Date/ 

Timeline 


On-going Review on-going issues 

regarding Policy and 

Data 



TTAG letter was sent to CMS Acting Administrator Marilyn Tavenner on April 

10, 2012 summarizing the concerns related to the implementation of the 

National Data Hubs by CMS and recommendations. 

Other recommendations: 

1. Form Tribal/CMS Workgroup on Policy and Data Issues (CMS committed to 

forming this Workgroup.) 

2. Advise CMS Office of Enterprise Management on having appropriate AI/AN 

identifiers and making data useful of AI/AN and I/T/U on CMS website being 

developed 

3. Medicaid data project ended June 30 to expand State data from 400 to 1,000 

data elements with no Tribal consultation, but States will be submitting State 

Plan Amendments to change their data and this will require Tribal consultation. 

We need to prepare Tribes for this consultation and discuss enforcement with 

CMS. States in the pilot project with Tribes include: WA, OR, CA, MN, AX, MI, 

NM, NC and TX. 

4. Health Disparities Data on a national basis for AI/AN. The IHS discontinued the 

Trends reports in 2007 and the data from the last report is getting too dated to 

be reliable. 

5. Data report from Jim Crouch/Carol Korenbrot to be reviewed at the MMPC 

November 2012 face-to-face meeting. 

Need to continue tracking all these items 2-4 listed above. 


MMPC October 9, 2012 Teleconference Agenda Notes 

Roll Call: Liz Heintzman, Myra Munson, Rhonda Butcher (IHS), Jennifer Cooper, John Stevens, Sam Ennis, 

Mim Dixon, Trevelyn Cross, Jay Stiener, Doneg McDonough, Carmealita Skeeter, Phil Norrgard, Jessica 

Imotichey, Elliot Milhollin, Jim Roberts, Anthony Yepa, Sherri Varner (IHS), Tammy Clay (IHS), Tom 

Gordon, Carol Chicharello, Don Wright, John Rael, Judy Parker, Trevlyn Cross Jim Roberts, Ed Fox, Jessica 

Imotichey, Gerald Moses, Dee Sabattus, Diddy Nelson, Valerie Davidson, Doneg McDonough, Sam Ennis, 

Myra Munson, D’Shane Barnett, Mim Dixon, John Stephens, and Jim Crouch met with John Dann and 

Christie Jacobs from IRS. 

Facilitator: Cyndi Ferguson 

1. Update on meeting with IRS during the NIHB ACC Conference 

Items discussed: 

To do List: 

-Indian definition 

-Identify a path to call on Treasury Secretary and HHS Secretary to collaborate together for IHS 

essential coverage 

-Advanced premium tax credit-can be split between health plan and dental plan? 

-MAGI-resource exemptions are consistent with Medicaid’s 

-Outreach-what will IRS be doing with the requirements/responsibilities and how related to 

Indian country 

-tribal representatives suggest that IHS database should be used for electronic identification for 

coverage-Christi said those discussions are just starting now 

-Organize a Tribal meeting during the NCAI Conference to be held in Sacramento later this 

month*will report later (Jim Roberts and Ron Allen are setting this up) 

-Provide recommendation to have Christi join in on TTAG ACA subcommittee call with Pete from 

CCIIO 

Questions still to be answered: 

What extent can taxpayers assign a refund to someone else (prove the like-hood that tribe could 

subsidize into the exchange)? Individual can apply 100% tax credit to purchase insurance in exchange or 

use portion?

-Oregon has a provision in the insurance system to make the individual put 100% tax credit into 

exchange for tribes to help sponsor payment to the health plan 

-Christi said that IRS can’t pose a requirement because that is an Individual right 

2. Update on Companion Piece to Indian Addendum 

To Do List: 

-Has been finalized and gone through CCIIO internal review process 

-Oregon is making an addendum; and would like to use it if the federal addendum is not as 

good; but if it is, want it to be the threshold 

-Pete wants to have a meeting with insurance issuers with Tribal representation- 

-Need tribal consultation after the review process 

3. Update on TTAG Strategic plan: 

To Do List: 

-new version of the draft for 2013-2017; retained objectives from last one with additional items 

TTAG presented at NIHB conference and distributed copies through NIHB distribution lists and 

website, and shared with TTAG members of region and area health board; 30 day comment 

period with comments due by October 30, 2012. 

Plan to be finalized and formally approved by the TTAG during the November face-to-face 

meeting. 

-Incorporate any changes by November Face to Face TTAG meeting for adoption and 

implementation by new election 

*send another email to TTAG about commenting on strategic plan for next week 

4. Update on Single Enrollment Form for Exchanges/Medicaid, including Tribal Sponsorship 

-There is no reference for tribal sponsorship on application itself-no direct tie 

-problem in explanatory: core item is wrong that AI/AN can qualify for extra tax credits if they 

hold premiums in advance (no mention about cost sharing-got it backwards) 

-enrollment form includes categories and subcategories if you are AI/AN 

5. Update on Tribal Hospital EHR Charity Care Calculation

To do List: 

-Myra will have draft by the 3 rd week; goal to have it done by November face to face meeting 

6. Update on CMS/IHS Process for Electronic Verification Process 

7. Medicaid expansion and exchange update 

-reg. side on expansion-state questions wanting to know if they can go to 100% instead of 133% 

-feedback won’t come back until after election 

8. Update on VA Reimbursement Agreement Consultation 

To Do List: 

- Self advisory group sent a letter for Medicare reimbursement that only includes Medicare for 

all in exclusive rates because of lower reimbursement rate 

-VA said won’t use Medicaid for all in exclusive rates because it is a system issue and would be a 

delay in processing Tribal claim; more quick to handle Medicare rates; concerned about error 

rates/budget 

*NIHB to see a similar letter as the Tribal Self-Governance Advisory Committee and to include 

clarification regarding rates 

*Myra Munson agreed to circulate the letter sent by Alaska representatives 

Regulations Review and Update 

RRAR updated through August, 15, 2012; circulated right before ACC 

Upcoming Regulations and Comments: 

Comment to CMS #10003—paperwork reduction request (Medicare coverage and payment into one 

form; could pertain to section 206; need to look at what form means and what it could do for AI/AN, 

due on Nov 6 th 

OPM comment regarding certification of qualified health plans due October 22 

To Do List and Items to Include for Next Meetings: 

October 10 th TTAG call: 

Request Update from CCIIO on (1) Status of Internal Clearance on Indian Addendum and 

Companion Piece; and (2) Timing on Response to Tribal Recommendations and Comments on 

the Federally-Facilitated Exchanges

-Request Schedule and Process for dealing with open issues on Single Enrollment Form for 

Exchanges and Medicaid (including how CMS is dealing with process for vetting with other 

groups) 

-Status of letter to Tribes (development of CMS Template) for outlining process at state level for 

those Tribes not moving forward with Medicaid Expansion-Jim Roberts 

TTAG November Face-to Face Meeting 

-Invite Gary Cohen 

-Invite OIG to report and present on Safe Harbors and Medicaid Collections 

-Take final action and approval of Strategic Plan 

-Discussion on working with states on exchanges and Medicaid expansion 

MMPC November Face-to-Face Meeting: 

-Request Data Report from Jim Crouch/Carol Korenbrot and review/discuss findings 

-Invite OPM (coordinate with Elliott)

Internal Revenue Service Meeting Notes 

Denver, Colorado Meeting 

September 25, 2012 

Participants: Christie Jacobs, Jonathon Damm, IRS 

Jim Roberts, Ed Fox, Jessica Imotochi, Gerald Moses, Dee Sabattus, Diddy Nelson, 

Valerie Davidson, Doneg McDonough, Sam Ennis, Myra Munson, D’Shane Barnett, Mim 

Dixon, John Stephens, Jim Crouch 

1. Health Insurance Penalty Exemption Discussion 

a. We covered definition issue and strategy to align. IRS not much to do here aligning ACA 

with Medicaid. This is HHS. 

o IRS seemed agree that the three statutory references to def. of Indian under ACA 

are the same, including under IRC § 45(A)(c)(6). 

o For IRS, their primary concern seemed to be, after comparing the ACA-referenced 

definitions to the Medicaid reg., is that non-Federally recognized tribes would be 

included under the Medicaid reg., if used. 

b. Tax Penalty 

o There may be administrative authority by Treasury Secretary and HHS Secretary to 

grant IHS coverage as meeting “essential coverage” pursuant to Treasury regulation. 

But it will take collaboration and agreement of both Secretaries. Doneg had citation 

in Treasury reg....Section 5000(A)(f)(1)???? 

o This request would apply only to the tax penalty and not eligibility for the APTC. 

o TTAG should draft a letter to this effect requesting that Secretaries act on this. 

2. Identification of Indians: IHS data base of users 

a. It was mentioned to IRS staff that the HIS-maintained database for users is an important 

mechanism to more easily identify AI/AN 

b. The fact that not all IHS eligibles are captured in the database should not mean that the HIS 

database not be used. 

c. Christy stated that “discussions are just starting on how this [identification of AI/AN] is going 

to work.” 

3. MAGI 

a. Chart that IRS and CMS are working on this. They have created a chart with the Indian 

exemptions for each of the programs. There are only one or two items that are not on the 

IRS exemption list. Aside these, most exempt items for IRS & CMS are the same. If IRS 

exempts Indian income, it will not collect information about the income that is exempt. The 

two items still under discussion are: 

i. Education costs and the BIA 

ii. Per capita distributions 

b. These items are also under discussion with regard to the General Welfare guidance that 

Treasury is preparing with regard to Tribes and tribal members. 

c. Follow up item: Can we get a copy of the chart? 

4. Tribal Sponsorship/APTC items

a. RE: premium subsidies and applying full APTC for purpose of Tribal sponsorship. Up to 

individual and IRS may not impose any requirements on how individual uses. 

b. When asked whether APTC could be split between a medical plan and a dental plan, Christy 

said she didn’t know. Doneg noted that HHS is responsible for issuing guidance re APTC for 

pediatric dental plans. 

c. Myra asked whether IRS could enter into assignment agreements whereby people who 

accept tribal sponsorship for payment of health insurance premiums can have any 

underpayment of premium tax credits paid to the sponsoring organization. IRS was not 

enthusiastic about the chances of this happening because IRS only uses this for limited 

situations and Christy thought the Tribe might not be the right kind of entity to qualify for 

assignment of tax refunds. 

d. John Stephens asked whether over or under recovery of APTC at the end of the year could 

be moved to the following year’s taxes. Christie responded that they couldn’t let it ride to 

the next year without interest. John was very effective in making the point that it will only 

take one tax bill for one person to end tribal sponsorship. Jim Roberts commented that 

Washington State was working with tribes on an aggregator model for tribal sponsorship, 

but it may not work due to assignment of tax credits. He asked if IRS was working with 

states on this. Christy said IRS isnot working with States. 

e. 

f. Follow up item: IRS is to send us the section of the tax code that applies to similar 

assignment so that Tribal policy wonks can determine if there is some application here that 

can be used for Tribal sponsorship. 

5. IRS Form 1040 

a. Christy indicated that IRS will want to consult with tribes on the question(s) put on Form 

1040 

b. We mentioned that TTAG submitted recommendations on a “single question” to ask 

c. It seems we should resend the old TTAG recommendations to Christy/IRS, or send a revised 

recommendation if preferred. 

6. IRS Outreach & Education 

a. IRS does plan to have special outreach to AI/AN, with an increase in outreach activities in 

2013. IRS is tied into the overall O&E campaign of HHS. IRS not in position to conduct 

outreach until final rules & decisions are in place. 

b. Voluntary tax assistance centers. There are tribal sponsors for these centers now and IRS 

expects to use them for ACA. 

i. Follow-up Item: How can Tribes become Voluntary Tax Assistance centers if they 

are not? Can IHS/Tribal benefits coordinators be trained to provide this assistance? 

Non-tribal sites will need special training about tribal benefits and sponsorship; how 

will this happen? 

c. In IRS all training is now electronic. Christie recognizes the need for face-t0-face, small 

group training for Tribes, but she says that the IRS needs to hear this from Tribes. 

d. Follow-up item: Tribes should send letter to IRS Commissioner and Sec of Treasury with cc 

to Christy. 

e. Christie recommended that we stay in touch with her about such issues as they become 

more clear in the coming months. 

f. Who do we direct our advocacy to? Normally the Deputy Secretary is responsible for Tribal 

issues however position is vacant (Aaron Kline left, but someone else checks in mailbox)

with a “interim/acting”. Can always direct information to IRS Commissioner, with copy to 

Christie Jacobs. 

g. John Stephens asked whether a person had to file taxes previously in order to apply for 

APTC through the Exchange. Christy said she didn’t know the answer to that question. 

7. Recommendation to form IRS-Tribal Workgroup 

a. The Department of Treasury Tribal Consultation Policy is on their website on a Tribal page. 

The Department of Treasury does not seem willing to have IRS Advisory Groups. 

b. Christie will check with Pete Nakata to see if they can combine this effort. She didn’t seem 

willing to do something different than the ACA Policy Subcommittee meetings that we have 

with CCIIO. Christie preferred to site in on the CCIIO meetings and use that venue if she 

needs to engage on Tribal issues. She will get back to us.

I. Purpose. 

DRAFT EXPLANATION OF ADDENDUM 

FOR INDIAN HEALTH CARE PROVIDERS TO NETWORK PROVIDER 

AGREEMENTS OF HEALTH PLANS OFFERING PRODUCTS ON 

HEALTH INSURANCE EXCHANGES 

CMS has developed the attached Addendum for Indian Health Care Providers to promote 

inclusion of Indian health care providers in qualified health plan (QHP) provider networks and 

help health insurance issuers develop health plans that comply with the QHP certification 

standards set forth in 45 CFR Part 156. Based upon a similar standardized contract addendum 

used in the Medicare Part D program, this addendum has been developed for QHP issuers to use 

when contracting with Indian Health Care Providers. 

The federal government has a historic and unique relationship with American Indian and Alaska 

Native (AI/AN) tribes. The purpose of this addendum is to further the aims of the Federal trust 

responsibility by fostering participation of Indian health care providers in QHP networks, and 

help issuers meet QHP certification standards, particularly with respect to network adequacy and 

access to essential community provider participation. In adhering to QHP certification standards, 

QHP issuers will need to reach out to Indian health care providers in many parts of the country. 

It is anticipated that the addendum will assist health plans meet the “sufficient number and type 

of provider” criterion required for QHP certification, and will facilitate acceptance of network 

contracts by Indian health providers. 

Most AI/AN people access care through their longstanding providers in the Indian health system. 

As a result, an important consideration in evaluating network adequacy and essential community 

provider accessibility will be the extent to which a QHP includes Indian providers in their 

networks and whether it can assure that services to AI/AN consumers will be accessible without 

unreasonable delay. 

Offering contracts that include the Addendum will provide QHPs with an efficient and effective 

way to establish network contract relationships with Indian Providers, and also ensure that 

American Indian and Alaska Native consumers can continue to be served by their Indian 

provider of choice. Indian tribes are entitled to special protections and provisions under Federal 

laws, which are described further in Section II. 

The addendum identifies specific provisions that have been established in Federal 

law that apply when contracting with Indian Health Care Providers (i.e. I/T/Us). Use of this 

Addendum benefits both QHPs and the Indian Providers by lowering the perceived barriers to 

contracting, assuring QHP issuers comply with key Federal laws that apply when contracting 

with Indian providers, and minimizing potential disputes. AI/ANs consumers will be better 

served if their QHP encourages Indian providers to coordinate their care through the QHP 

network. 

8/7/12 DRAFT COMPANION TO ADDENDUM – PAGE 1


II. Explanation of the Addendum for Indian Health Care Providers 

1. Purpose of Addendum 

Building on the success achieved in the Medicare Part D program, this Addendum for Indian 

Health Care Providers has been developed for use in Exchange’s Qualified Health Plan 

network contracts with Indian Health Care Providers. . 

2. Definitions. 

The definitions of terms used in the Addendum relate to federal laws. 

3. Description of Health Care Provider. 

This addendum can be used with different types of Indian health providers. This section gives 

the opportunity to check the provider type that applies to the specific organization or facility 

which is covered by the contract or agreement. 

4. Cost-Sharing Exemption for Indians; No Reduction in payments. 

Section 1402(d)(2) of the ACA provides that QHPs may not impose any cost-sharing on AI/AN 

plan enrollees and may not reduce payments to an Indian Health Care Provider or contract health 

services provider that would otherwise be due. The ACA directs the Secretary of HHS to 

reimburse issuers for the increase in the actuarial value of the plan due to these costs. 

5. Persons eligible for items and services from Indian Health Care Provider. 

This section of the Addendum protects the QHP from charges of discrimination if the I/T/U 

provider sees only people who are eligible IHS beneficiaries. Indian health programs are 

generally not open to the public; they are established to serve AI/ANs, as provided in the IHCIA. 

The applicable eligibility rules are generally set out in IHS regulations at 42 C.F.R. Part 136. 

IHCIA §813 (25 U.S.C. §1680c) sets out the circumstances under which certain non-AI/ANs 

connected with an AI/AN (such as minor children or a spouse) can receive services as 

beneficiaries. IHCIA § 813 also authorizes services to certain other non-AI/ANs if carefully 

defined requirements are satisfied. 

6. Applicability of other Federal laws. 

This section identifies a number of Federal laws that apply variously to IHS, Tribal health 

programs, and urban Indian programs. These laws are briefly described here. 

Anti-Deficiency Act, 31 U.S.C. §1341. This law applies to the Indian Health Service as a 

Federal agency. It prohibits agency personnel from obligating the expenditure of Federal 

funds in excess of appropriations made by Congress. 

8/7/12 DRAFT COMPANION TO ADDENDUM – PAGE 3 

Comment [A1]: Something to consider – in the 

interest of brevity, should we just include a 

description of selected provisions which require 

clarification? 

RESPONSE – If a summary of only certain 

provisions is to be included, then perhaps only the 

provisions listed in Section 6 could be included.

Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. §450 et 

seq. This law directs the Secretary of HHS, at the request of an Indian tribe, to enter into 

a contract or compact with a tribe, a tribal organization, or an inte- tribal consortium to 

operate Federal health programs for Indians with the funds the Indian Health Service 

would have otherwise used to carry out the program directly. It is through this law that 

many Indian tribes and tribal organizations have taken over direct operation of health 

programs from IHS. 

Federal Tort Claims Act (FTCA), 28 U.S.C. §§2671-2680. This law waives the United 

States’ sovereign immunity from suit with regard to the torts enumerated in the FTCA, 

and is the exclusive remedy for suits against Federal agencies such as the Indian Health 

Service. Congress extended the FTCA to cover Indian tribes and tribal organizations 

operating Federal programs pursuant to contracts or compacts under the ISDEAA. 25 

U.S.C. §450f note. Urban Indian organization health providers who acquire FQHC status 

under Sec. 224 of the Public Health Service Act can acquire FTCA coverage pursuant to 

the Federally Supported Health Centers Assistance Act. Since a claim under the FTCA is 

the exclusive remedy for actions against Indian health care providers that are covered by 

the FTCA, those entities are not required to obtain professional liability insurance. 

Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. §§2651-2653. This law 

authorizes Federal agencies, including the Indian Health Service, to recover from a 

tortfeasor (or an insurer of a tortfeasor) the reasonable value of health services furnished 

to a tortfeasor’s victim. The right of recovery under the FMCRA extends to Indian tribes 

and tribal organizations operating ISDEAA contracts and compacts. 25 U.S.C. 

§1621e(e)(3). 

Federal Privacy Act, 5 U.S.C. §552a and regulations at 45 C.F.R. Part 5b. This law and 

its regulations apply to the IHS, and to Indian tribes, tribal organizations and urban Indian 

organizations that operate Federally-funded health care programs. The Privacy Act 

governs the use and disclosure of personally identifiable information about individuals 

that is maintained in a federal records system. 

Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. Part 2. These 

regulations restrict disclosure and use of drug abuse patient records that are maintained in 

connection with the performance of any federally assisted alcohol or drug abuse program. 

The restrictions would apply to any such records maintained by the IHS, an Indian tribe, 

tribal organization or urban Indian organization. 

Health Insurance Portability and Accountability Act (HIPAA) regulations at 45 C.F.R. 

Parts 160 and 164. These regulations restrict access to and disclosure of protected health 

information maintained by the IHS, Indian tribes, tribal organizations and urban Indian 

organizations. 

Indian Health Care Improvement Act (IHCIA), 25 U.S.C. §1601 et seq. This law supplies 

the comprehensive statutory framework for the delivery of health care services to Indian 

people. It applies to all Indian health providers – the IHS; Indian tribes and tribal 

organizations operating ISDEAA contracts and compacts from the Secretary of HHS; and 


urban Indian organizations that receive grants from IHS under Title V of the IHCIA. 

Specific provisions of the IHCIA that would impact contracts between Indian health care 

providers and QHPs are cited in various provisions of the Addendum. 

7. Non-taxable entity. 

Because of provisions in federal law, QHPs may not require Indian Health Care Providers to 

collect or remit any federal, state or local taxes. 

8. Insurance and indemnification. 

The IHS, Tribes and Tribal Organizations and Urban Indian Organizations that qualify are 

covered by the FTCA. Since a claim under the FTCA is the exclusive remedy for actions against 

Indian health care providers that are covered by the FTCA, those entities are not required to 

obtain professional liability insurance. 

9. Licensure of Health Care Professionals. 

This section safeguards a QHP from state licensing requirements for health care 

professionals with respect to Indian providers. IHCIA §221 (25 U.S.C. §1621t) permits an 

Indian tribe or tribal organization to employ a health care professional who is subject to licensure 

if that individual is licensed in any state. Employees of the IHS obtain their “licensed in any 

state” status through other Federal law. 

10. Licensure of Provider, eligibility for payments. 

This provision waives QHP requirements for State licensing of facilities. IHCIA §408 (25 

U.S.C. §1647a) deems a health program operated by the IHS, an Indian tribe, tribal organization 

or urban Indian organization to be licensed under state or local law if it meets all requirements 

for such license regardless of whether it obtains such a license. 

11. Dispute Resolution. 

This provision provides that the Indian Health Care Providers agree to meet and confer to resolve 

any dispute in good faith, and that any disputes that cannot be resolved in good faith will be 

subject to the laws of the United States . The IHS and Tribes are generally not subject to State 

laws, and may only be subject to binding arbitration if specifically authorized by law. 

12. Governing Law. 

Tribes are generally subject to Federal law. This provision states that the QHP agreement and 

the addendum shall be governed by Federal law., and that nothing in the agreement shall subject 

an Indian tribe, tribal organization, or urban Indian organization to State law to any greater 

extent than State law is already applicable. 

13. Medical Quality Assurance Requirements. 


Comment [A2]: Because of….. 

Comment [A3]: Because of…..(federal law?)

Under federal law, There are privacy rules governing quality assurance for the I/T/U that must 

be considered as requirements are imposed by the QHP. IHCIA §805 (25 U.S.C. §1675) 

facilitates internal medical program quality reviews; shields participants in those reviews; and 

restricts disclosure of medical quality assurance records. This provision applies to the IHS, 

Indian tribes, tribal organizations and urban Indian organizations. 

14. Claims Format. 

An I/T/U may use a claims format offered by the QHP, or it may submit claims in a format that 

is consistent with Medicare claims. IHCIA §206(h) (25 U.S.C. §1621e(h) prohibits insurance 

carriers from denying a claim submitted by IHS, an Indian tribe or tribal organization based on 

the format on which the claim is submitted if the format complies with the Medicare claims 

format requirements. 

15. Payment Rate. 

IHCIA §206(a) and (i) (25 U.S.C. §1621e(a) and (i)) provides that the IHS, an Indian tribe, tribal 

organization and urban Indian organization have the right to recover the reasonable charges 

billed, or, if higher, the highest amount an insurance carrier would pay to other providers. This 

Addendum provision states that a QHP must pay claims to the I/T/U according to IHCIA Section 

206 except to the extent the Indian Health Care Provider expressly agrees in writing to accept rates or 

amounts specified in [specify payment schedule here] as payment in full, except that such rates or 

amounts may not be lower than the Qualified Health Plan pays to any of its other preferred or in-network 

providers . 

16. Hours and Days of Service. 

QHP may not require the I/T/U to provide services at times they would not otherwise provide 

services for the IHS beneficiaries. For example, some I/T/U clinics are open only a few days a 

week and some do not provide 24-call. 

17. Sovereign Immunity. 

Becasuse tribes are soverign governments, This provision provides that nothing in the agreement 

shall constitute a waiver of federal or tribal sovereign immunity from suit. 

18. Endorsement. 

IHS providers and employees are prohibited from officially endorsing any non-federal entity. 

This provision ensures that no such endorsement is implied by signing the agreement. 


Comment [A4]: State the basis. Can we hook to 

some federal provision?

Appendix A. I/T/U Programs in Each State 


1. Purpose of Addendum; Supersession. 

DRAFT 

Addendum for Indian Health Care Providers 

The purpose of this Addendum for Indian Health Care Providers is to apply special terms and conditions 

necessitated by Federal law and regulations to the agreement by and between ______________________ 

(herein "Qualified Health Plan") and ___________________________ (herein "Indian Health Care 

Provider"). To the extent that any provision of the Qualified Health Plan's network provider agreement or 

any other addendum thereto is inconsistent with any provision of this Addendum for Indian Health Care 

Providers, the provisions of this Addendum for Indian Health Care Providers shall supersede all such 

other provisions. 

2. Definitions. (NOTE: NEED TO CHANGE THE ORDER TO BE ALPHABETICAL) 

For purposes of the Qualified Health Plan's agreement, any other addendum thereto, and this Addendum 

for Indian Health Care Providers, the following terms and definitions shall apply: 

(a) "Qualified Health Plan" has the meaning given in Sec. 1301 of the Patient Protection and Affordable 

Care Act (ACA), 42 U.S.C. §18021. 

(b) Indian Health Care Provider" means a health program administered by the Indian Health Service 

(IHS), a tribal health program, an Indian tribe or tribal organization to which funding is provided 

pursuant to section 23 of the Act of June 25, 1910 (25 U.S.C. § 47(commonly known as the “Buy 

Indian Act”)) or an urban Indian organization that receives funding from the IHS pursuant to Title V 

of the Indian Health Care Improvement Act, Pub. L. 94-437, as amended (IHCIA). 

(c) "Indian Health Service" means the agency of that name within the U.S. Department of Health and 

Human Services established by IHCIA Sec. 601, 25 USC §1661. 

(d) "Indian tribe" has the meaning given in IHCIA Sec. 4(14), 25 USC § 1603(14). 

(e) The term "tribal organization" has the meaning given in IHCIA Sec. 4(26), 25 USC §1603(26). 

(f) "Urban Indian organization" has the meaning given in IHCIA Sec. 4(29), 25 USC §1603(29). 

(g) The term "Indian," has the meaning given in 45 C.F.R. 155.300(a). 

(h) The term "contract health services" has the meaning given in IHCIA Sec. 4(5), 25 U.S.C. §1603(5). 

(i) The term “Tribal health program” has the meaning given in IHCIA Sec. 4(25), 25 U.S.C. § 1603(25). 

3. Description of Indian Health Care Provider. 

The Provider identified in Section 1 of this Addendum for Indian Health Care Providers is (check 

appropriate box): 

/_/ The Indian Health Service (IHS). 

/_/ An Indian tribe that operates a health program under a contract or compact to carry out programs of 

the IHS pursuant to the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 USC 

§450 et seq. 

/_/ A tribal organization that operates a health program under a contract or compact to carry out programs 

of the IHS pursuant to the ISDEAA, 25 USC §450 et seq. 

/_/ A tribe or tribal organization that operates a health program with funding provided in whole or part 

pursuant to section 23 of the Act of June 25, 1910 (25 U.S.C. § 47 (commonly known as the Buy 

8/7/12 DRAFT Addendum – Page 1 

Comment [A1]: While the QHP issuer might also 

be an MCO, the QHP is a commercial health 

insurance product that is not governed by medicaid 

requirements. The Medicaid definition is not 

applicable in this context.

Indian Act), or urban Indian organization that receives funding from the IHS pursuant to Title V of 

the Indian Health Care Improvement Act, Pub. L. 94-437, as amended (IHCIA) 

/_/ An urban Indian organization that operates a health program with funds in whole or part provided by 

IHS under a grant or contract awarded pursuant to Title V of the IHCIA. 

4. Cost-Sharing Exemption for Indians; No Reduction in Payments. 

If an Indian enrolled in a qualified health plan is furnished an item or service directly by the Indian Health 

Service, an Indian Tribe, Tribal Organization, or Urban Indian Organization or through referral under 

contract health services – 

(a) No cost-sharing under the plan shall be imposed under the plan for such item or service; and 

(b) The issuer of the plan shall not reduce the payment to any such entity for such item or service by 

the amount of any cost-sharing that would be due from the Indian but for subparagraph (a). . 

ACA §1402(d) (2) (42 USC 18071(d)(2)). 

5. Persons eligible for items and services from Indian Health Care Provider. 

(a) The parties agree that the IHS is limited to serving eligible IHS beneficiaries, except under limited 

circumstances pursuant to 42 CFR Part 136 and IHCIA Sec. 813, 25 USC §1680c. 

(b) The parties agree that the Indian Health Care Provider that is an Indian tribe, a tribal organization, or 

an urban Indian organization has the authority to limit its service population in accordance with the 

following authorities: 

(1) Sec. 813 of the IHCIA, 25 USC §1680c; 

(2) 42 CFR Part 136; and 

(3) The terms of the ISDEAA contract or compact or IHCIA grant or contract, as 

applicable. 

(c) No term or condition of the Qualified Health Plan's agreement or any addendum thereto shall be 

construed to change, reduce, expand or alter the eligibility of persons for services of the Indian Health 

Care Provider that is inconsistent with the authorities identified in subsection (a) or (b). 

6. Applicability of Other Federal laws. 

Federal laws and regulations affecting an Indian Health Care Provider, include but are not limited to the 

following: 

(a) The IHS as an Indian Health Care Provider: 

(1) Anti-Deficiency Act 31 U.S.C. §1341; 

(2) Indian Self Determination and Education Assistance Act (ISDEAA) ; 25 USC §450 et seq.; 

(3) Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§2671-2680; 

(4) Federal Medical Care Recovery Act, 42 U.S.C. §§2651-2653; 

(5) Federal Privacy Act of 1974 (“Privacy Act”), 5 U.S.C. §552a, 45 CFR Part 5b; 

(6) Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. Part 2; 

(7) Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 45C.F.R. Parts 160 

and 164; and 

(8) IHCIA, 25 U.S.C. §1601 et seq. 

(b) An Indian tribe or a tribal organization that is an Indian Health Care Provider: 

8/7/12 DRAFT Addendum – Page 2

(1) ISDEAA, 25 USC §450 et seq.; 

(2) IHCIA, 25 USC §1601, et seq.; 

(3) FTCA, 28 USC §§2671-2680; 

(4) HIPAA, and regulations at 45 CFR parts 160 and 164. 

(c) An urban Indian organization that is an Indian Health Care Provider: 

(1) IHCIA, 25 USC §1601, et seq.; 

(2) Privacy Act, 5 USC §552a and regulations at 45 CFR Part 5b; and 

(3) HIPAA, and regulations at 45 CFR parts 160 and 164. 

7. Non-taxable entity. 

To the extent an Indian Health Care Provider is a non-taxable entity, such Provider shall not be required 

by a Qualified Health Plan to collect or remit any Federal, State, or local tax. 

8. Insurance and indemnification. 

(a) Indian Health Service. The Indian Health Service is covered by the Federal Tort Claims Act (FTCA) 

which obviates the requirement that IHS carry private malpractice insurance as the United States 

consents to be sued in place of federal employees for any damages to property or for personal injury 

or death caused by the negligence or wrongful act or omission of federal employees acting within the 

scope of their employment. 28 U.S.C. §2671-2680. Nothing in the Qualified Health Plan's agreement 

shall be interpreted to authorize or obligate any IHS employee to perform any act outside the scope of 

his/her employment. The IHS shall not be required to acquire insurance, provide indemnification, or 

guarantee that the Qualified Health Plan will be held harmless from liability. 

(b) Indian Tribes and Tribal Organizations. An Indian Health Care Provider which is an Indian tribe or a 

tribal organization shall not be required to obtain or maintain professional liability insurance to the 

extent such Provider is covered by the Federal Tort Claims Act (FTCA) pursuant to Federal law 

(Pub.L. 101-512, Title III, §314, as amended by Pub.L. 103-138, Title III, §308 (codified at 25 USC 

§450f note); and regulations at 25 CFR Part 900, Subpt. M. Nothing in the Qualified Health Plan's 

agreement or any addendum thereto shall be interpreted to authorize or obligate such Provider or any 

employee of such Provider to operate outside of the scope of employment of such employee. Such 

Provider shall not be required to acquire insurance, provide indemnification, or guarantee that the 

Qualified Health Plan will be held harmless from liability. 

(c) Urban Indian Organizations. To the extent an Indian Health Care Provider that is an urban Indian 

organization is covered by the FTCA pursuant to section 224(g)-(n) of the Public Health Service Act, 

as amended by the Federally Supported Health Centers Assistance Act, Pub.L. 104-73, (codified at 42 

USC §233(g)-(n)) and regulations at 42 CFR Part 6, such Provider shall not be required to obtain or 

maintain professional liability insurance. Nothing in the Qualified Health Plan's agreement or any 

addendum thereto shall be interpreted to authorize or obligate such Provider or any employee of such 

Provider to operate outside of the scope of employment of such employee. Such Provider shall not be 

required to acquire insurance, provide indemnification, or guarantee that the Qualified Health Plan 

will be held harmless from liability. 

9. Licensure of Health Care Professionals. 

(a) Indian Health Service. States may not regulate the activities of IHS-operated health care programs nor 

require that IHS health care professionals be licensed in the State where they are providing services, 


whether the IHS employee is working at an IHS-operated facility or has been assigned to a health care 

program of a tribe, tribal organization or urban Indian organization. The parties agree that during the 

term of the Qualified Health Plan's agreement, IHS health care professionals shall hold state licenses 

in accordance with applicable federal law, and that IHS facilities shall be accredited in accordance 

with federal statutes and regulations. 

(b) Indian tribes and tribal organizations. Sec. 221 of the IHCIA (25 U.S.C. §1621t) exempts a health 

care professional employed by an Indian tribe or tribal organization from the licensing requirements 

of the state in which such tribe or organization performs services, provided the health care 

professional is licensed in any state. Sec. 408 of the IHCIA (25 U.S.C. § 1647a) provides that a 

health program operated by an Indian tribe or tribal organization shall be deemed to have met a 

requirement for a license under state or local law if such program meets all the applicable standards 

for such licensure, regardless of whether the entity obtains a license or other documentation under 

such state or local law. The parties agree that these federal laws apply to the Qualified Health Plan's 

agreement and any addenda thereto. 

(c) Urban Indian organizations. To the extent that any health care professional of an urban Indian 

Provider is exempt from State regulation, such professional shall be deemed qualified to perform 

services under the Qualified Health Plan Sponsor's agreement and all addenda thereto, provided such 

employee is licensed to practice in any State. Sec. 408 of the IHCIA (25 U.S.C. § 1647a) provides 

that a health program operated by an urban Indian organization shall be deemed to have met a 

requirement for a license under state or local law if such program meets all the applicable standards 

for such licensure, regardless of whether the entity obtains a license or other documentation under 

such state or local law. 

10. Licensure of Provider; eligibility for payments. 

To the extent that the Indian Health Care Provider is exempt from State licensing requirements, such 

Provider shall not be required to hold a State license to receive any payments under the Qualified Health 

Plan's agreement and any addendum thereto. 

11. Dispute Resolution. 

In the event of any dispute arising under the Qualified Health Plan's agreement or any addendum thereto, 

the parties agree to meet and confer in good faith to resolve any such disputes. The laws of the United 

States shall apply to any problem or dispute hereunder that cannot be resolved by and between the parties 

in good faith. Notwithstanding any provision in the Qualified Health Plan's agreement or any addendum 

thereto to the contrary, the Indian Health Care Provider shall not be required to submit any disputes 

between the parties to binding arbitration. 

12. Governing Law. 

The Qualified Health Plan's agreement and all addenda thereto shall be governed and construed in 

accordance with Federal law of the United States. In the event of a conflict between such agreement and 

all addenda thereto and Federal law, Federal law shall prevail. Nothing in the Qualified Health Plan's 

agreement or any addendum thereto shall subject an Indian tribe, tribal organization, or urban Indian 

organization to State law to any greater extent than State law is already applicable. 


13. Medical Quality Assurance Requirements. 

To the extent the Qualified Health Plan imposes any medical quality assurance requirements on its 

network providers, any such requirements applicable to Indian Health Care Providers shall be subject to 

Sec. 805 of the IHCIA (25 U.S.C. §1675). 

14. Claims Format. 

Pursuant to Sec. 206(h) of the IHCIA (25 USC §1621e(h)), the Qualified Health Plan may not deny a 

claim submitted by the Indian Health Care Provider based on the format in which submitted if the format 

used complies with that required for submission of claims under Title XVIII of the Social Security Act or 

recognized under section 1175 of such Act. 

15. Payment of Claims. 

The Qualified Health Plan shall pay claims from the Indian Health Care Provider in accord with Federal 

law, including Sec. 206 of the IHCIA (25 U.S.C. §1621e), and Sec. 1402(d)(2)(B) of the ACA (42 U.S.C. 

§18071(d)(2)(B)), except to the extent the Indian Health Care Provider expressly agrees in writing to the 

rates or amounts specified in [specify payment schedule here] as payment in full, provided that such rates 

or amounts shall not be lower than the Qualified Health Plan pays to any of its other preferred or innetwork 

providers . 

16. Hours and Days of Service. 

The hours and days of service of the Indian Health Care Provider shall be established by such Provider. 

At the request of the Qualified Health Plan, such Provider shall provide written notification of its hours 

and days of service. 

17. Sovereign Immunity. 

Nothing in the Qualified Health Plan's agreement or in any addendum thereto shall constitute a waiver of 

federal or tribal sovereign immunity. 

18. Endorsement. 

An endorsement of a non-Federal entity, event, product, service, or enterprise may be neither stated nor 

implied by the IHS provider or IHS employees in their official capacities and titles. Such agency names 

and positions may not be used to suggest official endorsement or preferential treatment of any non- 

Federal entity under this agreement. 

APPROVALS 

For the Qualified Health Plan: For the Indian Health Care Provider: 

____________________________________ __________________________________ 

Date ________________________________ Date ______________________________ 

8/7/12 DRAFT Addendum – Page 5 

Comment [A2]: The base agreement will specify 

the payment rate. Not sure what legal standing this 

statement would have.

Notes from Tribal Consultation with HHS on Federally-facilitated Exchange (FFE) 

and Medicaid Expansion 

July 26 (Washington, DC), August 6 (Anchorage, AK), August 9 (Denver, CO), as well 

as IHS consultation with tribes on ACA August 8 (Denver, CO) 

Notes from Mim Dixon (with additions from Doneg McDonough shown in bold) 

1. We now have agenda for FFE Tribal Consultation Sessions. 

a. Jennifer Cooper put together talking points that tracked the agenda for DC 

session and revised for Anchorage session. 

- A revised version was prepared for the Denver session. 

b. No real opportunity for written statements or comments unrelated to topics. 

c. Morning about Medicaid Expansion. 

2. FFE Developments 

i. No real news about Medicaid Expansion alternatives. 

ii. Administration is encouraging interest groups (Tribes, Hospital Assn) to 

work together to pressure Republican governors and legislatures to adopt 

ME. 

a. TTAG’s ACA Policy Committee is meeting weekly to work on some issues. 

Only agenda items identified to date are: 

i. Addendum + Companion piece explaining addendum 

ii. Tribal Sponsorship 

iii. Network adequacy / contracting with I/T/U 

iv. Other topics will be prioritized as high impact, high value topics 

b. For Addendum and companion piece, Pete Nakahata has said process will 

be: ACA Subcommittee – HHS Legal Counsel – Tribal Consultation – completion 

in September. 

- A session with the ACA Policy Committee on the Indian Addendum 

was held during a break in the Denver consultation. Policy 

Committee reviewed edits on documents from P. Nakahata. Final 

1

edits on documents are due back from tribal reps to P. Nakahata by 

8/14. 

- P. Nakahata recommended that the topic for the 8/16 ACA Policy 

Committee meeting will be tribal sponsorship. 

c. CCIIO has a request for input on data elements pertaining to an “Indian 

placeholder” to be included in the single application form being developed by 

CMS for use by Exchanges. 

i. Formal comments are due back to CMS on CMS-10439 by 


- Jennifer Cooper agreed to prepare a draft response by 

pulling from prior comments on this issue that were submitted 

by NIHB/TTAG. 

ii. A Webinar will be held on this issue on August 20 at 3:00 pm EDT 

iii. An all tribes call is scheduled for September 7 at 1:00 pm EDT. 

iv. TTAG asked that the whole process be explained to put AI questions 

in context – not sure whether this will be ACA Policy Subcommittee or 

another group. 

v. TTAG had already submitted questions to use, but it doesn’t seem like 

these are being referenced by CCIIO. 

d. CCIIO has stated that monthly enrollment periods for AI/AN will have a cut-off 

date of the 15 th of each month for enrollment beginning on the 1 st of the following 

month. (People who apply on the 16 th wouldn’t be enrolled for 6 weeks.) 

e. CCIIO has stated that termination of coverage requires 14 days notice. 

f. According to CCIIO, ACA does not include IHS as ECPs, and therefore any 

requirement for QHPs to contract with ECPs would not include IHS. 

g. At the TTAG meeting, the website and data management folks spoke for the 

first time and they said they are using open source computer software that allows 

them to re-program quickly and easily to add elements over time. They seem to 

grasp AI issues. 

h. At MMPC meeting, IRS representatives said they expected that AI/AN 

applying for waiver of penalty would only have to use self-attestation that they 

2

are eligible for the waiver (i.e., they would not have to go through the Exchange 

application process to determine their eligibility as AI/AN). 

i. NPRM on AI/AN cost sharing waiver and how providers/QHPs will be paid by 

Federal government for the amount of cost sharing they are not collecting from 

AI/AN will be issued in August. 

3. New Issues that came up at FFE Tribal Consultation in DC, July 26 

a. Partnerships - Administration is encouraging Partnership arrangements with 

states and it’s not clear whether Tribes need to be consulting with States or 

Feds, or both. More work for Tribes and very confusing. 

b. State Exchange Tribal Consultation Policies - States are not being required to 

have Tribal Consultation Policy for Exchanges until they submit the package to 

be certified (April 2013) – which means Tribes will not necessarily be consulted in 

the decisions about Exchanges. 

- Example: Essential Health Benefits 

c. Indian questions on application - Amy Erhardt is working on the applications 

and she said that waiver of cost sharing will only happen if applicant declares 

that they want to be considered for an “Insurance Accessibility Program”. 

i. The law says all AI are eligible for cost sharing waivers, even if they 

don’t want one of the Insurance Accessibility Programs (Medicaid, CHIP, 

Advanced Tax Credits). 

ii. This is important because we don’t want MAGI calculated for people 

who haven’t filed tax returns. 

iii. This approached was not challenged in the DC meeting. 

iv. New acronym: APTC/CSR (= Advanced Payment of Tax Credits and 

Cost Sharing Reductions) 

c. Navigators and In Person Assistance - (Holly Whalen is CCIIO point person 

on this) 

I. Looks like there will be competition for Navigator grants at federal level 

– no set aside for Tribes. 

ii. A second source of funding that can come from federal establish 

grants, but is not identified in the law is “in-person assistance.” 

3

d. CCIIO Philosophy - CCIIO is taking the approach that “where we start is not 

where we finish”, in other words, they want to stand up the FFE as quickly as 

possible and go back and correct things that aren’t working. 

i. Tribes know from experience with CMS that it is better to get things right 

the first time rather than going back and trying to fix things that are in 

writing later. 

ii. Too many people in CMS/HHS are referring to Tribes as “Stakeholders” 

and not acknowledging the special legal/political status and governmentto-government 

relationship 

4. Additional information provided during teleconference 

a. State Exchanges are expecting to decide on their QHP requirements for 

network adequacy in September or October and they are looking to CCIIO for 

guidance, including decisions about the FFE. 

b. State Exchange Tribal Consultation 

i. NM is moving forward on planning an exchange using a consultant, and 

the Exchange will be housed in the NM Health Alliance. Tribal input has 

been limited. 

ii. AZ is planning a State Exchange. 

c. Basic Health Programs 

i. Only 3 states are expected to have BHP: WA, VT, RI 

ii. CA has a BHP now, but they may drop it. 

5. Next steps recommended in teleconference 

a. Alaska Consultation, August 7 

i. Val should invite Pete and other federal officials to lunch at ANMC and 

include a tour of the facility and SCF outpatient services. 

ii. Comments in Alaska should focus on network adequacy, including both 

ANMC and village clinics. 

iii. Participants should tell Pete that they realize that not many federal 

officials could attend, but they are relying on him to communicate issues to 

others, particularly those whose decisions are outside his control. 

4

iv. Suggest that Medicaid/CHIP representative be at the table for 

discussion of single application and data elements. 

b. Doneg volunteered to take notes at Anchorage and Denver and distribute a 

document to Tribes (through TSGAC and MMPC) with new issues that are 

identified. Issues identified in Anchorage will be distributed quickly, so that they 

can be included in the Denver consultation. 

c. Denver Consultation, August 9 

i. Diddy will organize a Tribal caucus on the evening of August 8 

ii. Jim Roberts will facilitate the Tribal caucus 

iii. MMPC and TSGAC will notify Tribes about the caucus date, time, 

place. 

iv. There is also a 3 hour time slot in the IHS consultation for ACA and the 

following topics are recommended: 

(1) How will IHS respond to sponsorship opportunity for people in 

Direct Service Tribes? 

d. Letter to Michael Hash to be sent by NIHB, TSGAC (and possibly TTAG) with 

cc to Secretary to cover these topics: 1) referring to AI/AN and Tribes as 

“stakeholders” is not consistent with CMS policy; and 2) need for greater 

oversight on State Tribal consultation in Exchanges. 

e. Second letter to Michael Hash with summary of issues that surfaced in the 3 

FFE Tribal Consultation meetings and the Tribal positions on those issues. 

6. Points made at the Anchorage and Denver tribal consultations with HHS on 

FFE and Medicaid Expansion 

a. CMS stated that the new (and ACA-intended mandatory) Medicaid 

expansion to adults without dependent children with incomes up to 

138% FPL will be considered a “voluntary” expansion group. As with 

other voluntary expansion groups under Medicaid -- 

i. A state is able to cancel the expansion in the future. 

ii. AI/AN-specific protections (e.g., ARRA premium and cost-sharing 

protections) carry over to the expansion population, including – 

- No premiums or cost sharing 

- Ability to choose an I/T/U provider that is in plan network 

5

- I/T/U provider receives their all-inclusive or FQHC rate 

(either directly from the plan or Medicaid makes up the 

difference between plan payment and the I/T/U’s rate) 

iii. There is not a specific date by which a state has to inform CMS 

that it intends to expand Medicaid. The standard State Plan 

Amendments procedures apply. 

b. Other changes to Medicaid called for under the ACA are to be 

implemented whether or not a state exercises the Medicaid expansion 

option. 

i. Application of a uniform definition of income using the new 

definition of modified adjusted gross income (MAGI) 

ii. No asset test for non-long term care service eligibility 

iii. Maintenance of effort requirements on income eligibility continue 

through 2019 for children and through 2014 for others 

c. The ACA-directed study of a Navajo “single state agency for Medicaid” 

was referenced several times by CMS and IHS. 

i. The initial draft of the study is due from the contractor 

Econometrica to CMS by October 2013. 

ii. A final report is due to Congress from CMS by early 2014 

d. Determining “Indian” for Exchange and IRS-related provisions. 

i. In response to the question “How will AI/AN prove that they don’t 

have to have insurance”, CMS staff responded “Exchange will 

have to issue a letter or other document to an AI/AN so they have 

proof.” 

- It seems that this answer needs further clarification, if not 

revision. 

ii. A follow-up question was asked: “what documentation is required 

by an AI/AN to provide to the Exchange to prove being an AI/AN”. 

CMS staff responded: “CMS needs more input from tribes.” 

e. Certification standards applied to Qualified Health Plans offered through 

an Exchange. 

6

i. CMS stated on a couple of occasions that states have the ability to 

apply additional standards on QHP than the minimum standards 

established by CMS 

- Imposing a requirement that all QHP’s in a state Exchange 

must offer to contract with I/T/U would be allowable. 

ii. CMS stated they would need to issue additional formal 

regulations if the FFE were to impose additional requirements on 

QHP, such as requiring a plan to offer to contract with each I/T/U. 

- CMS staff also indicated that, while it is not certain and 

they didn’t offer to include any AI/AN-specific provisions if 

they do, it is likely that CMS will be issuing further formal 

guidance on the FFE. 

f. Who should tribes engage in tribal consultation with regarding Exchange 

operations? 

i. For state-based Exchanges, state officials. 

ii. For strictly FFE, engage CMS but no explanation was given yet of 

how tribes will engage CMS on state-specific issues that may 

apply solely to one specific state FFE (versus the discussions 

going on now between TTAG and CMS on the national FFE 

design.) 

iii. For Partnership exchanges, engage states on the specific 

functions a state may decide to operate. 

- Plan management (e.g., certification of QHP) 

- Outreach and enrollment assistance (e.g., Navigator 

program and “in-person assistance”) 

g. Liability for tax penalty for certain IHS beneficiaries 

- In response to questions, the IHS Director and CMS staff 

acknowledged that some IHS beneficiaries who choose not to 

purchase health insurance coverage and who do not meet the 

definition of Indian under the IRC definition could be liable for the 

tax penalty administered by the IRS for not having “creditable 

coverage”. 

h. Analysis of impact of Medicaid expansion on states 

7

i. CMS rep. commented that an analysis is underway to determine 

the impact on each state from exercising the new Medicaid 

expansion option, but the analysis isn’t complete. 

- It wasn’t clear if CMS or another party was doing the 

analysis. 

- CMS rep. noted that it looks as if the Medicaid expansion will 

prove to reduce some/many state’s overall local 

expenditures. 

ii. CMS rep. cited statistics for a select number of states on the 

reduction in the percentage of uninsured persons in the state 

solely from a state exercising the new Medicaid expansion option 

(up to 138%). The data source was not cited. 

- Montana: 66% 

- North Dakota: 67% 

- South Dakota: 50% 

- Oklahoma: 74% 

- Arizona: 65% 

i. For non-expansion states, in response to questions raised in 

Anchorage and Denver -- 

i. CMS commented “We would be very interested in waiver 

proposals” from states/tribes designed to expand Medicaid 

coverage solely to AI/AN through I/T/U, possibly structured 

similar to the approved approach for AI/AN-specific benefits in 

Arizona. 

ii. CMS is considering developing a template for states to use in 

requesting a waiver to extend Medicaid coverage to AI/AN. 

j. State Plan Amendment or waiver request to CMS 

i. CMS emphasized that tribes in a state have the ability to request 

tribal consultation directly with CMS if they are not satisfied with 

the tribal consultation process and outcomes undertaken with the 

state. 

8

ii. New Mexico tribes raised concerns about the state’s tribal 

consultation held with regard to their pending Medicaid waiver, 

and they may wish to request the direct consultation with CMS. 

k. IHCIA section 206 and “reasonable charges” 

i. CMS and IHS were asked if an I/T/U’s FQHC or IHS all-inclusive 

rates would meet the definition of “reasonable charges” under 

section 206. 

ii. The CMS and IHS reps did not know. 

l. Outreach and Education Funding 

i. Tribes and tribal organizations are eligible to apply for grants 

under the Navigator program. 

ii. Funding will be available under the “in-person assistance” 

program for assisting individuals to enroll in Exchange and 

Medicaid coverage. 

- The lead CMS staff member / contact for the in-person 

assistance program is Holly Whelan, Consumer Support 

Group, CCIIO-CMS, holly.whelan@cms.hhs.gov 

iii. Medicaid Administrative Match (MAM) remains an option for 

states to be reimbursed by CMS for the costs of tribes 

performing enrollment assistance. 

- A question was raised as to how funding may be used / 

time may be allocated between combined Medicaid and 

Exchange eligibility assistance but a specific answer 

was not given. 

iv. $4 million in CMS CHIPRA funding for AI/AN-specific 

education and outreach in 2013. 

v. $32 million in CMS CHIPRA funding for general education and 

outreach in 2013. 

– Tribes and tribal organizations can apply for the 

general CHIPRA funds. 

9

IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE 

c/o Self-Governance Communication and Education 

5060 Pacific Highway, Suite 101, Ferndale, WA 98248 

Telephone (360) 380-1820 ~ Facsimile (360) 380-1981 ~ Website: www.tribalselfgov.org 

October 5, 2012 

Sent Via Fax Dr. Petzel: (202) 273-5787 

Sent Via Email Dr. Roubideaux: Rene.Joseph@ihs.gov 

Originals Sent Via USPS 

Dr. Robert A. Petzel, M.D. Dr. Yvette Roubideaux, M.D., M.P.H., Director 

Under Secretary for Health Indian Health Service 

Department of Veterans Affairs Department of Health and Human Services 

810 Vermont Avenue, NW Room 448, The Reyes Building 

Room 800 801 Thompson Avenue 

Washington, DC 20420 Rockville, MD 20852 

RE: Negotiation of Participating Tribal Health Program Agreements with Local 

VA Facilities: Need for Inclusion of Agreed Upon Payment Methodologies 

Dear Dr. Petzel & Dr. Roubideaux: 

On behalf of the Tribal Self-Governance Advisory Committee (TSGAC), we are writing to 

provide comments on one component of the latest set of materials released by the Department 

of Veterans Affairs (VA) regarding implementation of section 405(c) of the Indian Health Care 

Improvement Act (IHCIA). We appreciate the opportunity last week during the National Indian 

Health Board Annual Consumer Conference in Denver, Colorado to discuss with the VA, as well 

as with the Indian Health Service (IHS), securing reimbursement for health care services 

provided to eligible veterans by the IHS, Tribes and Tribal Organizations. The sessions were 

helpful to the Tribal participants, and we are encouraged that the VA is moving forward with 

establishing agreements with Tribal health programs without restricting participation to a small 

number of Tribal organizations under a demonstration project. We remain concerned, though, 

that the National Reimbursement Agreement between the VA and IHS has not been finalized 

and executed. 

The TSGAC has previously provided comments on various aspects of implementation of IHCIA 

section 405(c) since the provision was enacted in March of 2010. (TSGAC letters to VA/IHS 

dated April 4, April 18, and May 25, 2012.) We believe the successful implementation of section 

405(c) will serve to: (1) improve access to health care services for our veterans by expanding 

access and reimbursement at IHS and Tribal facilities; and (2) strengthen and improve the care 

received by veterans through improved coordination of their care across VA, IHS and Tribal 

facilities. We wish to acknowledge the apparent inclusion by the VA (as indicated in the VA’s 

August 24, 2012 Dear Tribal Leader letter) of a number of items TSGAC had previously 

recommended, particularly the exclusion of copayments for Tribally-provided services and the 

inclusion of behavioral health care and long-term care services as reimbursable services. 

In an earlier VA document titled “VA-IHS Draft Agreement – Reimbursement for Direct Health 

Care Services: Summary” (Summary of Reimbursement Agreement dated March 2, 2012), it 

stated that a number of items had been successfully negotiated between the VA and the IHS,

Letter: Dr. Robert Petzel, Under Secretary, VA & Dr. Yvette Roubideaux, Director, IHS 



Page 2 of 4 October 5, 2012 

including the payment methodologies to be used in the Participating Tribal Health Program 

Agreements. The Summary of Reimbursement Agreement document stated: 

Payment methodologies are proposed to be basically the same as what IHS 

hospitals and clinics are reimbursed for now: Inpatient hospital services would be 

based on Medicare payment methodologies specific to the type of rate already 

received (IPPS, CAH, etc); Outpatient services would be based on the IHS all 

inclusive rate for Medicare and Medicaid. Other specific rates will be spelled out in 

the document. 

In the April 5, 2012 “Final Consultation Draft” of the “Draft Agreement between the Department 

of Veterans Affairs and Department of Health and Human Services Indian Health Service for 

Reimbursement for Direct Health Care Services” (Draft National Reimbursement Agreement), 

additional detail on the agreed upon payment methodologies was included. TSAGC endorses 

section VII. Reimbursement for Direct Care Services, subsections A – F, of the Draft National 

Reimbursement Agreement, as follows: 

VII. REIMBURSEMENT FOR DIRECT CARE SERVICES 

A. Except to the extent inconsistent with the rate methodology explained herein, VA 

shall reimburse at rates based on Medicare payment methodologies for services, 

including home and community based services, to Eligible AI/AN Veterans. 

B. Inpatient Hospital Services. Except to the extent inconsistent with the rate 

methodology explained herein, VA shall reimburse at rates based on Medicare 

payment methodologies for services to Eligible AI/AN Veterans. The payment 

methodology under this section applies to all inpatient services furnished by the 

hospital, whether provided by part of a department, subunit, distinct part, or other 

component of a hospital (including services furnished directly by the hospital or 

under arrangements with contract providers who provide Direct Care Services 

onsite in an IHS or Tribal health facility). 

1. Payment for hospital services that the Medicare program would pay under a 

prospective payment system (PPS) will be based on the applicable PPS. For 

example, payment for inpatient hospital services shall be made per discharge 

based on the applicable PPS used by the Medicare program to pay for similar 

hospital services under 42 C.F.R. Part 412. 

2. For hospitals that furnish inpatient services but are exempt from PPS and receive 

reimbursement based on reasonable costs (for example, critical access hospitals 

(CAHs)), including provider subunits exempt from PPS, payment shall be made 

per discharge based on the reasonable cost methods established under 42 

C.F.R. Part 413, except that the interim payment rate under 42 C.F.R. Part 413, 

subpart E shall constitute payment in full. 

3. The inpatient rates set forth above do not include inpatient physician services 

and practitioner services. The inpatient physician and other practitioner services 

shall be billed based on the Medicare fee schedule.





C. Outpatient Hospital Services and Freestanding Clinic Services. VA shall pay for 

outpatient and free standing clinics services to Eligible AI/AN Veterans at the all 

inclusive rate approved each year by the Director of IHS, under the authority of 

sections 321(a) and 322(b) of the Public Health Service Act (42 U.S.C. §§ 248 

and 249(b)), Public Law 83-568 (42 U.S.C. § 2001(a)), and the Indian Health 

Care Improvement Act (25 U.S.C. § 1601 et seq.). This rate is published annually 

in the Federal Register under the title: Outpatient Per Visit Rate (Excluding 

Medicare). 

D. Federally Qualified Health Centers. For facilities reimbursed by Medicare at the 

Medicare Federally Qualified Health Center Rate, VA shall pay for services to 

Eligible AI/AN Veterans at the Medicare Federally Qualified Health Center rate. 

E. Ambulatory Surgical Services. VA shall reimburse for services to Eligible AI/AN 

Veterans at established Medicare rates for freestanding Ambulatory Surgery 

Centers. 

F. Inpatient Pharmacy Services/Outpatient Pharmacy Services/ Take-Home Drugs. 

VA agrees to provide reimbursement for inpatient medications for Eligible AI/AN 

Veterans receiving direct inpatient care in IHS and Tribal hospitals. For outpatient 

medications, IHS, Tribes and VA agree to use the VA Consolidated Mail 

Outpatient Pharmacy (CMOP) for routine/ongoing/regular prescriptions written for 

Eligible AI/AN Veterans under this agreement. VA agrees to provide 

reimbursement of the cost of medication dispensed for the provision of outpatient 

emergent need prescriptions or other outpatient prescriptions requiring provision 

to eligible patients to initialize or continue therapy before CMOP can provide. In 

those instances, those prescriptions are to be limited to not more than a 14-day 

(Alaska: 30-day) supply. 

We would like to emphasize that the rates in subsections A through E – which parallel the 

reimbursement methodologies in use today under Medicare for IHS, Tribe and Tribal health 

programs – were established in order to cover the costs of care at these facilities to the eligible 

beneficiaries. Any proposed reductions to these rates would result in revenues to the facilities 

being below the costs of providing the care to the AI/AN veterans, which would not be 

acceptable. 

In closing, we strongly recommend, to the extent that participating Tribal health program 

agreements with local VA facilities are put in place prior to the execution of a National 

Agreement on Reimbursement for Health Care Services, that the above payment policies 

contained in the Draft National Reimbursement Agreement be incorporated into each 

participating Tribal health program agreement unless the participating Tribal health program 

specifically requests that alternate payment policies be employed. We further recommend that 

the payment methodologies contained in the Draft National Reimbursement Agreement be 

retained in the final National Reimbursement Agreement. 

We encourage the VA and IHS to finalize this agreement as soon as possible, after taking into 

consideration the remaining issues identified in the previous TSGAC comment letters. We look





forward to continuing to work with you. If you have any questions, you can reach me at (860) 

862-6192; or via email: lmalerba@moheganmail.com. 

Sincerely, 

Chief Lynn Malerba, Mohegan Tribe 

Chairwoman, TSGAC 

cc: P. Benjamin Smith, Director, Office of Tribal Self-Governance, IHS 

Stephanie E. Birdwell, M.S.W. Director, Office of Tribal Government Relations, VA 

Stacy Bohlen, Executive Director, National Indian Health Board 

TSGAC Members 

TSGAC Technical Workgroup Members


Dr. Robert Petzel, M.D. Dr. Yvette Roubideaux, M.D., M.P.H., Director 

Under Secretary Indian Health Service 

Department of Veterans Affairs Room 448, The Reyes Building 

810 Vermont Avenue 801 Thompson Avenue 

Washington, D.C. 20420 Rockville, MD 20852 

RE: National All Inclusive Reimbursement Rate Agreement 

Dear. Dr. Petzel, and Dr. Roubideaux: 

On behalf of the National Indian Health Board (NIHB), I respectfully submit the following 

recommendation contained in this letter regarding the Department of Veterans Affairs’ (VA) 

implementation of the reimbursement requirements under Section 405(c) of the Indian Health 

Care Improvement Act (IHCIA). 1 Tribes see the implementation of reimbursement rates as a top 

priority that remains to be fulfilled. 

NIHB recommends that all Tribal facilities and Indian Health Service (IHS) operating 

programs receive reimbursement from the VA for services provided to our Native 

American Veterans based upon the Medicaid All-Inclusive rate rather than the Medicare 

Fee Schedule cost reimbursement rate that is applicable to a Federally Qualified Health 

Center (FQHC). This important issue will play a critical role in allowing AI/AN access to 

quality health care, especially as Tribes enter into negotiations with the VA for terms and 

conditions for reimbursement rates for ambulatory services. 

In the April 5, 2012, “Final Consultation Draft” of the “Draft Agreement between the VA and 

IHS for Reimbursement for Direct Health Care Services” (Draft National Reimbursement 

Agreement), additional detail on the agreed upon payment methodologies was included. Included 

was Section VII Reimbursement for Direct Care Services, which further articulated VA’s policy 

that reimbursement would be based at the Medicaid All-Inclusive Rate for outpatient hospital 

services. Initially, Tribes were pleased with the decision by VA to rely on the Medicaid All- 

Inclusive Rate approved by the IHS Director and published in the Federal Register as the basis 

of reimbursement. 

1 Section 405(c) requires the VA to reimburse the IHS, an Indian Tribe or Tribal Organization “where services are 

provided through the Service, an Indian Tribe or a Tribal Organization to beneficiaries eligible for services from the 

[VA], notwithstanding any other provisions of law.”

P a g e | 2 

Now there appears to be confusion among the Tribes about the rate of reimbursement that Tribal 

health facilities and IHS will receive from the VA for services provided to AI/AN eligible 

veterans. Tribes had the opportunity last month at the NIHB Annual Consumer Conference in 

Denver, Colorado to discuss with the VA securing reimbursement for health care services 

provided to AI/AN eligible veterans. Following these discussions and a brief period of tribal 

consultations where the reimbursement rate was not an issue, the VA has now stated that the 

reimbursement rate will be the Medicare Fee Schedule as opposed to the original understanding 

by Tribes that the Medicaid All-Inclusive Rate would apply, which was contained in the VA’s 

previously-published Draft Agreement with IHS. 

Reimbursement rates vary by payer source. For example, the Medicaid reimbursement rate is 

significantly higher than the Medicare FQHC rate for the same service. NIHB recommends that 

the reimbursement rate under the VA Agreement for all tribal health facilities be based upon the 

All-Inclusive Rate rather than the Medicare Fee Schedule reimbursement rate as an FQHC in 

order to cover the costs of care at these facilities to the eligible beneficiaries. Any proposed 

reductions in reimbursement rates could result in revenues to the facilities below the costs of 

providing the care to the AI/AN veterans. 

As you already know, many of the Alaska Tribal Health Programs (ATHPs) have collectively 

negotiated and entered into agreements with the VA under which they will be reimbursed for 

health care services provided to AI/AN veterans based on the Medicaid All-Inclusive Rate. This 

historic agreement expands access to health care to Alaska’s veterans. Already, enrollment 

efforts have been redoubled and the number of enrolled AI/AN veterans is increasing in Alaska. 

Similar to the successfully negotiated agreements between ATHPs and the VA, NIHB believes 

the Medicaid All-Inclusive Rate to be the appropriate reimbursement rate for all Tribes 

throughout Indian Country. 

I respectfully ask that you consider our recommendation outlined above, specifically that all 

tribal health facilities and IHS receive the Medicaid All-Inclusive reimbursement rate from the 

VA for services provided to eligible AI/AN veterans instead of the Medicare Fee Schedule rate 

as an FQHC. 

Thank you in advance for consideration of these recommendations as we jointly work to advance 

the health status of AI/AN individuals and communities across the United States. 

Yours in Health, 

Cathy Abramson 

Chairperson 

National Indian Health Board

A BILL 

To correct inconsistencies in the definitions affecting Native Americans under the Patient 

Protection and Affordable Care Act. 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. TECHNICAL CORRECTIONS RELATING TO THE DEFINITIONS OF 

INDIAN IN PPACA. 

IN GENERAL.—Title I of the Patient Protection and Affordable Care Act is amended— 

(1) in section 1311(c)(6)(D), by striking ‘‘(as defined in section 4 of the Indian Health 

Care Improvement Act)’’ and inserting ‘‘(as defined in section 447.50(b)(1) of title 42 of 

the Code of Federal Regulations, as in effect on July 1, 2010)’’; and 

(2) in section 1402(d)(1), by striking ‘‘(as defined in section 4(d) of the Indian Self- 

Determination and Education Assistance Act (25 U.S.C." "450b(d)))’’ and inserting ‘‘(as 

defined in section 447.50(b)(1) of title 42 of the Code of Federal Regulations, as in effect 

on July 1, 2010)’’. 

(3) in section 1501(b), by striking “MEMBERS OF INDIAN TRIBES. —Any applicable 

individual for any month during which the individual is a member of an Indian tribe (as 

defined in section 45A(c)(6)) and inserting ‘‘INDIANS.—Any applicable individual who 

is an Indian (as defined in section 447.50(b)(1) of title 42 of the Code of Federal 

Regulations, as in effect on July 1, 2010).”

a b c d 

e 

IHS & Medicaid Align 

IHS Eligibility for 

AI/ANs 

Chart of Indian-specific Health Care Provisions 

with Different Citations in Federal Law for Defining "Indian" 

Medicaid: 

Protections and 

Benefits for AI/ANs 

Monthly Enrollment 

Periods for AI/AN's 

Sec. 4 IHCIA 

Affordable Care Act-related Provisions 

Health Insurance Exchange-related Provisions 

Cost-Sharing Protections for AI/AN's 

Sec. 4(d) ISDEAA 

No cost-sharing for 

AI/ANs under 300% 

FPL (at all providers) 

No cost-sharing for 

AI/ANs served by 

I/T/U; payment of full 

amount due to I/T/U 

(without cost-sharing 

reductions) 

CMS stated in regulations these definitions "operationally mean the same 

thing." 

Exemption from 

IRC tax penalties 

for AI/ANs not 

having "minimum 

essential coverage" 

IRC 45A(c)(6) 

IRS stated informally in meetings these definitions are the same. 

NPAIHB / TSGAC v. 1.1

California Rural Indian 

Health Board 


Valerie B. Jarrett, Senior Advisor 

The White House 

1600 Pennsylvania Avenue N.W. 

Washington, DC 20500 

Dear Ms. Jarrett and Ms. Gillette: 

Jodi Gillette, Senior Policy Advisor 

Native American Affairs 

1600 Pennsylvania Avenue N.W. 

Washington, DC 20500 

Northwest Portland Area 

Indian Health Board 

The California Rural Indian Health Board (CRIHB) and the Northwest Portland Area Indian Health Board 

(NPAIHB) are Tribal organizations organized under the Indian Self-Determination and Education Assistance 

Act. 1 Our organizations represent health care issues of 63 federally-recognized Tribes in California, Idaho, 

Oregon, and Washington. We are writing to you about a very important Affordable Care Act matter. 

In just three months, States will be applying to the federal government for certification of their Health 

Insurance Exchanges under the Affordable Care Act. One of the current activities for both State Exchanges 

and the Federally-Facilitated Exchange is to create a single streamlined application for Medicaid, Child Health 

Insurance Programs, and the individual Exchanges. The Administration’s goal of a short and simple application 

that uses electronic data bases is at odds with regulatory guidance regarding identifying American Indians and 

Alaska Natives (AI/AN) for the purposes of cost sharing waivers, special enrollment periods, and other 

protections in Medicaid, CHIP and the Exchanges. It is imperative that the White House provide guidance on 

this issue so that AI/AN who were intended to benefit from ACA are not left out. 

Here is a short list of potential problems that could occur if the definition of Indian used by Exchanges is 

different from the one used by Medicaid and CHIP: 

An AI/AN child who is not allowed to enroll as tribal members until her 18 th birthday will not be 

considered as AI/AN by Exchanges, although she would be considered AI/AN by Medicaid and CHIP. 

An Alaska Native adult will not be considered AI/AN by Exchanges until his parent dies and he inherits 

stock in an Alaska Native corporation. And his children will not be considered AI/AN by Exchanges 

until he dies and his stock in an Alaska Native corporation is passed along to his children, even though 

they qualify as AI/AN under Medicaid and CHIP. 

1 As defined in the Indian Self-Determination and Education Assistance Act, P.L. 93-638, 25 U.S.C., Section 450(b) a Tribal organization 

is a legally established governing body of any Indian tribe(s) that is controlled, sanctioned, or chartered by such Indian Tribe(s) and 

designated to act on their behalf.

An American Indian child that may not have enough blood quantum to be enrolled in a Tribe will be 

considered Indian under Medicaid. But not in Exchanges, because she lacks enough blood quantum to 

be enrolled in either of her parent’s tribe. 

An American Indian cannot enroll in his father’s tribe where tribal membership is passed from mother 

to child in what has been called matrilineal descent, and therefore he would not be considered AI/AN 

under Exchanges, even though he would qualify as AI/AN in Medicaid. 

An individual who has been determined to be AI/AN by the federal Bureau of Indian Affairs and has a 

Certificate of Indian Blood issued by that federal agency that is recognized by every other federal 

agency, is not recognized as Indian by the Federally-facilitated Exchange or state-based exchanges. 

A person enrolled in Medicaid as an AI/AN no longer meets the income criteria and does not purchase 

health insurance because she gets her care from her Tribal health clinic and assumes that she is 

exempt from tax penalties because she is AI/AN. However, IRS uses a different definition of AI/AN 

than Medicaid uses, and she finds out later that she does have to pay a tax penalty. 

The complications of Exchanges to administer and families to understand the varying definition of 

Indian and the high level of churning that is anticipated for AI/AN families will disenfranchise AI/AN 

families from participating in opportunities provided under the Affordable Care Act. 

In each of these cases, the individuals could be living in a family that is considered AI/AN, in an AI/AN 

community – perhaps even on a reservation, attending Indian schools funded by the federal government, and 

receiving their health services at an Indian Health Service clinic or hospital. They could be considered AI/AN 

for Medicaid, CHIP and every federal Indian program. And, still they would not be qualified for the special 

protections for AI/AN in Health Insurance Exchanges according to the current interpretation of ACA by the 

Department of Health and Human Services. 

As a result of the differences in how Exchange rules are being written and how Medicaid and CHIP rules are 

written, it is not possible to have a simple, streamlined application that relies on existing electronic data 

sources. The application must ask at least three different questions to determine who qualifies as Indian 

under the different programs. Those three questions take up a lot of space on an application which will be 

used by a lot of people who are not AI/AN, and they will confuse a lot of people who are AI/AN. If Exchanges 

use the same definition as Medicaid, CHIP and the Indian Health Service, they could use the electronic 

registration data base from the IHS as part of the application process. However, the more restrictive 

definition currently in use by Exchanges may require someone at every Exchange and at every Tribal 

government site to process paperwork that shows that an individual has a tribal enrollment card. Ironically, 

the ACA calls for self-attestation for almost every aspect of the application (except citizenship), and yet AI/ANs 

may be expected to provide documentation instead of using self-attestation to prove that they are a member 

of a Tribe or Alaska Native regional or village corporation. The Administration should be trying to make it 

easier for underserved individuals to enroll in health insurance through Exchanges, not more difficult. 

Operationally, it is going to be a nightmare to have different definitions of AI/AN for Medicaid, CHIP and 

Exchanges. Personnel at call centers, navigators, in-person assisters, and individuals working in Indian health 

clinics will have to explain to people why they are considered an Indian for one federally-funded program, but 

not for another. Explaining the benefits of this new program will be difficult enough. As health care providers 

bill Medicaid Plans and Qualified Health Plans, they will need to know whether cost sharing waivers apply for 

some AI/AN and not for others.

As people have changes in employment, income and family size, they will churn between Medicaid to 

Exchange coverage assuming that the same rules apply, only to find out later that they have been 

disenfranchised as AI/AN from Exchanges. 

This is a problem that can be solved easily by having Exchanges adopt the Medicaid definition of Indian and 

use the same types of verification that Medicaid uses. We didn’t agree, but understood the view of lawyers 

and others in HHS immediately after the law passed when they asserted that since there were three different 

“definitions,” these problems couldn’t be fixed without a “legislative fix.” However, HHS formally, and IRS 

informally, have agreed that the three statutory definitions have the same meaning. We know it is not likely 

that Congress will amend the ACA to fix this problem in the next few months while the single, streamlined 

applications are being designed. It is clearly time for the Administration to reconsider relying on a regulatory 

correction. 

There are many ways to justify aligning how these definitions are implemented to correspond to how the 

agencies most responsible for administering programs for Indians determine who is Indian. The attached 

paper discusses these. What is needed now is leadership at the highest levels to require that this problem is 

solved immediately through the issuance of regulations or similar guidance that applies the Medicaid 

definition of AI/AN to Exchanges. 

We would like to meet with you to discuss this issue and offer assistance to resolve it. For questions, please 

follow up with Jim Crouch, CRIHB Executive Director, at (916) 929-9761; or Jim Roberts, NPAIHB Policy Analyst, 

at (503) 347-7664. 

Sincerely yours, 

Michelle Hayward, Chairperson Andy Joseph, Jr., Chairperson 

California Rural Indian Health Board NW Portland Area Indian Health Board 

Redding Rancheria Tribal Council Member Colville Tribal Council Member 

Attachment: “Enabling Exchanges Implement a Streamlined Application Process: The Need for a Uniform 

Operational Definition of Indian to Efficiently and Accurately Identify Individuals Who Are 

Eligible for Special Benefits and Protections”

v.7, 2012‐09‐23a 

Enabling Exchanges Implement a Streamlined Application Process: 

The Need for a Uniform Operational Definition of Indian to Efficiently and Accurately Identify 

Individuals Who Are Eligible for Special Benefits and Protections 

1, 2 

as American Indians and Alaska Natives 

I. Executive Summary 

As a component of carrying out the Federal government’s special trust responsibility 3 to Indian Tribes 

and to American Indians and Alaska Natives (AI/ANs), the Patient Protection and Affordable Care Act 4 – 

inclusive of the expansion and permanent reauthorization of the Indian Health Care Improvement Act – 

authorized Indian-specific benefits and protections. The two health insurance exchange-related Indianspecific 

provisions (i.e., monthly enrollment periods and additional cost-sharing protections) are available 

only to AI/ANs enrolled in the individual market through an Exchange. 5 A third Indian-specific provision 

in the Affordable Care Act exempts AI/ANs from tax penalties enforced through the Internal Revenue 

Code (IRC) for not maintaining minimum essential coverage. 6 

In indicating who is eligible for these Indian-specific benefits and protections, the Affordable Care Act 

relies upon definitions of Indian found in three different, previously-existing federal laws. Each of these 

definitions specifies that an Indian is “a member of an Indian tribe”, but there are slight differences in the 

wording of what constitutes an “Indian tribe”. Given the nearly identical language across the definitions, 

in the final rule for establishment of Exchanges issued by the Centers for Medicare and Medicaid Services 

7, 8 

(CMS) the two Exchange-related definitions were determined to “operationally mean the same thing.” 

The Internal Revenue Service has not yet formally opined on the third, IRC-based definition of Indian. 9 

In addition to the ACA-established special benefits and protections for AI/ANs, there are Indian-specific 

cost-sharing protections under Medicaid that predate the ACA. 10 For purposes of determining eligibility 

for the Indian-specific Medicaid cost-sharing protections, in 2010 CMS promulgated regulations at 42 

C.F.R. § 447.50 that drew from a range of definitions in federal law (as a definition was not provided in 

the law) to create a comprehensive definition of Indian. 11, 

To ensure AI/ANs are able to access the Medicaid- and Exchange-related special benefits and protections 

and Exchanges are able to efficiently and consistently make eligibility determinations, and given the 

apparent agreement that the definitions of Indian applicable within the Exchange are operationally the 

same, the primary issues remaining to resolve are 1) whether operational guidance will be issued to aid in 

determining eligibility for Exchange-related Indian-specific benefits and protections and 2) whether any 

operational guidance that is issued will apply a uniform operational definition of Indian for application 

across both Medicaid and the Exchange. 

We encourage Exchange officials to seek the flexibility that appears to be available from HHS to fashion 

a uniform operational definition of Indian to be used across the Medicaid and Exchange-related 

programs. 12, 13 This is particularly important given the complexity of “Indian” determinations and as the 

Affordable Care Act mandated the creation of a streamlined eligibility determination process for 

Medicaid and Exchange programs that relies upon a single application form. If it is ultimately determined 

that applying a uniform operational definition of Indian to each of the Indian-specific benefits and 

protections is not acceptable to HHS, we recommend that an existing set of guidance materials (namely, 

the CMS Medicaid eligibility guidance for AI/ANs under 42 C.F.R. § 447.50) be used as the basis for 

Northwest Portland Area Indian Health Board Page 1 of 16

Indian eligibility determinations, with the identification of specific exceptions to these rules when 

necessary for any of the Indian-specific protections and benefits. 

II. Focus of This Paper 

v.7, 2012‐09‐23a 

This paper is intended to address two core issues of concern. First, the reliance on three different sections 

of federal law to define “Indian” under the Affordable Care Act has created confusion as to how an 

Exchange will implement the definitions for the different ACA protections and benefits that they apply. 

(Ironically, because the three definitions are actually nearly identical, the definitions themselves do not 

create this confusion.) Second, the Center for Consumer Information and Insurance Oversight 

(CMS/CCIIO), an agency within CMS with primary responsibility for ACA implementation, and the 

Internal Revenue Service (IRS) need to utilize the knowledge and experience of agencies responsible for 

implementing eligibility for Indian-specific health benefits prior to enactment of the ACA. The CMS 

Center for Medicaid and State Operations (CMS/CMSO), which is responsible for Medicaid operations 

including Indian-specific Medicaid protections, have developed regulations and materials to provide the 

operational guidance to determine who is a “member of an Indian tribe” (which is the core element under 

each definition of Indian) . An Exchange 14 will ultimately learn – as did CMS/CMSO – that they need 

detailed guidance materials to assist Federal, Tribal and State officials in determining that a person falls 

within the statutory definition of Indian. 15 

If implementation guidance is not rooted in the CMS/CMSO’s Medicaid experiences, or if no 

implementation guidance is provided beyond the definition itself, the results for American Indians and 

Alaska Natives are very likely to be a significant number of AI/ANs not gaining access to the benefits and 

protections for which they are eligible, as well as disruptions to an otherwise streamlined eligibility 

determination and enrollment process. For an Exchange, the results would likely be greater costs and 

longer processing times, as well as a heightened error rate among the Exchange staff and outside assisters. 

Each of these results would run counter to the expressed goals of the Affordable Care Act. 16 

This paper presents options for avoiding these potentially detrimental results when determining eligibility 

for Indian-specific benefits and protections through an Exchange. We believe the options presented are 

within the authority of an Exchange to implement, whether a state-based or Federally-facilitated 

Exchange. 

III. Background 

After a great deal of interaction with tribes, in March of 2012 CMS issued guidance that the two 

definitions of Indian that apply to Exchange-related protections are “operationally the same.” 17 This 

should largely mitigate the confusion generated from having to apply two different sections of federal law 

to determine who is eligible for the two Indian-specific protections available through an Exchange. 

Under each definition, the core criterion is that an Indian is “a member of an Indian tribe.” 

There is general acceptance that all tribes listed by the Bureau of Indian Affairs as Federally-recognized 

tribes are included in the definition of Indian tribe. But this is not the sole determination of which entities 

are included under “Indian tribe”, as that term is used in each of the statutory provisions cited in the ACA. 

In fact, the plain language of these definitions includes no reference to Federally-recognized Tribes. 

Instead, the three ACA-cited definitions include a list of entities – in fact the same list with the exception 

of the words “pueblo” and “group” not being included in all of the definitions – which includes 


v.7, 2012‐09‐23a 

“organized groups and communities,” including Alaska Native regional and village corporations. Because 

it is not readily apparent from a simple read of the definitions which entities are included in the 

description of “Indian tribes,” IHS and CMS both previously determined – for purposes of determining 

eligibility for IHS services and for Indian-specific Medicaid protections, respectively – that detailed 

guidance was necessary on which entities are included as “Indian tribes”, who is considered a “member” 

of such Indian tribes, and what documentation serves to prove one’s status as an “Indian”. 

It is important to point out that a basic principle of tribal sovereignty is that tribes can decide who their 

members are. This is very similar to the United States government deciding who can be a U.S. citizen. 

For the United States as well as for tribes, the definition of a citizen can change over time, 18 and there 

may be differences between countries (and tribes) as to what qualifies an individual to be a citizen. For 

some tribes, tribal membership confers at a specified age, such as 18. For other tribes, parents may apply 

for membership for their children at time of birth. The eligibility guidance issued by IHS and CMS 

accommodates such differences in tribal membership/citizenship procedures to ensure that all AI/AN 

persons intended by Congress to be eligible for such Indian-specific benefits and protections are in fact 

included. 

To date, for purposes of implementing the Indian-specific Exchange-related provisions of the ACA, the 

Department of Health and Human Services, and by extension CMS, has been reluctant to issue detailed 

guidance on the implementation of these definitions, particularly guidance that applies a uniform 

operational definition across the Medicaid and Exchange provisions. As expressed by HHS before it 

determined that the various statutory provisions cited in the ACA were operationally the same, there was 

concern that the ACA-specific definitions of Indian 19 might result in different benefits being available to 

different individuals because the definitions might cover different individuals. Thus, HHS concluded that 

its ability was constrained to apply in toto the operational guidance issued by CMS in the past, which 

included individuals eligible under each of the definitions of who is Indian. 

We understand there may be disagreements between the national tribal organizations and HHS on these 

matters. For example, some of the specific categories used for determining eligibility for Medicaid 

protections that are included under the CMS operational guidelines may be considered not to be within 

the narrower ACA-cited definitions. But, we believe that any exclusions of eligibility categories that may 

be required by HHS are identifiable, would be limited, and would enable the remainder of the CMS 

guidance to be relied upon for purposes of determining eligibility through an Exchange-facilitated, 

streamlined eligibility determination process. 

Simultaneously, if determined necessary by HHS and the Administration to do so, a legislative fix could 

be pursued with Congress in order to either solidify the application of a uniform operational definition or 

to eliminate the need to include specific exceptions to a uniform operational definition. 

IV. The ACA References Different Provisions of Federal Law in Defining Persons Eligible for 

Indian-specific Benefits and Protections 

In addition to the health insurance benefits made available to all Americans, including AI/AN, the 

Affordable Care Act established additional benefits and protections that are specific to American Indians 

and Alaska Natives. Table A presents (1) the Indian-specific protections and benefits contained in the 


v.7, 2012‐09‐23a 

ACA, (2) the section of federal law referenced defining eligibility for the provision, and (3) the lead 

implementing agency for the provision. 

Table A: Indian-Specific Provisions of Affordable Care Act 

Exchange-related Provisions IRS-related 

Special Enrollment 

Periods for AI/ANs 

Cost-Sharing 

Protections for AI/ANs 

Section of ACA ACA § 1311(c)(6)(D) ACA § 1402(d)(1) and (2) 

Section of federal 

law cited that 

defines eligibility 

for Indian-specific 

provision 

Lead 

implementing 

agency 

Section 4 of IHCIA: 

“(D) special monthly 

enrollment periods for 

Indians (as defined in section 

4 of the Indian Health Care 

Improvement Act).” 

Exchange (but with option of 

deferring to HHS for 

eligibility determinations) 

Section 4(d) of ISDEAA: 21 

“If an individual 

enrolled in any qualified 

health plan in the individual 

market through an Exchange 

is an Indian (as defined in 

section 4(d) of the Indian 

Self-Determination and 

Education Assistance 

Act (25 USC 450b(d)))…” 

Exchange (but with option of 

deferring to HHS for 

eligibility determinations) 

Exemption from 

Penalty for Failing to 

Maintain Minimum 

Essential Coverage 

ACA § 1501(b)) creating 

IRC 20 § 5000A(e)(3) 

Section 45A(c)(6) of the 

IRC: 

“[A]ny applicable 

individual for any month 

during which the individual 

is a member of an Indian 

tribe (as defined in section 

45A(c)(6)” 

Internal Revenue Service 

Two of the Indian-specific protections (special monthly enrollment periods 22 and additional cost-sharing 

protections 23 ) are available only to AI/ANs who are enrolled in the individual market through an 

Exchange. An Exchange, whether operated by a state or state-established entity or by HHS, has the 

responsibility for determining eligibility for these Exchange-related Indian-specific provisions, although 

an Exchange may rely upon HHS for determinations of eligibility for the premium tax credits and costsharing 

assistance as provided for under 45 CFR 155.302(c). A third provision (providing an exemption 

from any penalties for AI/ANs who do not maintain minimum essential coverage) is to be administered 

by the Internal Revenue Service, 24 We understand there will be coordination between determinations 

made by HHS and those that IRS must make, however the mechanics of the working relationship are as 

yet unknown to us. 

Eligibility for the special monthly enrollment periods is defined in section 4 of the IHCIA. Eligibility for 

the cost-sharing protections is defined in section 4(d) of the ISDEAA. Under both provisions, as well as 

under the Internal Revenue Code-related definition, an “Indian” is defined as a person who is a member 

of an Indian tribe. 

Exchange-related Definitions of Indian (IHCIA and ISDEAA) “Operationally Mean the Same Thing” 

Shown below is a combined definition of “Indian tribe” drawn from the definitions in the IHCIA and the 

ISDEAA that are referenced in the Exchange-related provisions. The definition of Indian tribe from the 

ISDEAA is shown verbatim, with any additional language from the IHCIA definition added and 

highlighted in underline. 


Indian tribe means any Indian tribe, band, nation, or other organized 

group or community, including any Alaska Native village or group or 

regional or village corporation as defined in or established pursuant to 

the Alaska Native Claims Settlement Act, which is recognized as 

eligible for the special programs and services provided by the United 

States to Indians because of their status of Indians. 25 

v.7, 2012‐09‐23a 

As is evident, the definition of an “Indian tribe” is nearly identical under each definition, with the 

exception that the IHCIA definition includes the phrase “or group” in addition to the language contained 

in the ISDEAA definition. This additional phrase creates no functional difference in meaning. It is 

understood that the “or group” phrase was included in the IHCIA definition in an attempt to include 

redundancies to assure that the definition is comprehensive and not misunderstood. 26 

The position that these definitions are effectively and operationally the same is held by national tribal 

organizations and advisory bodies, including the Tribal Technical Advisory Group to CMS (TTAG), the 

National Congress of American Indians (NCAI), the National Indian Health Board (NIHB), the Tribal 

Self-Governance Advisory Committee (TSGAC), and the Northwest Portland Area Indian Health Board 

(NPAIHB), among others. 27 In addition to being the position of these tribal organizations, the opinion that 

these two definitions “operationally mean the same thing” is held by the United States Government. 

CMS included guidance in the Final Rule on the establishment of Exchanges released in March of 2012. 

In the Final Rule, CMS noted: 

[S]ince both the ISDEAA and IHCIA operationally mean the same thing, 

there is uniformity among the definition of Indian for purposes of the 

Exchange-related benefits described in this final rule. We accept that the 

definitions of ‘‘Indian’’ as provided under section 4(d) of ISDEAA 

(codified at 25 U.S.C. 450 et seq.) and section 4 of IHCIA (codified at 25 

U.S.C. 1603) operationally mean the same thing: an individual who is a 

member of an Indian tribe. In their definitions of an ‘‘Indian tribe,’’ both 

of these acts have nearly identical language that refers to a number of 

Indian entities (tribes, bands, nations, or other organized groups or 

communities) that are included in this definition on the basis that they are 

“recognized as eligible for the special programs and services provided by 

the United States to Indians because of their status as Indians.” 28 

An Exchange would be well within the boundaries of this guidance if the Exchange considered persons 

who are eligible for the Exchange-related Indian-specific special monthly enrollment periods to be 

eligible for the Exchange-related Indian-specific cost-sharing protections, and vice versa. As such, a 

uniform operational definition could be fashioned to guide eligibility determinations for these Exchangerelated 

provisions of the ACA. 

IRC-related Definition of Indian: Providing an Exemption from Potential Tax Penalties 

The definition of an Indian tribe found in Internal Revenue Code (IRC) § 45A(c)(6) (referenced in the 

ACA for purposes of eligibility of Indians for the exemption from the penalty for not maintaining 

minimum essential coverage) is also identical to that in the ISDEAA, with one exception. 


Indian tribe means any Indian tribe, band, nation, pueblo, or other 

organized group or community, including any Alaska Native village or 

group or regional or village corporation as defined in or established 

pursuant to the Alaska Native Claims Settlement Act, which is 

recognized as eligible for the special programs and services provided by 

the United States to Indians because of their status of Indians. 29 

v.7, 2012‐09‐23a 

The IRC § 45A(c)(6) definition includes the word “pueblo”, as in “Indian tribe means any Indian tribe, 

band, nation, pueblo, or other organized group…” (For reference, the phrase “or group” is also shown in 

the definition above, although this phrase is only found in the IHCIA Sec. 4 definition.) To further 

support the contention that these definitions are not in fact different, dropping the word pueblo from the 

definition would not actually exclude pueblos. 30 This again makes the point that the differences among 

the three definitions of Indian tribe referenced in the ACA are without meaning, especially when one 

considers that the HHS regulations implementing the ISDEAA definition actually includes pueblos, 

although they are not expressly referenced in the statutory definition. 31 

The Internal Revenue Service has not yet formally issued an opinion on this issue. In different meetings 

of the Medicare, Medicaid and Health Reform Policy Committee of the National Indian Health Board, 

representatives of the IRS offered different approaches that IRS may take in consideration of who is 

Indian for purposes of waiving the tax penalty. On February 21, 2012, IRS representatives indicated that 

the IRS likely would accept a determination made by an Exchange as to who is “Indian” (in instances 

when an individual is certified as being an Indian by an Exchange.) 32 If this position holds, a 

determination by an Exchange of Indian status could be used to indicate eligibility for an exemption from 

tax penalties under the ACA, if any. However, it is unrealistic to assume that every AI/AN who files 

taxes will go to an Exchange to determine their eligibility for waiver of the tax penalty. Operationally, it 

would be very expensive for Exchanges to provide this information for the 1.5 million AI/ANs who are 

not expected to enroll in Exchange plans. Furthermore, the Bureau of Indian Affairs and Tribes have 

been the designated entities to make these determinations long before ACA. The Exchange would only 

make a determination if the individual provided the Exchange with documentation from either the BIA or 

a Tribe, and that in turn only adds a layer of bureaucracy and works against the concept of “streamlining.” 

At a later meeting on July 24, 2012, representatives of the IRS said that the IRS would likely use selfattestation 

of Indian status on the tax forms as the basis for waiving the penalty. 

V. Indian-specific Cost-sharing Protections under Medicaid 

In 1997, Congress enacted protections for AI/ANs in the Balance Budget Act (BBA). 33 The provision 

prevents a state from mandating an AI/AN enroll in a managed care entity if that entity is not an Indianspecific 

entity. Under the BBA provision, an Indian is identified as a person meeting the definition in 

34, 35 

section 4(c) of the Indian Health Care Improvement Act of 1976 (25 U.S.C. 1603(c)). 

In 2008, a second set of Indian-specific cost-sharing protections in the Medicaid program were enacted 

through the American Recovery and Reinvestment Act of 2009 (ARRA of Recovery Act). 36 These 

protections block the imposition of cost-sharing for AI/ANs for items or services furnished by Indian 

health programs, as well prevent a reduction in the amount of payment to an Indian health program as a 

result of no cost-sharing by AI/AN patients. But in contrast to the BBA and Affordable Care Act 

examples, other than indicating that the provision is applicable to “Indians”, a specific definition of Indian 


v.7, 2012‐09‐23a 

was not included in the Recovery Act nor was a reference to an existing definition of Indian in another 

federal statute provided. 

In order to provide guidance to states in determining eligibility for the Indian-specific Medicaid costsharing 

protections under ARRA, HHS promulgated regulations at 42 C.F.R. § 447.50 (effective July 1, 

2010) that drew from a range of definitions in federal law to create a single operational definition of 

Indian. 37 This CMS regulatory guidance drew from the statutory definitions of Indian in the IHCIA, the 

ISDEAA, and in the Snyder Act, which itself has no definition of Indian, but instead is viewed as broad 

underlying authority for all Indian health programs and other services to AI/ANs. 38 In doing so, “Indian” 

was defined to mean – 

any individual defined at 25 USC 1603(c)[IHCIA Sec. 4(13)], 1603(f) 

[IHCIA Sec. 4(28) , or 1679(b) [IHCIA Sec. 809(a)], or who has been 

determined eligible as an Indian, pursuant to Sec. 136.12 of this part. 

This means the individual: 

(i) Is a member of a Federally-recognized Indian tribe; 

(ii) Resides in an urban center and meets one or more of the following 

four criteria: 

(A) Is a member of a tribe, band, or other organized group of 

Indians, including those tribes, bands, or groups terminated since 

1940 and those recognized now or in the future by the State in which 

they reside, or who is a descendant, in the first or second degree, of 

any such member; 

(B) Is an Eskimo or Aleut or other Alaska Native; 

(C) Is considered by the Secretary of the Interior to be an Indian for 

any purpose; or 

(D) Is determined to be an Indian under regulations promulgated by 

the Secretary; 

(iii) Is considered by the Secretary of the Interior to be an Indian for any 

purpose; or 

(iv) Is considered by the Secretary of Health and Human Services to be 

an Indian for purposes of eligibility for Indian health care services, 

including as a California Indian, Eskimo, Aleut, or other Alaska Native. 

To further facilitate the eligibility determination process, CMS issued guidance on the documentation that 

may be provided to substantiate meeting the definition of Indian under 42 C.F.R. § 447.50. 

Documentation that an individual is an Indian could include Tribal 

enrollment and membership cards, a certificate of degree of Indian blood 

issued by the Bureau of Indian Affairs, a Tribal census document, or a 

document issued by a Tribe indicating an individual‘s affiliation with the 

Tribe. The Indian health care programs and urban Indian health programs 

are responsible for determining who is eligible to receive an item or 

service furnished by their programs and so a medical record card or 

similar documentation that specifies an individual is an Indian as defined 

above could suffice as appropriate documentation. These documents are 

examples of documents that may be used, but do not constitute an allinclusive 

list of such documents. 39 


v.7, 2012‐09‐23a 

In issuing this guidance, CMS commented, “We agree that administrative simplicity is very important. 

Therefore, we have defined the term ‘Indian’ for purposes of the exemption from premiums and cost 

sharing in broad terms that indicate the kinds of documentation that could support the application of the 

exception.” 40 

Although CMS did not issue a directive to states to apply § 447.50 uniformly for all Indian-specific 

Medicaid protections, including the BBA protections, in practice it appears that states and their eligibility 

workers may be applying a single definition of Indian for both sets of protections. 41 Given the more 

extensive operational guidance issued by CMS and a definition that would not result in the exclusion of 

persons for whom eligibility was intended, the definition of Indian promulgated by HHS under 42 C.F.R. 

§ 447.50 appears to be the uniform definition relied upon for Medicaid purposes, including Medicaid 

managed care. 

VI. Multiple Definitions of Indian May Impede Health Reform Goals 

Given the apparent agreement that the definitions of Indian applicable within the Exchange are 

operationally the same, the primary issues to resolve are 1) whether operational guidance will be issued to 

facilitate implementation of the Exchange-related Indian-specific benefits and protections and 2) whether 

the definitions of Indian under Medicaid and the Exchange will be applied in a uniform manner or with 

certain populations excluded under some definitions. 

First, what might be the problems created by applying the definitions of Indian differently? In short, 

applying the definitions of Indian differently may impede the central goals of health reform. 

A central goal of the Affordable Care Act is the streamlining of eligibility determinations for federal 

health insurance programs. 42 The creation of an Exchange serving each state 43 and the requirement that 

“the Exchange must use a single streamlined application to determine eligibility and to collect 

information necessary for: (1) enrollment… (3) cost-sharing reductions; and (4) Medicaid…” 44 are two 

primary means for achieving the streamlining of eligibility determinations. 45 But if an Exchange were 

required to apply different definitions of Indian when making eligibility determinations for Medicaid and 

Exchange-related programs – even if those definitions had very little difference in practice – the efforts at 

streamlining eligibility determinations could be significantly frustrated. Results of this would be likely to 

include – 

Increased inaccuracies in eligibility determinations: Enrollment staff, as well as AI/ANs 

themselves, could become confused – and ultimately frustrated – if they are required to 

understand obscure differences between the definitions. Without a thorough understanding of 

any differences in the application of the definitions, instances of inaccurate eligibility 

determinations being made are likely to increase. 46 

Unwarranted application of tax penalties: If an AI/AN were determined to be eligible for IHS 

services as an “Indian” (and therefor chose not to secure health insurance coverage), but was not 

determined to be eligible as an “Indian” for the exemption from the requirement to secure 

minimum essential coverage, this individual and his or her family could be subject to significant 

tax penalties. 

Interruption of streamlined process: Applying definitions differently will lead to individuals 

needing to interact with Exchange/Medicaid eligibility staff and tribal offices on multiple 


v.7, 2012‐09‐23a 

occasions as they navigate understanding the differences in the definitions and the different 

documents that might satisfy one definition but not another. 

Increased training necessary: If enforcement of multiple definitions of Indian were required to be 

carried out by an Exchange, enrollment staff of an Exchange and individuals and organizations 

involved in outreach to AI/AN 47 would need to be educated in the nuances under each definition 

of Indian, including understanding the differences, if any, in documentation permitted to satisfy 

each definition of Indian. 

Increased and uncertain cost-sharing liabilities: AI/ANs determined to be “Indian” for purposes 

of Medicaid will be afforded comprehensive Indian-specific cost-sharing protections under 

Medicaid. However, if the same individuals’ income increases and the individuals are then 

eligible for Exchange coverage and not Medicaid, they are likely to assume they are eligible for 

the comprehensive Indian-specific cost-sharing protections through the Exchange. If the 

Exchange determines that such individuals are not eligible for cost-sharing waivers on the basis 

of AI/AN status, this will become very confusing to both the individuals and the QHP. 

Uncertainty in the applicability of cost-sharing protections could result in significant liabilities to 

the affected individuals without their having the slightest awareness of this discrepancy. 

Uncertain application of cost-sharing protections within families by providers: Providers that 

serve AI/ANs, and do not collect cost-sharing for the AI/ANs because of their status of being an 

Indian for purposes of the Medicaid program, would need to understand that patients’ status as an 

Indian – or the status of just some of the members of an AI/AN household – might have changed 

when they secured health insurance coverage through an Exchange. The provider would then 

need to collect cost-sharing from some or all members of a previously “Indian” household. 

Reduced timeliness: The streamlined application process is being designed to rely, to the extent 

possible, on electronic verification of application-related information. The lack of a single 

operational definition would complicate (although not prevent) the use of automated databases 

that may be available for verification purpose, such as using the IHS beneficiary roster. 

Reduced involvement of AI/AN in insurance options: Even if the instances of an individual 

being determined to be “Indian” for one Exchange-related provision and not for another were rare 

(which we anticipate), this outcome would likely cast a shadow over AI/ANs involvement with 

ACA implementation more generally. For instance, AI/ANs may be much more reluctant to 

transition from the IHS-based coverage model to comprehensive Exchange coverage if they could 

end-up subject to significant cost-sharing requirements under a different, potentially unknown 

application of a definition of Indian. 

Individually and collectively, these results would run directly counter to the central goal of the ACA to 

expand access to affordable health insurance coverage for all Americans. And, these results could 

seriously impede the specific policy declarations of the United States Congress contained in ACA § 

10221(a) 48 for AI/ANs that: 

Congress declares that it is the policy of this Nation, in fulfillment of its special 

trust responsibilities and legal obligations to Indians— 


(1) to ensure the highest possible health status for Indians and urban Indians 

and to provide all resources necessary to effect that policy; 

… 

(3) to ensure maximum Indian participation in the direction of health care 

services so as to render the persons administering such services and the 

services themselves more responsive to the needs and desires of Indian 

communities; 

… 

VII. Addressing the Problem: Why a Uniform Operational Definition of Indian is Needed and 

Potentially Permitted 

v.7, 2012‐09‐23a 

To ensure AI/ANs are able to access the Medicaid and Exchange-related special benefits and protections 

that they are statutorily entitled to, and Exchanges are able to efficiently and consistently make accurate 

eligibility determinations, it is critical that – to the greatest extent possible – a uniform operational 

definition of “Indian” be employed. 

For purposes of determining eligibility for ARRA-enacted Indian-specific Medicaid cost-sharing 

provisions, HHS fashioned a single operational definition of Indian that was inclusive of the existing 

definitions of Indian contained in federal law. In the same manner, fashioning such an operational 

definition for purposes of the Medicaid and Exchange-related eligibility determinations would enable an 

Exchange to carry-out the requirements established for an Exchange (e.g., to conduct a streamlined 

eligibility determination process using a single application form) in an efficient and accurate manner. 

More specifically, extending the 42 C.F.R. § 447.50 guidance that was developed for Indian-specific 

Medicaid eligibility determinations as the uniform operational definition for both Medicaid and 

Exchange-related eligibility determinations would provide such uniformity of definition. 

In the Final Rule on the establishment of Exchanges which was promulgated on March 27, 2012, HHS 

may have offered states the flexibility to apply such a uniform operational definition of Indian. 49 

States Offered Flexibility in the Application and Verification of Definitions of Indian 

In response to comments submitted to HHS regarding the definition of Indian and verification of an 

individual’s status as an Indian, the following guidance was included in the preamble to the Final Rule: 

We are maintaining the verification process described under § 155.350 in 

this final rule. This verification is tied to a full exemption from costsharing, 

which could involve a substantial expenditure for the Federal 

government; consequently, we are specifying a more stringent process 

for verification though we note that § 155.315(h) allows the Exchange 

flexibility to modify this and other verification processes with HHS 

approval. In addition, we note that the documentation process described 

under § 155.350(c)(3) is similar to the documentation process utilized by 

the IHS when determining eligibility for American Indians/Alaska 

Natives who seek services at IHS facilities. 50 (Underline added.) 

In this response, HHS indicated that verification of Indian status would be required (and a simple 

attestation would not suffice), but the Exchange is afforded discretion in how it conducts the eligibility 

verification. 


v.7, 2012‐09‐23a 

The Final Rule response continued with the following, indicating that CMS recognizes that even the 

definitions of Indian with the potentially greatest variance are still only “slightly different.” 

The [Indian eligibility] standard for Exchanges is slightly different from the 

[Indian eligibility] standard for such [IHS] services, however, which means that 

the registration database for Indian Tribe, Tribal Organization, or Urban Indian 

Organization programs may not be a one-to-one match. With that in mind, we are 

working closely with the IHS and intend to work with States and tribes to 

determine whether and how electronic data can support this process. 51 

As referenced above, the definition used to determine eligibility for IHS services (which most closely 

resembles the CMS § 447.50 Medicaid eligibility guidance) has the most inclusive definition of Indian, 

and the Exchange-related definitions may be considered the most restrictive. 52 But still, these definitions 

are considered only “slightly different”. 

The language of 45 C.F.R. § 155.315(h) cited above which provides flexibility to Exchanges in 

implementation of eligibility determination processes, reads as follows: 

§ 155.315 (h) Flexibility in information collection and verification. HHS may 

approve an Exchange Blueprint in accordance with § 155.105(d) or a significant 

change to the Exchange Blueprint in accordance with § 155.105(e) to modify the 

methods to be used for collection of information and verification of information 

as set forth in this subpart, as well as the specific information required to be 

collected, provided that HHS finds that such modification would reduce the 

administrative costs and burdens on individuals while maintaining accuracy and 

minimizing delay, that it would not undermine coordination with Medicaid and 

CHIP, and that applicable requirements under § 155.260, § 155.270, paragraph 

(i) of this section, and section 6103 of the Code with respect to the 

confidentiality, disclosure, maintenance, or use of such information will be met. 53 

(Underline added.) 

As indicated, central to HHS approving a request by an Exchange for flexibility authorized under 45 

C.F.R. § 155.315(h) is a determination that “HHS finds that such modification would reduce the 

administrative costs and burdens on individuals while maintaining accuracy and minimizing delay, that it 

would not undermine coordination with Medicaid and CHIP…” Given the number of definitions of 

“Indian” involved and the nuanced differences across the definitions, the threshold requirements for 

applying the § 155.315(h) authority would seem to be readily satisfied if an Exchange were to rely upon a 

uniform operational definition of Indian, such as using the § 447.50 guidance from CMS, when 

determining eligibility for the Medicaid and Exchange-related Indian-specific provisions. 

A uniform operational definition would seem likely to result in – 

Administrative costs on state Exchanges being lessened; 

Paperwork burdens on individual AI/ANs being reduced; 

The overall accuracy and consistency of eligibility determinations across Medicaid and ACArelated 

provisions being increased; 


v.7, 2012‐09‐23a 

Delays in accessing the special benefits and protections afforded AI/ANs through the Affordable 

Care Act being reduced; 

The seamless coordination between Medicaid and Exchange-related programs being furthered; 

Participation by AI/ANs in the Exchange-related programs being heightened; and 

Clarity across providers and QHPs in the application of Indian-specific benefits and protections 

would be enhanced. 

If it is ultimately determined that full uniformity across the application of the definitions of Indian to each 

Indian-specific provision cannot be achieved, we strongly recommend that Exchanges use the CMS 

guidance on eligibility and documentation provided under § 447.50 as the base for Indian-specific 

eligibility determinations and identify specific exceptions (i.e., exclusions) from eligibility, as needed, for 

any particular Indian-specific provision. 

VIII. Conclusion 

We encourage Exchange officials – whether operated by a state or HHS – to seek the flexibility that 

appears to be available under the Affordable Care Act and its implementing regulations to fashion a 

uniform operational definition of Indian to be used across the Medicaid and Exchange-related programs in 

order to be able to carry-out a streamlined eligibility determination process using a single application 

form, with the result being eligibility determinations conducted more efficiency and more accurately. 

Previous eligibility guidance issued by CMS could be relied upon to implement the uniform operational 

definition. 

If it is determined that applying a single operational definition of Indian to each of the Indian-specific 

benefits and protections is not agreed to by HHS, we recommend that an existing set of guidance 

materials (namely the CMS Medicaid eligibility guidance for AI/ANs under 42 C.F.R. § 447.50) be used 

as the basis for Indian eligibility determinations with specific exceptions to these rules identified where 

necessary. 

As stated previously, national and regional tribal organizations support the application of a uniform 

operational definition of Indian for purposes of implementing the provisions of the Affordable Care Act. 

These include NCAI, NIHB, TTAG, TSGAC and NPAIHB. 54 These organizations believe that providing 

a uniform definition will ultimately lead to advances in the health status of AI/ANs by more effectively 

matching available resources to the needs of eligible AI/AN individuals. We stand ready to continue to 

work with state and federal Exchange officials to make the determination of Indian status an efficient and 

effective process. 

1 For a more detailed exposition of the issue of the definition of an Indian, see “Tribal Technical Advisory Group to 

CMS, Analysis of and Comment on Definition of ‘Indian’ in Proposed Rules to Implement Provisions of the Patient 

Protection and Affordable Care Act,” October 31, 2011, submitted to CMS and the IRS. (“TTAG Analysis”) 

2 

A separate paper will be prepared by Northwest Portland Area Indian Health Board (“NPAIHB”) discussing 

verification materials for documenting Indian status. 

3 

The Indian Health Care Improvement Act (“IHCIA”), Pub. L. 94-347, was permanently reauthorized and amended 

March 23, 2010, by § 10221(a) of the ACA. IHCIA § 103 reads, in part: 

Congress declares that it is the policy of this Nation, in fulfillment of its special 

trust responsibilities and legal obligations to Indians— 


v.7, 2012‐09‐23a 

(1) to ensure the highest possible health status for Indians and urban Indians and 

to provide all resources necessary to effect that policy; 

(2) to raise the health status of Indians and urban Indians to at least the levels set 

forth in the goals contained within the Healthy People 2010 initiative or 

successor objectives; 

(3) to ensure maximum Indian participation in the direction of health care 

services so as to render the persons administering such services and the services 

themselves more responsive to the needs and desires of Indian communities; 

(4) to increase the proportion of all degrees in the health professions awarded to 

Indians so that the proportion of Indian health professionals in each Service area 

is raised to at least the level of that of the general population; 

(5) to require that all actions under this Act shall be carried out with active and 

meaningful consultation with Indian tribes and tribal organizations, and 

conference with urban Indian organizations, to implement this Act and the 

national policy of Indian self-determination; 

(6) to ensure that the United States and Indian tribes work in a government-togovernment 

relationship to ensure quality health care for all tribal members; and 

(7) to provide funding for programs and facilities operated by Indian tribes and 

tribal organizations in amounts that are not less than the amounts provided to 

programs and facilities operated directly by the Service. 

4 

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), are collectively referred to herein as the “Affordable Care Act” or 

“ACA”. 

5 

Health insurance exchanges (“Exchanges”) are to be available by October 1, 2013 in each State in order to allow 

enrollment in new health insurance coverage options effective 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. 

6 

ACA § 1501(b) / IRC § 5000A(e)(3). 

7 

See Federal Register, March 27, 2012, CMS, “Patient Protection and Affordable Care Act; Establishment of 

Exchanges and Qualified Health Plans,” (CMS-9989-F), Vol. 77, No. 59, page 18346. (“Final Rule”) The 

Department of Health and Human Services (HHS) and CMS did not opine on the definition of Indian pertaining to 

the exemption from tax penalties afforded AI/ANs under ACA § 1501(b) as it falls within the Internal Revenue 

Code. (See IRC § 5000A(e)(3).) CMS did determine that the two Exchange-related definitions (contained in the 

IHCIA and the Indian Self-Determination and Education Assistance Act) “operationally mean the same thing.” 

8 

The position that these definitions are effectively and operationally the same is also held by numerous tribes and 

tribal organizations, including the National Congress of American Indians (“NCAI”), the National Indian Health 

Board (“NIHB”), the Tribal Technical Advisory Group to CMS (“TTAG”), the Tribal Self-Governance Advisory 

Committee (“TSGAC”), and the Northwest Portland Area Indian Health Board (NPAIHB”), among others. 

9 

In a meeting of the Medicare, Medicaid and Health Reform Policy Committee of the National Indian Health Board 

on February 21, 2012, IRS representatives indicated that the IRS likely would defer to the uniform determination 

made by an Exchange as to who is “Indian” and as such qualifies for an exemption from tax penalties under the 

ACA. 

10 

These cost-sharing protections for AI/ANs include those established under § 5006 of the American Reinvestment 

and Recovery Act of 2009, Pub. L. 111-5 and those enacted as part of the Balanced Budget Act of 1997 (Social 

Security Act § 1932(a)(2)(C).) 

11 

See 42 C.F.R. § 447.50, promulgated May 28, 2010. In particular, these regulations drew from the definitions of 

Indian in the Snyder Act, the IHCIA, and the Indian Self-Determination and Education Assistance Act 

(“ISDEAA”). A second set of Indian-specific Medicaid protections was enacted in the Balanced Budget Act of 


v.7, 2012‐09‐23a 

1997. The provision amended section 1932(a)(2)(C) of the Social Security Act and is codified at 42 U.S.C. 1396u- 

2(a)(2)(C), with regulations issued at 42 C.F.R. § 438.50(d)(2). 

12 

See discussion in the Final Rule at 77 Fed. Reg. 18383; and see 45 C.F.R. § 155.315(h) “Flexibility in information 

collection and verification” at Final Rule, 77 Fed. Reg. 18455. 

13 

Again, the range of Indian-specific eligibility determinations include the cost-sharing and monthly enrollment 

protections in the individual market through an Exchange, eligibility for Medicaid cost-sharing and managed care 

protections, and the exemption from penalties for AI/AN not securing minimum essential coverage. 

14 

This issue is of concern under state-based Exchanges as well as the Federally-facilitated Exchange (FFE). 

15 While these regulations and other materials demonstrate that the statutory definitions can be reconciled, mere 

restatement of the statutory language is not sufficient to facilitate accurate eligibility determinations. 

16 See Federal Register, Vol. 75, No. 148, August 3, 2010, Request for Comments, “Planning and Establishment of 

State-Level Exchanges,” Section G. Enrollment and eligibility, Office of Consumer Information and Insurance 

Oversight, HHS, page 45588, which includes “additional requirements to assist Exchanges by… simplifying and 

coordinating enrollment in the Exchanges, Medicaid and the Children’s Health Insurance Program (CHIP).” 

17 77 Federal Register 18346. 

18 

For example, on October 30, 2000, President Clinton signed into law H.R. 2883, the Child Citizenship Act of 

2000. The new law, Public Law 106-395, amends the Immigration and Nationality Act (INA) to permit foreign-born 

children — including adopted children — to acquire citizenship automatically and immediately if they meet certain 

requirements, rather than having citizenship conferred only after an application process is completed. This law 

became effective on February 27, 2001. 

19 

ACA § 1311(c)(6)(D) referring to section 4 of the IHCIA and codified at 25 U.S.C. 1603; ACA § 1402(d)(1) and 

(2) referring to section 4(d) of the ISDEAA and codified at 25 U.S.C. 450 et seq.; and ACA § 1501(b)) creating 

IRC § 5000A(e)(3) which refers to section 45A(c)(6) of the Internal Revenue Code. 

20 

The Internal Revenue Code. 

21 The ISDEAA, Pub. L. 93-638. 

22 

The special monthly enrollment periods are described in 45 C.F.R. § 155.420(d)(8). An AI/AN may enroll in a 

health plan or change from one health plan to another one time per month. 

23 

See ACA § 1402(d)(1) and (2). The additional cost-sharing protections are described in 45 C.F.R. § 155.300(a) 

and (b)). Under ACA § 1402(d)(1), the cost-sharing protections encompass a waiver of all cost-sharing for an 

AI/AN individual whose household income is not more than 300 percent of the Federal poverty level. Under ACA § 

1402(d)(2), there is no cost-sharing for an AI/AN individual of any income level when furnished an item or service 

directly or through referral by an Indian Health Care Provider. “Indian Health Care Providers” are comprised of the 

Indian Health Service, Tribes and tribal organizations, and urban Indian organizations. Collectively, these entities 

are also sometimes referred to as “I/T/U”. The Indian Health Service means the agency of that name within the U.S. 

Department of Health and Human Services (“HHS”) established by IHCIA § 601 (25 USC §1661). The terms 

“Indian tribe,” “tribal organization,” and “UIO” have the meaning given those terms in IHCIA § 4 (25 USC §1603). 

The issuer of a health plan shall not reduce the payment to an Indian Health Care Provider by the amount of any 

cost-sharing that would be due from an AI/AN but for this provision. The Secretary of HHS is to pay to the health 

plan the amount necessary to reflect the increase in actuarial value of the plan required by reason of this provision. 

24 

The determination of eligibility for this exemption is not within the functions of an Exchange. The IRS has 

responsibility for implementing this Indian-specific protection, which is found in IRC § 5000A(e)(3) and waives the 

penalties for AI/ANs who do not maintain minimum essential coverage, although the IRS may rely upon an 

Exchange’s determination of who is Indian for those individuals who have been determined to be “Indian” for 

purposes of Exchange-related provisions. 

25 

Wording contained in IHCIA Sec. 4(14) and ISDEAA Sec. 4(d), except that the double underlined words (“or 

group”) are only contained in IHCIA Sec. 4(14). 

26 

See TTAG Analysis, page 6. 

27 

TTAG October 2010; NCAI Res. # ABQ-10-080, November 2010, NIHB Res. 10-01, October 2010; TSGAC 

February 2011; and NPAIHB, October 21, 2010. 


28 Final Rule, 77 Fed. Reg. 18346. 

v.7, 2012‐09‐23a 

29 

Wording contained in IHCIA § 4(14), ISDEAA § 4(d), and IRC § 45A(c)(6), except that the underlined word 

(“pueblo”) is only contained in IRC § 45A(c)(6) and the double underlined words (“or group”) are only contained in 

IHCIA Sec. 4(14). 

30 

This is the result because pueblos are also considered to be Indian Tribes, nations, organized groups, and 

communities recognized as eligible for the special programs and services provided by the United States to Indians 

because of their status of Indians. 

31 

25 C.F.R. § 900.6 (HHS and Department of the Interior (―DOIǁ) Title I), 25 C.F.R. § 1000.2 (DOI Title IV), 42 

C.F.R. § 137.10 (Title V). These regulatory definitions also include ―rancherias and colonies. 

32 

A significant percentage of American Indians and Alaska Natives that seek an exemption from the tax penalties 

may not engage an Exchange as the AI/AN individuals may have determined not to pursue health insurance 

coverage. For these individuals, it is assumed attestations would be made and/or documentation would be provided 

directly to the IRS. 

33 

Public Law 105-33. The primary protection established is “A State may not require… the enrollment in a 

managed care entity of an individual who is an Indian (as defined in section 4(c) of the Indian Health Care 

Improvement Act of 1977 of 1976 (25 U.S.C. 1603(c)) unless the entity is one of the following [Indian 

organizations] (and only if such entity is participating under the plan)… ” 

34 

For purposes implementing the protections afforded AI/AN in the Balanced Budget Act of 1997, see 42 C.F.R. § 

438.50(d)(2). 

35 

In referencing subsection (c) of section 4 of the IHCIA, this definition of Indian is more restrictive than the 

reference to “Indian” under the IHCIA for purposes of the special monthly enrollment period for AI/ANs enrolled in 

the individual market through an Exchange (authorized under ACA § 1311(c)(6)(D)). 

36 

These cost-sharing protections for AI/ANs were established under § 5006 of the American Reinvestment and 

Recovery Act of 2009, Pub. L. 111-5. 

37 

See 42 C.F.R. § 447.50, promulgated May 28, 2010. 

38 

The Snyder Act is the primary statute authorizing the Federal government to provide health care to Indians and 

implementing the unique Federal obligations to Indians. It directs and authorizes HHS to “direct, supervise, and 

expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the 

Indians throughout the United States” for the “relief of distress and conservation of health.” 25 U.S.C. § 13. 

39 

Medicaid Program; Premiums and Cost Sharing, 75 Fed. Reg., No. 103, pp. 30, 244, 30,248 (May 28, 2010). 

40 

Medicaid Program; Premiums and Cost Sharing, 75 Fed. Reg., No. 103, p. 30247. 

41 

For example, in a recent Section 1115 waiver application from the State of Kansas, a single operational definition 

of Indian was applied to both sets of Indian-specific Medicaid protections. 

42 

Federal Register, Vol. 75, No. 148, August 3, 2010, Request for Comments, “Planning and Establishment of 

State-Level Exchanges,” Section G. Enrollment and eligibility, Office of Consumer Information and Insurance 

Oversight, HHS, page 45588. 

43 

ACA § 1311 and 45 C.F.R. § 155.100. 

44 

ACA § 1413(b) and 45 C.F.R. § 155.405(a). “CHIP” refers to the Children’s Health Insurance Program under 

title XXI of the Social Security Act. 

45 

An additional approach to streamlining eligibility across federal programs is the implementation of a common 

methodology (“modified adjusted gross income”) for determining household income, as authorized by ACA § 1401 

/ IRC § 36B(d)(2)(B). 

46 

Conversely, as it appears to occur today under Medicaid, to simplify implementation a state or a subset of 

Exchange/Medicaid eligibility staff in a state might default to applying one definition for all Indian-specific 

purposes in a state. AI/ANs applying on one occasion or in one state may be found to be eligible whereas the same 

AI/ANs would be found to be ineligible on another occasion or in another state, or vice versus. 

47 

Such as grantees under the Navigator program authorized under ACA § 1311(i) or “in-person assisters”. See 45 

C.F.R. § 155.210. 


v.7, 2012‐09‐23a 

48 

Enacted through the passage of the ACA, Congress made the declarations of national Indian health policy in 

IHCIA § 103. 

49 

See discussion in the Final Rule at 77 Fed. Reg. 18383; and see 45 C.F.R. § 155.315(h) “Flexibility in information 

collection and verification” at Final Rule, 77 Fed. Reg. 18455. 

50 

Final Rule, 77 Fed. Reg. 18383. 

51 


52 

An additional definition is used for purposes of determining eligibility for services through the Indian Health 

Service, although this generally aligns with the guidance under 42 C.F.R. § 447.50. 

53 


54 

NCAI Res. # ABQ-10-080, November 2010, NIHB Res. 10-01, October 2010; TTAG October 2010; TSGAC 

February 2011; and NPAIHB, October 21, 2010. 


[Type text] [Type text] [Type text] 

CALIFORNIA RURAL INDIAN HEALTH BOARD 

ANALYSIS OF MEDICAID 

PAYMENTS FOR 

AMERICAN INDIANS & 

ALASKA NATIVES 

Centers for Medicare and Medicaid Services: 

American Indian & Alaska Native Data Project 

FEEDBACK DRAFT for the Tribal Technical Advisory Group 

C M S T R I B A L A F F A I R S G R O U P 

2012

Prepared by 

James Crouch MPH Chair, CMS TTAG Data Subcommittee 

and Carol Korenbrot PhD 

California Rural Indian Health Board Inc. 

Funded by 

The Centers for Medicare and Medicaid (CMS) Tribal Affairs Group through the National Indian Health 

Board pursuant to an award from the Indian Health Service (IHS), following an intra-departmental 

delegation of authority (CMS IDDA-09-50 and IHS 2-RAP-09-0080-DA). 

Please provide feedback to: 

California Rural Indian Heath Board (CRIHB) 

Phone: 916.929.9761 

Fax: 916.929.7246 

Email: carol.korenbrot@crihb.net

Contents 

SUMMARY I 

Findings .......................................................................................................................................................................................................... ii 

Conclusions and Recommendations .................................................................................................................................................. iii 

INTRODUCTION 1 

Purpose of this Report .............................................................................................................................................................................. 2 

METHODS 3 

Data Sources ................................................................................................................................................................................................. 3 

Medicaid-IHS Linked Person Summary File ............................................................................................................................... 3 

Medicaid Inpatient, Prescription Drug and Other Services Claims Files ........................................................................ 3 

Analysis Groups ........................................................................................................................................................................................... 4 

IHS AIAN .................................................................................................................................................................................................... 4 

Other AIAN ............................................................................................................................................................................................... 5 

Whites (Non-Hispanic) ........................................................................................................................................................................ 5 

Analysis Plan ................................................................................................................................................................................................. 6 

Outcome of Analysis: Mean Total Payment per Medicaid Recipient ................................................................................ 6 

Determinants of the Outcome .......................................................................................................................................................... 7 

Statistical Adjustments ........................................................................................................................................................................... 15 

FINDINGS 19 

Payments for AIAN Medicaid Recipients ........................................................................................................................................ 19 

Recipients with Fee-for-Service Medical Services ................................................................................................................. 19 

Recipients in Medical Comprehensive Managed Care Plans (CMCP) ............................................................................. 28 

Compiled Findings for All Analyses and Areas ........................................................................................................................ 32 

Medicaid Paid Fraction of Total Health Care Costs of IHS Active Users ............................................................................ 37 

IHS Calculated Health Care Costs for IHS Active Users ........................................................................................................ 37 

Medicaid Fraction of IHS Active User Health Care Costs ..................................................................................................... 38 

Medicaid Fraction Paid to IHS and Tribal Providers for IHS Active Users ................................................................... 39 

CONCLUSIONS AND RECOMMENDATIONS ..................................................................................................................................... 41 

IHS AIAN Payments Compared to Others ....................................................................................................................................... 41 

Medicaid-enrolled IHS Active Users without IHS Program Medicaid claims .................................................................. 42 

Medicaid-paid Fraction of IHS Active User Costs ........................................................................................................................ 42 

REFERENCES 43

Summary 

T 

he Indian Health Service (IHS) provides only part of the health care needed by the American Indians and 

Alaska Natives (AIAN) who rely on the IHS health care system because of the limited funding 

appropriated to the agency by the federal budget. The largest alternate resource to IHS for the health 

care funding of AIAN who rely on the IHS health care system is Medicaid. Medicaid pays for care received 

not only at the IHS and tribally operated health care facilities, but from other providers when specialized or 

emergency care is needed. The federal Medicaid program pays 100% of state Medicaid claims from IHS health 

care system providers for IHS funded services provided to AIAN (IHS Program claims). Together with its 

companion program, the Children’s Health Insurance Program (CHIP), Medicaid has grown to provide a 

substantial but largely unknown fraction of the coverage of health care for the AIAN who use the IHS system. 

The first objective of this report to determine whether Medicaid (including the Medicaid portion of CHIP not 

operated by states alone) pays as much for the personal health care services of AIAN who rely on the IHS system 

of health care providers (IHS AIAN) as it does for other Medicaid recipients. If the per capita amounts paid for 

the IHS AIAN are comparable to those of others, then a basic measure of health care equity for AIAN served by 

the IHS system has been achieved. If not then efforts are needed to achieve equity. 

A second objective is to determine whether there are any Areas of the IHS health care delivery system, or 

subgroups of AIAN who rely on the IHS system that do not have Medicaid payment levels as high as those of 

other AIAN subgroups served by the IHS System. Where the payment levels for IHS AIAN are not as high as 

those of others in an Area, it can be because IHS AIAN have more difficulties obtaining Medicaid paid care, or 

because the state and IHS system provider need to work more closely to see that Medicaid claims are filed and 

paid successfully. If IHS system providers do not file and collect claims for services provided to Medicaid 

enrolled AIAN they serve, they are in effect substituting IHS funding for Medicaid funding of health care costs. In 

this report, analyzing only the Medicaid data of the counties of the IHS Areas allows comparison of payments 

across IHS Areas and using Medicaid data that has been linked with IHS registry data allows examination of 

AIAN subgroups served by the IHS System. 

A third objective of this report is to determine what fraction of the personal health care costs of the AIAN user 

population of the IHS system is actually provided by Medicaid payments. The IHS has current data on the 

Medicaid collections of the IHS and tribal facilities that they operate, but not the tribal facilities operated by 

tribes. About one-third of the IHS system facilities are tribally-operated facilities. The IHS estimates that about 

25% of the per capita costs of health care needed by AIAN they serve is paid by third-parties including Medicaid, 

Medicare and private insurance. The AIAN survey data on which this calculation is based is now more than 20 

years old, however. Medicaid payment data provides a way to update the Medicaid portion of the third-party 

payment fraction. In addition it offers a way to estimate how much this Medicaid fraction varies across IHS 

Areas. Determination of the fraction is critical because the IHS estimates that it provides only about 54% of the 

per capita costs of health care needed by AIAN they serve. The extent to which the 25% fraction is too high, 

underestimates the remaining unmet health care need of the AIAN, the extent to which the 25% fraction is too 

low overestimates the unmet health care need. The IHS allocates new federal funds it receives to the IHS and 

tribally-operated facilities based on its calculated estimates of the unmet health care need of the AIAN served by 

the facilities. 

To achieve the first two objectives, after excluding longterm care and institutionalized Medicaid recipients the 

per capita payments for six different types of Medicaid recipients of the remaining medical, behavioral health

Summary 

and dental services were analyzed with data from 2006. Medicaid recipients were classified depending on 

whether they were under age 65 or not, enrolled all year in Medicaid or not, and whether they received only feefor-service 

medical care or had any of their medical services in managed care. The payments for each type of 

Medicaid recipient were risk-adjusted for differences between the IHS AIAN and comparison groups with 

respect to age, sex, disability, and dual-enrollment with Medicare. Adjustments for differences among the 

groups in morbidity were possible for those enrolled all year in Medicaid. The payments were also adjusted for 

variation in health care prices across the IHS Areas. 

To achieve the third objective, the unadjusted mean per capita payments were determined for all AIAN Medicaid 

recipients who used IHS system providers in each Area, except those with institutionalized or longterm care. 

These payments were divided by the IHS estimated per capita health care costs for a standard personal health 

care service plan for AIAN in each IHS Area in 2006-2007 adjusted for differences in age, sex, health status, and 

health care prices. These adjusted per capita health care costs indicated the different payment amounts 

required in the different Areas from all payers combined to provide the AIAN in the Area the health care they 

need. 

Findings 

The total amount of Medicaid funds paid for personal health care services in 2006 for 550,000 IHS AIAN 

Medicaid enrollees living in the service delivery Areas of IHS and tribally operated facilities for paid personal 

health care services was $ 2.05 billion. An additional $15 million was paid by other third-party payers (mainly 

private insurance) to cover payments for the claims filed with Medicaid. Of those IHS AIAN Medicaid enrollees 

496,000 were recipients of Medicaid paid services during the year full or restricted benefits. For the 472,000 

recipients with full benefits $420 million was paid to IHS and tribally operated health care facilities or their 

providers of Contract Health Service referral care. 

Overall Medicaid risk-adjusted payments for personal health care services of IHS AIAN were higher than selfdeclared 

AIAN who did not use the IHS health care system and of whites living in the same counties. 

There were exceptions to the general finding in four of the 12 IHS Areas where risk-adjusted payments were 

lower: In Aberdeen and Billings Areas the payments were lower for most types of Medicaid recipients analyzed 

when compared to those of self-declared AIAN who did not use the IHS system or whites. In Albuquerque Area 

the payments overall were lower for whites, but higher for self-declared AIAN. In Oklahoma Area the payments 

were lower for self-declared AIAN, but higher for Whites. 

The overall results did not depend on whether the payments were adjusted for differences in morbidity or not, 

or whether IHS AIAN Medicaid recipients received their medical care in a fee-for-service or managed care 

system. The medical care services that contributed most to fee-for-service payments for IHS AIAN was 

outpatient care, rather than hospital care or prescription drugs. There were very little if any contribution of IHS 

Program Medicaid claims for prescription drugs to the Medicaid payments for IHS AIAN outside of Bemidji Area. 

One subgroup of AIAN served by the IHS system had much lower risk-adjusted payments than any other AIAN 

or white comparison group. This group was that of AIAN who were identified as IHS Active Users in the IHS 

data, and had Medicaid paid claims, but no Medicaid IHS Program paid claims. This group who constituted 33% 

of the IHS AIAN Medicaid recipients consistently had lower payments across all IHS Areas. The lower payments 

for IHS AIAN who were Active Users without IHS provider claims were found even among Medicaid recipient 

types where differences in morbidity could be adjusted. The persistence of this affect across all IHS Areas and 

Medicaid recipient types implied that IHS these AIAN were potentially receiving IHS services from IHS system 

ii

Summary 

providers that were either not being billed or paid or both. This would be substitution of limited IHS funding for 

Medicaid covered care. 

The ‘Medicaid fraction’ of health care costs needed by the IHS AIAN Active User population that is paid by 

Medicaid (and Medicaid-CHIP) for personal health care costs is at least 25% in 9 of 12 IHS Areas, but varies 

from 19% to 65% depending on the Area. Areas with the lowest fraction of about one-fifth are Nashville (19%) 

and Oklahoma (21%). Aberdeen, California, Albuquerque, Portland and Bemidji Areas have mid-range fractions 

of between a little more than one quarter and a little less than one-third (27% to 31%). Alaska and Billings are 

in the middle of the Area rankings with a little more than one-third of the costs paid by Medicaid (34% to 38%). 

It was found that very high Medicaid payments in the state of Arizona for AIAN contributes to the highest 

Medicaid fractions found: nearly one half for Navajo and Phoenix Areas (46% and 49% respectively) and nearly 

two-thirds (65%) in Tucson Area. 

Conclusions and Recommendations 

The findings reported here from 2006 support the general conclusion that in most Areas the IHS system 

providers and the state Medicaid programs with which they interface in these Areas were as a whole are doing 

well at billing and collection for services provided to AIAN Medicaid recipients in the IHS system. 

In Aberdeen, Billings, Albuquerque and Oklahoma Areas, it is possible that either the IHS system or others who 

provide Medicaid paid care could improve billing and collection. Alternatively, in Albuquerque Area the reason 

that lower payments were found only compared to self-declared AIAN who do not use the IHS system could be 

because these other AIAN have higher demands for health care when ill because they are not in the IHS system. 

The morbidity risk-adjustment is only a partial adjustment for health status differences, because it depends on 

the extent to which people use their Medicaid health care provider for completeness. 

In every IHS Area there were IHS Active User Medicaid recipients for whom billing and collection could be 

improved. This group with no IHS Program claims and such low risk-adjusted Medicaid payments that it is 

likely that their IHS system providers are not billing or collecting for a portion of the care of these AIAN they 

serve. In addition, IHS system providers were not billing or collecting for prescription drugs. 

The IHS estimation of unmet need of the AIAN user population for health care funding needs to use more 

recent Medicaid payment data and recognize higher levels of coverage of the health care costs by Medicaid and 

Medicaid-CHIP programs, and the variation of the coverage across IHS Areas. Data like that analyzed in this 

report but restricted to services included in the Federal Equivalent Health Benefit plan. Medicaid benefits vary 

in the state programs, though more and more states are starting to provide only the mandatory services, and 

dropping the optional benefits that made the services provided across states particularly variable. 

iii

Introduction 

The Indian Health Service (IHS) provides only part of the health care needed by the AIAN who rely on the IHS 

health care system because of the limited funding appropriated to the agency by the federal budget process. 

Funding of the agency has grown in recent years but has not caught up with the growth of the low income AIAN 

population, the amount or kinds of specialized care needed, and the increases in health care costs. The IHS 

estimates that they provide only 54% of the health care funds needed for the AIAN user population. 

The largest and most important alternate resource to IHS for the health care funding of AIAN who rely on the 

IHS system is Medicaid. Together with its companion program, the Children’s Health Insurance Program (CHIP), 

Medicaid has grown to provide a substantial but largely unknown fraction of the coverage of health care for the 

AIAN user population of the IHS system. Though the numbers of the user population enrolled in Medicaid and 

CHIP has grown substantially over the years, it has been a challenge for IHS and tribally operated health care 

facilities accustomed to annual appropriations of federal funds to bill and collect daily claims payments from 

state Medicaid programs or private Medicaid managed care plans. Even with Medicaid coverage, it can also be a 

challenge for AIAN to obtain the specialty medical care and non-medical services they need from providers 

outside the IHS system when they are required. 

There has been little reliable data on how much Medicaid funding has grown to cover care the Medicaid enrolled 

user population of the IHS system of providers since a household survey of AIAN who rely on the IHS system 

was conducted in 1987. While the IHS releases its estimates of total funds gathered from third-parties annually 

for the facilities they operate, it is not known how this compares to what is collected at tribally operated 

facilities, nor how it breaks down on a per capita basis. 

We previously analyzed Medicaid MSIS online data for 2005 on paid claims to IHS system providers on a stateby-state 

basis for 2005 (Crouch et al, 2009). That aggregate data could not be used to determine the per capita 

funding, or portions of funds spent on IHS system and other providers. The data within states was often from 

more than one IHS Area. We then analyzed data extracted from the MSIS data into analytical files for 2004 and 

provided estimates of per capita payments for AIAN who had Medicaid (or Medicaid-CHIP) IHS Program claims 

in each IHS Area (Crouch et al, 2010). This data could also be compared to per capita payments for AIAN who did 

not have such claims and were likely not to have access to the IHS system. It could also be compared to per 

capita payments for non-Hispanic Whites living in the same counties. But it could not be determined what the 

total number of AIAN Medicaid enrollees who were users of the IHS system. The extent to which there were 

AIAN users of the IHS system without Medicaid IHS Program claims paid was an important factor in 

determining the potential amounts of funds that IHS system providers might not be collecting. 

The data needed to reliably estimate what Medicaid (and Medicaid-CHIP) contribute to cover the health care 

costs of AIAN who are users of the IHS system is Medicaid payment data linked to IHS registry data. With such 

linked data it is possible to determine how per capita levels of payment for AIAN in the IHS system compare 

with those for AIAN not in the system, and to what extent AIAN in the IHS system with Medicaid paid claims do 

not have Medicaid IHS Program paid claims. Even more importantly, with Medicaid data linked to IHS registry 

data it is possible to determine the fraction of total health care costs of the AIAN user population in the IHS 

system is paid by Medicaid and Medicaid-CHIP programs. 

1

Introduction 

Reliable determination of the proportion of AIAN health care costs covered by this largest source of third-party 

payments in the IHS system is critical. To determine how to allocate any new funds that it receives for health 

care services among its system providers, the IHS calculates the unmet need for health care funds of the AIAN 

user population of its system providers by subtracting from the total calculated need the amount of funding 

provided by both the IHS and these alternate sources. The IHS uses data from that 1987 household survey of 

AIAN to estimate that Medicaid, Medicare and other third party coverage provides to allocate new health care 

funds to IHS and tribal facilities. Because of the relative unreliability of the aging household survey data, they 

estimate that a fixed 25% of the health care funds needed at any given Service Unit in the system is provided by 

third-party payers. They are unable to determine how this varies across the service delivery areas of the 

various Service Units. 

Purpose of this Report 

The first objective of this report is to determine how much the Medicaid and Medicaid-CHIP programs pay for 

the personal health care services of AIAN served by IHS provider system, and then compare those payment 

levels to how much is paid for AIAN without access to the IHS system of care, and for non-Hispanic white people 

living in the same counties. To achieve this objective it is necessary to understand how variation in enrollee 

characteristics and Medicaid payment systems determine the differences in the Medicaid funds paid for the 

three groups. Then adjusting for these determinants, we analyze how Medicaid payments for the three groups 

vary across the IHS Areas for all three groups of Medicaid enrollees. 

A second objective is to determine what fraction of the IHS Active User population with Medicaid paid claims, 

does not have any IHS Program Medicaid paid claims and whether their per capita costs are lower than 

expected compared to IHS Active Users with IHS Program Medicaid paid claims, and the other AIAN and white 

comparison groups. If their Medicaid per capita payments are lower than the other groups after adjustments 

for determinants of payment differences, this implies that the rest of their health care costs are not being paid to 

IHS providers by Medicaid. To achieve this objective we divide the IHS system users with Medicaid paid claims 

into those who were IHS Active Users without IHS Program Medicaid paid claims and those with IHS Program 

Medicaid paid claims and determine how adjusted Medicaid per capita payments compare for the two groups 

across the IHS Areas. We also compare how payments for IHS Active Users without IHS Program Medicaid paid 

claims compare to those of the AIAN and white comparison groups not in the IHS system. 

A third objective of this report is to determine what percent of health care funding needed for personal health 

care services of AIAN calculated by the IHS is actually provided by the Medicaid and Medicaid-CHIP payments. 

How reliable is the assumption based on 1987 data that as much as 25% of the health care costs are met by 

Medicaid funds? How reliable is the assumption that the proportion of Medicaid paid health care coverage is 

unvarying across the IHS Areas? 

2

Methods 

I 

n this section we describe technical issues regarding the Medicaid and IHS linked data and its 

analysis in this report. The term ‘Medicaid data’ in this report includes both Medicaid and CHIP 

data in state Medicaid programs (M-CHIP), but not CHIP data for state-only CHIP programs. 

Medicaid and M-CHIP data are combined because, 1) there are small numbers of AIAN found to 

have CHIP coverage in the IHS Areas in our past studies (American Indian and Alaska Native Medicaid 

Program and Policy Data, 2010); 2) there is no State-only CHIP program data uniformly collected by 

Medicaid; and 3) Medicaid expansion CHIP program data is required of Medicaid state programs and 

is included in Medicaid data. Those readers interested in separate Medicaid and M-CHIP data 

specific to each IHS Area for 2006 presented in exactly the same format as we did for 2004 data in 

2010, please see the separate companion document we prepared with the enriched (linked) data 

used in this report: AIAN Medicaid Data Linked to Indian Health Service Data: Medicaid and CHIP 

Enrollment, Service Use and Payments, 2011. 

Data Sources 

Medicaid-IHS Linked Person Summary File 

In 2011 we linked the CMS federal Medicaid/CHIP (MAX) Person Summary File for Calendar Year 

(CY) 2006 to IHS registration data from the IHS National Data Warehouse (NDW). The methods and 

linkage, and the resultant contents of the data file created are described in Integrating Medicaid and 

Indian Health Service Data, 2011. The MAX Person Summary Files included in the linkage were state 

files for the 35 states with IHS Contract Health Service Delivery Area (CHSDA) counties. 

Medicaid Inpatient, Prescription Drug and Other Services Claims Files 

The CMS-IHS linked Person Summary File made in 2011 was merged with MAX Inpatient, 

Prescription Drug and Other Services claims files for Calendar Year (CY) 2006 by MAX identification 

numbers. Claims paid for services in Fee-for-Service (FFS) delivery of care systems, and for 

premiums paid in capitated (CAP) systems were provided for services that occurred in CY2006. 

Payments processed through May 2007 were included in the MAX claims files, however. In this way 

adjustments for adjudicated claims or payments among multiple payers are likely to have been 

resolved so that payments represent amounts as close to ‘final’ as possible. In addition diagnostic 

information was provided with paid claims in FFS delivery of care systems, and with encounter 

records in CAP managed care plan systems. 

3

Analysis Groups 

IHS AIAN 

Methods 

The linkage of IHS registry and Medicaid data files in 2011 resulted in three groups of Medicaid 

enrollees who obtain services from IHS programs (‘IHS AIAN’), two of which had Medicaid claims 

from Indian health program providers for IHS ‘covered’ services in 2006, and a third group of which 

did not: 

1. Medicaid Recipients with IHS Program Claims who are IHS Active Users 

IHS AIAN in Group 1 are Medicaid enrollees with Medicaid claims from IHS or Tribal Indian (I/T) 

healthcare providers in the state who have designated by the state/tribe/Indian provider as AIAN 

whose Medicaid IHS Program claims for IHS ‘covered’ services are eligible for 100% matching funds 

from the federal Medicaid program (100% FMAP). 

IHS AIAN in Group 1 were found to be defined by the IHS as AIAN ‘Active Users’ in their data registry 

system. These IHS Active Users have had a medical or dental visit from an Indian healthcare 

provider within a period of three years. A ‘2006 IHS AIAN Active User’ had at least one visit to an 

IHS, tribal or Urban Indian health program service provider between October 1, 2004 and 

September 30, 2006. 

Table 1. Analysis groups resulting from linkage of Indian Health Service (IHS) and Medicaid (MAX) data sources. 

Analysis Groups Includes Definition 

IHS AIAN 

Other AIAN 

Whites, Non-Hispanic 

1. Medicaid 

‘IHS Program’ Recipients 

& IHS ‘Active Users’ 

2. Medicaid 

‘IHS Program’ Recipients 

3. IHS ‘Active Users’ who are 

Medicaid Recipients 

Medicaid 

‘Racial AIAN’ Recipients not 

included in the IHS AIAN 

subgroups 

Medicaid 

‘Racial White Recipients 

without Hispanic Ethnicity’ 

4 

Medicaid Enrollees who meet both the 

definition of IHS Program Recipients & 

IHS Active Users in a given year 

Medicaid Enrollees with 

at least one paid claim 

for an ‘IHS Program’ provided service 

IHS Active Users had at least one medical 

service from an IHS system provider in 3 

years according to IHS, but there is no 

Medicaid paid claim for an ‘IHS Program’ 

provided service in the year of analysis 

Race code in the data is ‘AIAN’ either as 

the only Race, or in addition to any other 

Races, regardless of Hispanic Ethnicity 

Race code in the data is ‘White’ as the 

only Race, with no Hispanic Ethnicity

Methods 

2. Medicaid Recipients with IHS Program Claims who are not IHS Active Users 

IHS AIAN in Group 2 are Medicaid enrollees with IHS Program claims for IHS ‘covered’ services 

from an I/T provider as in Group 1, but they were not found in the IHS data registry system as IHS 

AIAN Active Users. These enrollees may not link as IHS Active Users because: 1) federal Medicaid 

criteria for IHS Program users are not the same as IHS criteria for AIAN Active Users and these 

enrollees meet the federal Medicaid criteria; 2) the method of the state Medicaid program for 

meeting federal Medicaid criteria for IHS Program users subject to 100% FMAP is not sufficiently 

specific; 3) not all IHS Active Users have a record in the IHS NDW (the number of 2006 IHS Active 

Users in the NDW is 86% of the total 2006 IHS Active User count). 

3. Medicaid Recipients without IHS Program Claims who are IHS Active Users 

IHS AIAN in Group 3 were Medicaid enrollees with Medicaid claims (recipients) found to be defined 

by the IHS as AIAN ‘Active Users’ in the IHS data registry system, but without any IHS Program 

claims in the Medicaid data. These Medicaid enrollees may link to the IHS Active User data because: 

1) they used an IHS or tribal health program at least once in 2004 or 2005, but not in 2006; 2) they 

could have used an IHS or tribal health program in 2006 but the encounter did not result in a 

Medicaid paid claim (perhaps because the IHS Program provider was a Medicaid managed care 

network provider and received a payment from the managed care plan not Medicaid); or 3) they 

could have used an Urban Indian health program which are included in IHS Active User 

determination, but not Medicaid IHS Program use determination (only IHS and tribally operated 

health programs are included in Medicaid determinations of claim payments eligible for 100% 

FMAP). 

Other AIAN 

The ‘Other AIAN’ were Medicaid enrollees with a self-declared race code of “AIAN” who had 

Medicaid claims, but did not have any IHS Program Medicaid claims and did not link to the IHS 

Active User registry. Since these AIAN live in the counties of the service delivery areas of Indian 

healthcare providers (IHS CHSDA Counties) they can be AIAN who do not meet the stricter criteria of 

‘AIAN’ required by the local tribes or IHS Program provider to be able to receive IHS covered 

services at no charge, or who do meet those criteria but do not choose to use an IHS or tribal health 

program, or who require more specialized or institutional care not provided by the IHS Program or 

its Contract Health Service system. These Medicaid enrollees may also have failed to link to the IHS 

registry because of data limitations of the Medicaid and IHS data systems for a linkage (accurate and 

complete data for Social Security Number, date of birth and gender). 

Whites (Non-Hispanic) 

A random sample cohort of Medicaid enrollees with a self-declared race code of “White” and no 

“Hispanic” ethnicity code was constructed from the same counties of the IHS healthcare system as 

the IHS AIAN groups (IHS CHSDA Counties). The sampling procedure is described in the 2011 report 

Integrating IHS and Medicaid Data . For this analysis the White enrollees are restricted to Medicaid 

recipients with Medicaid claims, since the AIAN groups had to have claims to be defined. Recipients 

have used at least one Medicaid paid service. We selected White non-Hispanics as the reference 

5

Methods 

group for the statistical models used in this report to adjust for undetermined differences in 

Medicaid programs across the IHS Areas at the county level, and measure adjusted Racial Disparities 

in morbidity and Medicaid payments. 

Analysis Plan 

The questions to be answered by the analyses are, 1) What variables determine the mean total 

payment per recipient for IHS AIAN, Other AIAN and Whites? and if those determinants are adjusted, 

2) What are the adjusted mean payments for IHS AIAN across the 12 IHS Areas? And 3)How can 

those mean payments be used to determine what Medicaid pays for IHS AIAN Active User health 

care costs? In this Methods section we restrict the study groups in a systematic way step by step 

making the analytical groups more homogeneous and more and more representative of the groups 

we mean to compare. We then build models that adjust for determinants that affect large numbers of 

recipients In Findings Section I we present the findings from those models that test for the effects of 

potential determinants on the payment outcome. In Findings Section II we see how those effects 

affect the fraction of the mean total payment per IHS Active User that is paid by Medicaid for the 12 

IHS Areas. 

Outcome of Analysis: Mean Total Payment per Medicaid Recipient 

The analysis is governed by selection of the dependent – or outcome – variable used in the analyses 

to measure payments. Particular care has been taken to target the Mean Payment per Person 

measure that is most relevant to the goal that we were commissioned to investigate: identify the 

contributions of characteristics of the IHS AIAN, state Medicaid programs and the IHS system of 

healthcare to Medicaid program payments for medical, dental and behavioral health care of IHS 

AIAN. Specific objectives are to determine how those characteristics vary for IHS AIAN across the 

twelve IHS administrative areas, and how those characteristics differ for other AIAN and for whites 

who also live in the counties of the IHS Areas. 

Because of the varying role of private insurance in total payments for Medicaid claims in certain IHS 

Areas (in particular, Nashville Area) we include Third Party Payments in the outcome measure for 

the analyses and analyze the Total Payment to avoid bias in analyses across IHS Areas (Attachment 

Table C.1). Third Party Payments for Medicaid and CHIP program claims can be paid in part by third 

parties, rather than the Medicaid or CHIP programs themselves. Third Party Payments for Medicaid 

program claims are mainly private insurance payments for Medicaid enrollees under age 65, and 

Medicare payments for those over age 65. 

Because of differences in systems of claims and payments for acute medical care in Fee-for-Service 

(FFS) and capitated Comprehensive Managed Care Plans (CMCP, medical managed care plans), we 

analyze results separately for these two groups. Within each group, however, we sum paid claims 

and monthly premium (Capitated) paid claims for Prepaid Health Plans (PHP, behavioral health and 

dental managed care plans) for both FFS and CMCP recipients, and Primary Care Case Management 

6

Methods 

(PCCM), for some enrollees in FFS medical care). Enrollees with total payments less than $1 were 

excluded since claims with Medicaid payments of $0 and negative values (adjustments to prior paid 

claims) were included in MAX data (Attachment Table C.3). Outlier values for Medicaid payments 

(top 1%) were excluded because of the added skew to mean values while in practice these outliers 

are usually relegated to reinsurance mechanisms of payment. 

Determinants of the Outcome 

Institutionalized and Longterm Care 

Medicaid Enrollees in institutionalized and longterm care are excluded from analysis because their 

care includes services related to living expenses that are not acute medical or dental care. 

Longterm care and institutionalized enrollees include the elderly who need assistance for daily 

living, as well as the developmentally disabled and longterm psychiatric inpatients. When payments 

for longterm care and institutionalized enrollees are excluded from Total Payments, what remains 

is the breadth of medical and dental care covered by Medicaid for acute medical episodes of care. 

Total payments per enrollee for the Medicaid covered service are more than 10 times as high as the 

medical and dental acute care services per enrollee (See Table 2). As a result, small differences in 

institutionalized and longterm care payments can make large differences in mean Total Payment 

per Enrollee. For example, when longterm and institutionalized care payments are included, the 

mean payment for IHS AIAN is $4,314 (95% Confidence Limits, C.L. $4,274 and $4,354) which is 

lower than the $4,785 mean payment for Whites (C.L. $4,758 and $4,812). But when longterm and 

institutionalized care payments are excluded, the mean payment for IHS AIAN is higher $3,759 (C.L. 

$3,725 and $3,794) than the $3,058 mean payment for Whites (C.L. $3,040 and $3,076). 

Furthermore only 1% of IHS AIAN who are Medicaid enrollees use Medicaid covered longterm care, 

while 5% of Whites do (calculated using numbers in Table 2). For IHS Area-specific mean Total 

Payments per Enrollee including longterm and institutionalized care see Attachment Table C.1. For 

numbers and payments for enrollees with longterm and institutionalized care in each Area see 

Attachment Table C.2. 

Table 2. Mean Medicaid and Third Party payments per Medicaid enrollee with and without institutionalized and 

other long-term care for the main study groups. The lower and upper 95% Confidence Limits of each mean are 

shown. 

Analysis Groups* 

Longterm & Institutional Care 

IHS AIAN 8,337 

Other AIAN 4,488 

Whites, Non-Hispanic 64,831 

Other Enrollees 

Enrollees* 



Whites, Non-Hispanic 1,232,415 

Medicaid Third Party Total 

Mean +/- C.L. Mean +/- C.L. Mean +/- C.L. 

$ 38,414 $ 308 $ 200 $ 13 $ 38,614 $ 308 

$ 37,137 $ 892 $ 187 $ 58 $ 37,324 $ 894 

$ 45,771 $ 1,818 $ 167 $ 38 $ 45,939 $ 1,819 

$ 3,732 $ 34 $ 27 $ 5 $ 3,759 $ 35 

$ 2,576 $ 66 $ 23 $ 3 $ 2,599 $ 66 

$ 2,995 $ 17 $ 63 $ 8 $ 3,058 $ 18 

7 

Total Payment per Enrollee 

*The state of Arizona could not be included because of the large numbers of enrollees in longterm care without data on 

payments.

Enrollees with no Payments 

Methods 

Medicaid Enrollees with no Medicaid Payment are excluded from analysis, and thus the outcome 

variable is Mean Total Payment per Recipient, not per Enrollee. Medicaid program payments 

depend on whether an enrollee has a Medicaid paid service or not. Enrollees must have a Medicaid 

paid claim to have any Medicaid payment regardless of whether that claim is paid to a provider for 

a medical or dental service, or to a managed care plan for a monthly premium. Two of the IHS AIAN 

subgroups in Table 1 were required to have at least one Medicaid paid claim by definition, 

‘Medicaid Enrollees with IHS Program Claims’ (those who were IHS Active Users, and those who 

were not). As a result the percent of IHS AIAN who had $0 Total Payments was 10%, while for the 

two comparison groups Other AIAN and Whites, 13% of the Medicaid enrollees had $0 Total 

Payments. Furthermore within IHS Areas the percents of IHS AIAN with $0 Total Payments varied 

from a low of 1% in California to a high of 20% in Phoenix and Tucson (Attachment Table C.3). Thus 

to avoid the bias created when analysis groups have varying proportions of enrollees with no 

Medicaid paid claims, we exclude Medicaid Enrollees with $0 Total Payments. The enrollees who 

remain are termed ‘Recipients’ of services by CMS we therefore analyze Total Payment per 

Recipient for all analysis groups where a Recipient is a Medicaid Enrollee who receives at least one 

paid service claim or one month’s premium paid for managed care. Operationally the enrollee 

exclusion criterion technically was enrollees with Total Payments less than $1. Though all 

payments in MAX data were rounded to the nearest dollar, there were some claims of less than $0 

as a result of payment adjustments removing all Medicaid payments for the year. 

Table 3. Mean Medicaid and Third Party payments per Medicaid enrollee of the main study groups with and 

without enrollees with zero dollar total Medicaid payments for the year. The ‘Mean Payments per Enrollee’ 

excluding ‘Enrollees with Zero Dollar Payments for the year’ are the same as ‘Mean Payments Per Recipient.’ The 

95% Confidence Limits are also shown. 

Enrollees* 

Mean +/- C.L. Mean +/- C.L. Mean +/- C.L. 

Excluding Enrollees w ith Zero Dollar Payment for the year* 

IHS AIAN 495,629 $ 4,141 $ 38 $ 31 $ 6 $ 4,172 $ 38 



$ 2,956 $ 76 $ 26 $ 3 $ 2,982 $ 76 

$ 3,437 $ 19 $ 72 $ 9 $ 3,509 $ 21 

Including Enrollees w ith Zero Dollar Payment for the year* 

IHS AIAN 550,016 $ 3,732 $ 34 $ 27 $ 5 $ 3,759 $ 35 



$ 2,576 $ 66 $ 23 $ 3 $ 2,599 $ 66 

$ 2,995 $ 17 $ 63 $ 8 $ 3,058 $ 18 

8 

Total Payment per Enrollee 


*Enrollees have payments of zero (or negative) dollars if they receive no services, have no paid claims or premiums, or only 

adjustments are made to previous payments. Enrollees with non-zero dollar payments for the year are known to be 'Recipients' of 

Medicaid paid services during the year. 

To determine the mean Total Payment per Enrollee for any group, all that need be done is multiply 

the mean Total Payment per Recipient by the number of Recipients in the group and divided by the 

total number of Enrollees in the group. This calculation is the same as multiplying the mean Total 

Payment per Recipient times the percent of Enrollees who are Recipients (or 100% minus the 

percent of Enrollees who are not Recipients). The proportions of Enrollees who are not Recipients

Methods 

are in Attachment Table C.3, and the mean Total Payment per Recipient are provided for the 

analysis groups in each IHS Area in Attachment Table C.4. 

Enrollment for Less than 12 Months 

Analyses are done separately for Medicaid Recipients enrolled the full 12 months of the year, and 

those enrolled less than 12 months. The Mean Total Payment per Year for Recipients enrolled all 12 

months of the year is greater than that for Medicaid Recipients enrolled less than 12 months because 

of shorter time of coverage (Table 4). However when analyzed as Mean Total Payment per Month, 

the payments for Medicaid Recipients enrolled less than 12 months is systematically larger. Reasons 

offered for this bias found in many studies of program enrollees is that there is a ‘pent up demand’ 

for medical service in enrollees who start coverage during the year, and there is a high utilization at 

end of life that occurs for enrollees who die during the year. Varying months of enrollment and 

differences amounts of enrollment in managed care plans can affect this phenomenon. This 

phenomenon was found to occur for IHS AIAN ($424 and $505 per Recipient per Month with nonoverlapping 

95% Confidence Limits, C.L.) and Other AIAN ($310 and $410 per Recipient per Month 

with non-overlapping C.L.), but was reversed for Whites ($379 and $371 per Recipient per Month 

with non-overlapping C.L.) (Table 4). To avoid potentially unadjusted differences between the 

groups behind the phenomenon, data for Medicaid Recipients enrolled 12 months is analyzed 

separately from those enrolled less than 12 months. For IHS Area-specific values for the numbers of 

recipients and Mean Total Payment per Year for Recipients enrolled 12 months and enrolled less 

than 12 months see Attachment Tables C.5 and C.6. 

Table 4. Mean Medicaid and Third Party payments per Medicaid recipient* divided between those enrolled all 12 

months, and those enrolled less than 12 months for the main analysis groups. The 95% Confidence Limits are 

also shown. 

Analysis Groups Recipients* Mean +/- C.L. Mean +/- C.L. Mean +/- C.L. 

Recipients* enrolled 12 months 




Recipients* enrolled Less than 12 months 













$ 5,086 $ 57 $ 42 $ 10 $ 5,128 $ 58 

$ 3,721 $ 120 $ 35 $ 5 $ 3,756 $ 120 

$ 4,551 $ 31 $ 104 $ 15 $ 4,656 $ 34 

$ 2,997 $ 47 $ 17 $ 4 $ 3,014 $ 47 

$ 2,050 $ 84 $ 16 $ 3 $ 2,066 $ 85 

$ 2,085 $ 19 $ 33 $ 4 $ 2,118 $ 19 

$ 424 $ 5 $ 3 $ 1 $ 427 $ 5 

$ 310 $ 10 $ 3 $ 0 $ 313 $ 10 

$ 379 $ 3 $ 9 $ 1 $ 388 $ 3 

$ 505 $ 10 $ 3 $ 1 $ 507 $ 10 

$ 410 $ 23 $ 3 $ 1 $ 413 $ 23 

$ 371 $ 5 $ 7 $ 1 $ 378 $ 5 

9 

Annual Payment per Recipient 

Monthly Payment per Recipient 

*Only enrollees who are recipients of services are included because analyses exclude enrollees with zero dollar Medicaid 

payments.

Methods 

Table 5. Mean Medicaid and Third Party Payments per Recipient* divided between those Less than 65 years of 

age and 65 years or more for the main analysis groups. The 95% Confidence Limits are also shown. 

Analysis Groups Recipients Mean +/- C.L. Mean +/- C.L. Mean +/- C.L. 

































Medical Fee-for-Service and Capitated Care 


$ 5,008 $ 60 $ 33 $ 9 $ 5,041 $ 60 

$ 3,656 $ 125 $ 30 $ 5 $ 3,686 $ 125 

$ 4,440 $ 33 $ 98 $ 17 $ 4,538 $ 37 

$ 2,979 $ 47 $ 15 $ 3 $ 2,993 $ 47 

$ 2,038 $ 86 $ 14 $ 2 $ 2,052 $ 86 

$ 2,048 $ 19 $ 29 $ 4 $ 2,076 $ 20 

$ 417 $ 5 $ 3 $ 1 $ 420 $ 5 

$ 305 $ 10 $ 2 $ 0 $ 307 $ 10 

$ 370 $ 3 $ 8 $ 1 $ 378 $ 3 

$ 499 $ 10 $ 2 $ 0 $ 502 $ 10 

$ 407 $ 23 $ 3 $ 1 $ 411 $ 23 

$ 363 $ 5 $ 6 $ 1 $ 369 $ 5 

$ 6,230 $ 194 $ 178 $ 88 $ 6,408 $ 214 

$ 4,964 $ 285 $ 137 $ 54 $ 5,102 $ 292 

$ 5,540 $ 76 $ 158 $ 33 $ 5,698 $ 84 

$ 4,208 $ 476 $ 148 $ 151 $ 4,356 $ 524 

$ 2,919 $ 443 $ 161 $ 105 $ 3,080 $ 461 

$ 3,165 $ 118 $ 165 $ 54 $ 3,330 $ 132 

$ 519 $ 16 $ 15 $ 7 $ 534 $ 18 

$ 414 $ 24 $ 11 $ 5 $ 425 $ 24 

$ 462 $ 6 $ 13 $ 3 $ 475 $ 7 

$ 846 $ 153 $ 21 $ 17 $ 867 $ 155 

$ 557 $ 106 $ 26 $ 15 $ 583 $ 108 

$ 597 $ 35 $ 35 $ 14 $ 632 $ 38 

10 

Less than 65 years of Age 



65 years of Age & Over 



Data is analyzed separately for recipients whose Medicaid paid medical care is provided Fee-for- 

Service (FFS) and those whose is provided through a capitated Comprehensive Managed Care Plan 

(CMCP). Much of Medicaid covered care has in recent years become managed by health care plans 

to lower Medicaid payments. Even recipients in FFS medical care may have monthly capitated 

premiums paid for Primary Care Case Management (PCCM), or behavioral or dental Prepaid Health 

Plans (PHP). For enrollment of AIAN in CMCP, PHP and PCCM in the IHS areas see Integrating 

Medicaid and Indian Health Service Data, 2011 .

Methods 

When medical care is paid through monthly capitated premiums to CMCP, hospital care may or may 

not be included. Thus hospital services may be paid FFS for CMCP enrollees. CMCP also vary in their 

breadth of other optional Medicaid services covered as well. CMCP may or may not include 

behavioral health or dental services. Enrollees in CMCP may or may not also have monthly 

capitated premiums paid for behavioral or dental Prepaid Health Plans (PHP). Alternatively these 

services not covered in CMCP plans may like hospital care be paid through FFS claims. When CMCP 

recipients are not enrolled in a CMCP for all the months they are enrolled in Medicaid, they can also 

have FFS claims for services. 

In analyses of Medicaid payments it is thus important to adjust for the effect of capitated CMCP 

payments in groups of Recipients. We thus analyzed Mean Total Payments for Recipients with 12 

months enrollment but no CMCP (that is, 12 months of FFS care, which can also include PCCM, or 

Dental or Behavioral Health PHP), or with any months of CMCP (Table 6). The numbers of 

recipients with 12 months enrollment in Medicaid but less than 12 months enrollment in CMCP was 

too small a group to be analyzed separately. The numbers of recipients for the IHS Areas are shown 

in Attachment Table C.7 (all ages combined). The payments for recipients in only FFS medical care 

in the IHS Areas are shown in Attachment Table C.8, and for those with any CMCP in Attachment 

Table C.9. Values for the hospital, other medical, prescription drug and dental FFS payments, as well 

as for PCCM, Dental and Behavioral Health PHP premiums are provided in Attachment Tables C.8 

and C.9. 

Table 6. Mean Medicaid and Third Party payments per Medicaid recipient enrolled 12 months divided into those 

not enrolled in any Comprehensive (medical) Managed Care Plan (CMCP), those enrolled less than 12 months in 

CMCP and those enrolled 12 months in CMCP for the main study groups. The 95% Confidence Limits for each 

mean value are also shown. 


Recipients not enrolled in medical managed care (CMCP) 

IHS AIAN 237,019 $ 5,114 $ 64 $ 48 $ 12 $ 5,161 $ 65 



$ 3,751 $ 134 $ 46 $ 7 $ 3,796 $ 134 

$ 4,872 $ 46 $ 163 $ 24 $ 5,035 $ 53 

Recipients enrolled less than 12 months in medical managed care (CMCP) 

IHS AIAN 13,861 $ 4,886 $ 178 $ 6 $ 2 $ 4,892 $ 178 



$ 3,576 $ 209 $ 14 $ 14 $ 3,589 $ 210 

$ 3,594 $ 52 $ 13 $ 2 $ 3,607 $ 52 

Recipients enrolled 12 months in medical managed care (CMCP) 

IHS AIAN 20,629 $ 4,897 $ 119 $ 1 $ 0 $ 4,898 $ 119 




$ 3,655 $ 326 $ 1 $ 1 $ 3,656 $ 326 

$ 4,129 $ 26 $ 1 $ 0 $ 4,130 $ 26 

11 


While payments per recipient under age 65 are lower for every analysis group with CMCP when 

compared to those with FFS medical care (Table 6), the differences are not large. What is striking is 

the smaller proportions of AIAN in CMCP than Whites who live in the same counties. This we find 

depends on the IHS Area (See Attachment Table C.9.) Over age 65, the numbers of AIAN Recipients 

in CMCP is small for all groups, but particularly the AIAN groups (Table 6).

Restricted Benefits 

Methods 

Enrollees with Restricted Benefits were excluded from the analyses. Enrollees in certain Medicaid 

enrollment categories are only eligible for a restricted portion of the full scope of medical benefits: 

For example, women eligible only because they are pregnant (but not women who are eligible for 

Medicaid or CHIP and become pregnant), certain groups of Medicare-Medicaid Dual eligibles, 

enrollees in pharmacy only or other specially approved state ‘waiver’ programs. We found small 

numbers of Medicaid enrollees with Restricted Benefits (Table 7), and therefore cannot do a 

separate analysis for these enrollees. Adjusting analyses of the mean Total Payments per Person 

for Restricted Benefits in the models described below had small if any effects. We therefore 

excluded enrollees with Restricted Benefits from the analyses we present here. 

Table 7. Mean Total Payments per Recipient for enrollees with 12 months Fee-for-Service (FFS) medical care 

with or without managed care (PCCM, CMCP and Dental & Behavioral Health Prepaid Health Plans, PHP) paid 

per Medicaid recipient with Full Benefits all 12 months or at least one month of Restricted Benefits for the main 

study groups. The 95% Confidence Limits for each mean value are also shown. 


Recipients not enrolled in medical managed care (Fee-For Service, FFS) 

IHS AIAN 220,368 $ 5,035 $ 67 $ 37 $ 11 $ 5,073 $ 68 



$ 3,683 $ 141 $ 39 $ 7 $ 3,722 $ 142 

$ 4,840 $ 52 $ 160 $ 28 $ 5,000 $ 59 


IHS AIAN 13,666 $ 4,850 $ 179 $ 5 $ 2 $ 4,855 $ 179 



$ 3,492 $ 200 $ 13 $ 14 $ 3,505 $ 200 

$ 3,427 $ 50 $ 12 $ 2 $ 3,439 $ 50 


IHS AIAN 20,244 $ 4,821 $ 107 $ 1 $ 0 $ 4,821 $ 107 



$ 3,609 $ 331 $ 1 $ 1 $ 3,610 $ 331 

$ 3,950 $ 26 $ 0 $ 0 $ 3,951 $ 26 

Recipients not enrolled in medical managed care (Fee-For Service, FFS) 

IHS AIAN 16,648 $ 6,154 $ 188 $ 183 $ 91 $ 6,337 $ 210 



$ 4,778 $ 294 $ 148 $ 59 $ 4,926 $ 303 

$ 5,068 $ 84 $ 182 $ 38 $ 5,251 $ 94 


IHS AIAN 195 $ 7,413 $ 1,107 $ 63 $ 75 $ 7,476 $ 1,107 

Other AIAN 65 


$ 9,680 $ 5,122 $ 51 $ 59 $ 9,731 $ 5,117 

$ 10,647 $ 638 $ 32 $ 13 $ 10,680 $ 638 


IHS AIAN 385 $ 8,928 $ 3,033 $ 1 $ 1 $ 8,929 $ 3,033 

Other AIAN 268 


Less than 65 years of Age 

$ 6,464 $ 585 $ 2 $ 4 $ 6,466 $ 587 

$ 8,024 $ 163 $ 5 $ 5 $ 8,029 $ 164 

12 



65 years of Age & Over

Medical Cost Index 

Methods 

Payments were adjusted using the Medical Cost Index used by the IHS in computing what it would 

cost to provide equitable services across the 12 IHS Areas 

(http://www.ihs.gov/NonMedicalPrograms/lnf/): This Medical Cost Index is calculated from the 

Health Care portion of the Cost of Living Index (COLI) published by the Council for Community and 

Economic Research (C2ER). Indices of regional differences of health care prices are published by 

C2ER for select counties and metro-areas (www.coli.org/Method.asp). 

Table 8. Indices of regional differences in health care costs for the IHS Areas calculated by IHS for 2009 using the 

health care portion of the COLI of the Council for Community and Economic Research. 

IHS Area 

13 

Health Care Cost 

of Living Index 

Scaled 

Alaska 1.31 

Portland 1.13 

California 1.08 

Aberdeen 1.02 

Billings 1.01 

Nashville 1.00 

Navajo 0.99 

Phoenix 0.99 

Tucson 0.99 

Bemidji 0.98 

Albuquerque 0.97 

Oklahoma 0.94 

The Health Care portion of their COLI is designed to provide the best possible means to compare 

cost of living differences in these areas based on the price of consumer goods and services, but the 

index has a number of limitations. The data is voluntarily provided by designated organizations. 

The C2ER states that all price data are obtained from sources deemed reliable and that the C2ER 

stringently reviews all prices reported, and attempts to eliminate errors and noncompliance with 

pricing specifications. Still they issue a disclaimer that, ‘no representation is made as to the complete 

accuracy thereof.’ In addition there are certain definitional limitations such as that the health care 

purchases priced are those appropriate for “professional and managerial households in the top 

income quintile,” while Medicaid programs purchase for households in the lowest income quintile of 

their state. Certainly the greatest limitation is that the price variation largely reflects variation in 

urban health care prices, which is but an undetermined fraction of the health care purchased by 

Medicaid for residents of the generally rural CHSDA counties of the IHS Areas. 

We used the health care C2ER COLI because it was recommended that the IHS use the health care 

COLI in the calculation of the IHS Federal Disparities Index by its Contract Health Service 

workgroup. The workgroup of tribal and technical advisors to the IHS believed it was best available 

index that could reflect macro differences in health care prices among regions. The determination 

of the Health Care COLI for the 12 IHS Areas is done by the IHS.

Age and Sex 

Methods 

Medical care payments increase with age, and yet the differences in age of populations among AIAN 

groups and between AIAN and Whites cannot be changed unless a Medicaid eligibility policy change 

occurs affecting age groups differently. Age can be coded continuously (in years), or in intervals (5 

or 10 year age cohorts). Usually an analytical definition is used to avoid unnecessarily large 

numbers of interval groups: irregular intervals are used to define age groups with substantially 

higher payments than the immediate younger group. We will test the use of a Continuous Age 

variable and an analytical Interval Age Group variable. The adjustment that explains most of the 

variation in the Mean Total Payment will be used in the Core Model. 

Medical care payments are generally higher for women than men when the services include 

reproductive care, and especially higher in Medicaid for women who are pregnant or give birth 

during the year. Alternatives for gender determinants are 1) Male, Female pregnant, & Female non- 

Pregnant; or 2) Male, Female, with adjustment for pregnancy and childbirth services in the Service 

Coverage variables. The adjustment that explains most of the variation in the Mean Total Payment 

will be used in the Core Model. 

Disability as Basis of Medicaid Eligibility and Dual Eligibility with Medicare 

Medical care payments are generally higher for blind or disabled individuals. We provided a list of 

the blind and disabled eligibility categories for Medicaid and for Dual Eligibility with Medicare in 

AIAN Medicaid Program and Policy Statistics: Summary Report, 2009 . The proportions of AIAN 

Medicaid eligibles who are Disabled or Dual eligibles in each IHS Area are documented in AIAN 

Medicaid Program and Policy Data, 2010 . 

Risk Adjustment: Morbidity 

Medical care costs rise as the number and severity of medical conditions increase. To determine if 

there are differences in payments not related to illness requires adjusting costs for differences in the 

morbidity burden among the study groups. This is possible with Medicaid claims tested Risk 

Adjustment software systems (Winkelman and Dammler, 2008). We used the Adjusted Clinical 

Groups® (ACG) system developed at The Johns Hopkins University to characterize the concurrent 

morbidity burden in the AIAN and White Medicaid populations in our study for the time period of 

the claims (http://www.acg.jhsph.org). With this software demographic, diagnostic and procedure 

code combinations on 12 continuous months of claims and encounter records were reduced to a 

fixed number of health status categories called Aggregated Diagnosis Groups. 

The ACG system captures interrelationships between co-occurring morbidities that pose the greatest 

demands for health care resources. ACG actuarial cells are based on Aggregated Diagnosis Groups 

that are similar in terms of severity and likelihood of persistence of the health condition over time. 

Diagnostic codes are assigned to one of the 32 clusters of Aggregated Diagnosis Groups. Since 

individuals can have more than one diagnosis, they may have more than one Aggregated Diagnosis 

Group. Individual diseases or conditions are placed into a single Aggregated Diagnosis Groups based 

14

Methods 

on five clinical dimensions: 1) Duration of the condition (acute, recurrent, or chronic); 2) Severity of 

the condition (e.g., minor and stable versus major and unstable); 3) Diagnostic certainty (symptoms 

versus documented disease); 4) Etiology of the condition (infectious, injury, or other); and 5) 

Specialty care involvement (e.g., medical, surgical, obstetric, hematology). The Aggregated Diagnosis 

Groups are then weighted and added so that a single ACG morbidity (risk) score is obtained by each 

individual. 

The ACG system provides an external standard sample of privately insured population in a managed 

care plan for reference, but the system recommends use of an internal reference group to 

standardize for unadjusted differences between Medicaid populations and provider claims and 

privately insured managed care data. We used the random sample of non-Hispanic White Medicaid 

recipients living in the same counties as the AIAN as the morbidity reference group. 

The software is not recommended for use without a 12 month continuous claim history for 

recipients, and therefore we did not apply it to recipients with less than 12 months enrollment. We 

did not use the feature of the software that uses pharmacy data because we found that IHS AIAN in 

the Medicaid data had much lower pharmacy payments than other which is likely due to access to 

medications through their Indian healthcare providers, which Other AIAN and Whites do not have 

(see Prescription Drug FFS data in the Findings section). 

Statistical Adjustments 

To adjust for the effects of determinants on mean total payments per recipient, we constructed 

Generalized Linear Mixed Models of SAS statistical software (version 9.2) using the log-likelihood 

function, assuming the gamma distribution of the dependent variable (Medicaid payments). We 

have previously published studies using these methods with Medicaid claims data (Wong et al, 

2006), including using the ACG risk adjustment (Korenbrot, Kao & Crouch, 2009). 

Medicaid Enrollee Exclusions were: 1) enrollees with no known months of eligibility, 2) enrollees 

with longterm or institutionalized care, 3) enrollees with ‘Restricted’ rather than ‘Full’ Medicaid 

benefits, and 4) enrollees with no paid claims of $1 or more. Recipients remaining were then 

grouped for analytical modeling as in Table 9: 

15

Methods 

Table 9. Findings for all six series are summarized at the end of the Findings Section. The results of Analyses 1 

and 2 are presented in Figures in the Findings Section with detailed tables in Attachments F and G. All findings 

from Analyses 3 to 6 are in Attachments H, I, J and K respectively. 

1 2 3 4 5 * 6 * 

FFS Medical 

Morbidity 

Adjustment 

Capitated 

Medical 

No morbidity 

adjustment 

FFS Medical 

No morbidity 

adjustment 

Capitated 

Medical 

No morbidity 

adjustment 

Analyses 

Recipients Less than 65 years of Age Recipients Aged 65 & Over 

12 months Enrollment 

Any Months of Enrollment 

16 

12 months Enrollment 

FFS Medical 

Morbidity 

Adjustment 

Capitated 

Medical 

Any Months of Enrollment 

FFS Medical 

No morbidity 

adjustment 

The numbers of recipients in each analytical group are presented in Attachment C by state and IHS 

Area. All recipients in Analysis 1 are included in Analysis 2, those in Analysis 3 are included in 

Analysis 4, and those in Analysis 5 are included in Analysis 6. 

Capitated 

Medical 

In Analyses 1, 2 and 5 recipients were enrolled in Medicaid 12 months, so the outcome was the 

Adjusted Mean Total Payment per Recipient per Year and the models could be adjusted for 

morbidity (Attachments E, F and I). In analyses 3, 4 and 6 the recipients could be enrolled less than 

12 months in Medicaid and therefore the outcome was the Adjusted Mean Total Payment per 

Recipient per Month and the models could not be adjusted for morbidity because there was not a 12 

month continuous claims history for all recipients (Attachments G, H and J). 

Within each of the 6 series of analytical models the study groups are nested within each of the 12 

IHS Areas and adjusted for Age and Sex (interaction terms) and Medicaid Disability and Dual 

Eligibility Status under age 65 (interaction terms). Morbidity adjustments were included for the 

groups enrolled 12 months in Medicaid. The first set of study groups within each series of analyses 

compares: IHS AIAN, Other AIAN and Whites. For further comparison the second set of study groups 

within each series of analyses divides the IHS AIAN into, 1) those with IHS Program claims who are 

also IHS Active Users, 2) those with IHS Program claims who are not also IHS Active Users, and 3) 

those who are IHS Active Users but did not have any IHS Program claims – and includes Other AIAN 

and Whites. 

In the models, all effects of the adjustment and study variables were significant at the P

Methods 

each recipient type across IHS Areas we calculated for each recipient type the difference between 

the adjusted mean payment for IHS AIAN and a comparison group in each IHS Area as a percent of 

the mean payment for IHS AIAN (Attachment Tables L.1, L.4). We then multiplied the relative 

percent difference in the payment times the number of the IHS AIAN in that IHS Area, and 

determined the weighted difference for the recipient type across the IHS Areas for the comparison 

group (Attachment Tables L.2, L.5). 

To obtain an overall measure for each IHS Area across the 6 analyses of all types of recipients, we 

repeated the method using the same differences between the adjusted mean payment for IHS AIAN 

and a comparison group in each IHS Area for each recipient type as the difference in percent of the 

mean payment for IHS AIAN (Attachment Tables L.1, L.4). However we multiplied the relative 

percent difference in the payment for each recipient type times the number of the IHS AIAN in that 

recipient type, and determined the weighted difference for each IHS Area across all the recipient 

types represented in that Area (Attachment Tables L.3, L.6). 

17

Methods 

Map 1. 12 IHS Areas: Contract Health Service Delivery Areas (CHSDA) 

18

Findings 

Findings 

Payments for AIAN Medicaid Recipients 

The total amount of Medicaid funds paid in 2006 for 550,000 IHS AIAN Medicaid enrollees living in the service 

delivery Areas of IHS and tribally operated facilities for paid personal health care services was $ 2.05 billion 

(Table 2). The personal health care services included Medical (including physician, clinic, outpatient, laboratory 

and imaging, pharmacy), Behavioral Health and Dental Care services. An additional $15 million was paid by 

other third-party payers (mainly private insurance) to cover payments for the claims filed with Medicaid. Of 

those IHS AIAN Medicaid enrollees 496,000 were recipients of Medicaid paid services during the year. 

Findings are presented here for the CHSDA counties of the IHS service delivery areas. The numbers of IHS AIAN 

with Medicaid coverage in the separate states of each IHS service delivery area are not large enough to give 

statistically reliable findings (the numbers and payments for AIAN in the counties of the IHS service delivery 

areas of the states in the analytical subgroups are presented in Attachments F to I). One of the main reasons why 

state numbers of IHS AIAN are not large enough is that not all states report IHS claims separate from other 

claims (see American Indian and Alaska Native Medicaid Program and Policy Statistics: Summary Report 2009) 

and when they do they do not capture all claims for IHS AIAN. 

Recipients with Fee-for-Service Medical Services 

Age, Sex, Disability & Morbidity Do Not Explain Differences in Payments 

If left unadjusted for any determinants, the mean total payment for IHS AIAN recipients with FFS medical care 

who are less than 65 years of age is only slightly higher than Whites ($5,104 compared to $4,960, or $144 

difference), but much higher than Other AIAN ($3,670, or $1,436 difference) (Figure 1). The minimal actuarial 

adjustment for age and sex differences increases the difference in payments between IHS AIAN and Whites 

($7,052 compared to $6,369, or about $600) but not with Other AIAN ($7,052 compared to $5,567, or about 

$1500). This effect is expected because the IHS AIAN have a younger age distribution than that of Whites and 

therefore lower expected payments, but a similar age distribution to that of Other AIAN and therefore similar 

expected payments. The mean adjusted payment increases for all three groups with the age adjustment because 

payments for older more costly recipients are given equal weight with less costly younger recipients which 

constitute the vast majority of the recipients in all three groups. This is how the statistical adjustment controls 

for the differences in age distributions across the three groups. 

Adjusting payments further for disability status, either because of Medicaid eligibility as a disabled enrollee, or 

as a Medicare-Medicaid ‘Dual’ enrollee under age 65, increases the adjusted means and the differences in means 

for all three groups (Figure 1). The mean total payment for IHS AIAN is much higher for Whites ($9,999 

compared to $7,884, or a $2,115 difference) and for Other AIAN ($7,319, or a $2,680 difference). Again the 

adjusted mean rises for all groups because the higher payments for the smaller groups of Disabled are given 

equal weight with less costly but higher proportions of non-disabled recipients during the statistical 

adjustment. 

19

Findings 

Figure 1. Adjustment of Mean Total Payment per Recipient for IHS AIAN, Other AIAN and Whites less than 65 years of age 

enrolled 12 months with FFS medical care (successive adjustments for age and sex, disability, & morbidity). Payments include 

FFS claims for medical services and either FFS claims or managed care plan premiums for non-medical services (behavioral 

health or dental). 

$10,000 

$9,000 

$8,000 

$7,000 

$6,000 

$5,000 

$4,000 

$3,000 

$2,000 

$1,000 

$- 

$5,104 

$3,670 

$4,960 

$7,052 

$5,567 

$6,369 

$9,999 

The further adjustment for the variation in morbidity among the three groups reduces the differences between 

IHS AIAN and Whites, and between IHS AIAN and Other AIAN, but substantial differences remain (Figure 1). 

The mean total payment for IHS AIAN is higher for Whites ($5,865 compared to $4,689, or a $1,176 difference) 

and for Other AIAN ($4,453, or a $1,412 difference). The morbidity scores for the low income Medicaid eligible 

Whites (1.013 with 90% Confidence Limits, C.L., from1.011 to 1.015) were actually worse than those of IHS 

AIAN (0.954 with 90% C.L. 0.949 to 0.959) and Other AIAN (0.880 with 90% C.L. 0.875 to 0.885). We 

investigated whether the lack of diagnosis codes on claims paid to Indian health care providers could explain 

the morbidity scores and found that it did not. More diagnosis codes per recipient were used to determine 

morbidity for IHS AIAN recipients with Indian health care provider claims than for Whites or Other AIAN in all 

Areas except Aberdeen Area (Attachment Tables D.1 and D.2). 

Payments across IHS Areas still Vary Substantially after Adjustments 

Fee-for Service payments are higher for IHS AIAN than Whites in two-thirds of the IHS Areas (Alaska, Bemidji, 

Billings, California, Phoenix, Portland and Tucson Areas, Figure 2). But the payments are lower for IHS AIAN in 

Aberdeen and Albuquerque Areas, and about the same for IHS AIAN and whites in Nashville and Oklahoma 

Areas. The mean adjusted total payments for Whites in the Tucson Area are exceptionally low (less than $1000 

per recipient) while payments for IHS AIAN are exceptionally high, so we investigated payments in Arizona 

more closely. 

20 

$7,884 

$7,319 

Unadjusted Age*Sex Adjusted Disabled*Medicare, 

Age*Sex Adjusted 

$5,865 

$4,453 

$4,689 

& Morbidity Adjusted 

IHS AIAN 

Other AIAN 

Whites

Findings 

Figure 2. Adjusted Mean Total Payment per Recipient for IHS AIAN, Other AIAN and Whites less than 65 years of age with FFS 

medical care across 12 IHS Areas (adjusted for age and sex, and for Disability, Dual eligibility with Medicare, & Morbidity). 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $1,000 $2,000 $3,000 $4,000 $5,000 $6,000 $7,000 $8,000 $9,000 $10,000 

In the state of Arizona unadjusted payments are more than 7 times higher for IHS AIAN as for whites 

(Attachment xx) which explains the much higher payments for IHS AIAN in Navajo, Phoenix and Tucson Areas 

(Figure 2). When recipients in the state of Arizona are simply excluded from the adjusted analyses because of 

the unusually high disparities in payments with whites, payments for IHS AIAN are higher in Phoenix but not 

Navajo Area (Figure 3). All of Tucson Area is included in Arizona, and therefore no determination is possible for 

IHS AIAN after excluding recipients in the state of Arizona. There were also too few Whites in FFS care in 

Arizona to include them in further models with FFS recipients. 

Figure 3. Adjusted Mean Total Payment per Recipient for IHS AIAN, AIAN and Whites less than 65 years of age with FFS 

medical care across IHS Areas, excluding recipients in the state of Arizona (in Navajo, Phoenix and all Tucson Areas). 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $1,000 $2,000 $3,000 $4,000 $5,000 $6,000 $7,000 $8,000 $9,000 $10,000 

21 

IHS AIAN 

Other AIAN 

Whites 

IHS AIAN 

Other AIAN 

Whites

Findings 

Payments are Higher for IHS AIAN with Medicaid IHS Program claims 

When the IHS AIAN are divided into those with and without Medicaid IHS Program claims paid to IHS system 

health care providers (I/T), payments are higher for IHS AIAN who had Medicaid IHS Program claims than those 

who did not in all Areas but Nashville (Figure 4). Whether the IHS AIAN who had Medicaid IHS Program claims 

were also IHS Active Users (Group 1) or not (Group 2), payments are higher than those of IHS Active Users who 

did not have any Medicaid IHS Program claims (Group 3). The only distinction was that in the Navajo Area the 

payments were much higher for IHS AIAN who had Medicaid IHS Program claims and were also IHS Active 

Users (Group 1), but not for those with Medicaid IHS Program claims who were not also IHS Active Users 

(Group 2). The much higher payments for IHS AIAN in Navajo Area were eliminated when all recipients in the 

state of Arizona were excluded from analysis (Figure 5). In fact there were no Medicaid IHS Program claims for 

AIAN who were not IHS Active Users when recipients from Arizona were excluded from the analysis. 

Figure 4. Adjusted Mean Total Payment per Recipient for IHS AIAN in Figure 2 divided into: 1) IHS AIAN with IHS Program 

claims who are IHS Active Users; 2) IHS AIAN with IHS Program claims who are not IHS Active Users; and 3) IHS AIAN who 

are IHS Active Users with no IHS Program Medicaid claims. For comparison the Other AIAN and Whites of Figure 2 are shown. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $2,000 $4,000 $6,000 $8,000 $10,000 

22 

1.IHS Program claims 

& Active User 


but Not Active User 

3.IHS Active User with 

no IHS Program claims 

Other AIAN 

Whites

Findings 

Figure 5. Adjusted Mean Total Payment per Recipient for IHS AIAN in Figure 3 which excluded recipients in the state of 

Arizona divided into the 3 IHS AIAN groups in Figure 4. Other AIAN and Whites of Figure 3 are also shown. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $2,000 $4,000 $6,000 $8,000 $10,000 

In all Areas except the Nashville Area, payments for IHS Active Users who did not have any Medicaid IHS 

Program claims (Group 3) were lower or about the same (Alaska and Portland Areas) as those of Whites (Figure 

4). 

Payments for Outpatient Services had Largest Effect on Total Payments 

We investigated whether there were payments for particular types of services that explained the higher 

payments for IHS AIAN with IHS Program claims (Groups 1 and 2). The cleanest way to investigate this was to 

successively exclude 1) clinic and physician outpatient payments (Figure 6), then 2) hospital payments (Figure 

7), and finally 3) prescription drug payments (Figure 8). These three categories of services were uniformly 

defined by the Medicaid data extraction process into separate MAX claims files. 

Excluding outpatient clinic and physician payments (Figure 6) had the largest impact of the three general types 

of service on reducing the differences in mean total payments per recipient between IHS AIAN with IHS 

Program claims (Groups 1 and 2) and IHS AIAN Group 3 without IHS Program claims and Whites. The average 

decline in adjusted mean payments for Group 1 was $2,960, Group 2 was $2,520, while that for Group 3 was 

$680 and Whites was $750 (difference in values of Figure 6 and Figure 4). Particularly large differences remain 

for Groups 1 and 2 for the Areas with Arizona state recipients (Navajo, Phoenix and Tucson Areas). For hospital 

services the average decline in adjusted mean payments for Group 1 was $1068, Group 2 was $992, while that 

23 


& Active User 





Other AIAN 

Whites

Findings 

for Group 3 was $600 and Whites was $737 (difference in values of Figure 7 and Figure 4). Prescription drugs 

contributed the least to mean payments for AIAN (difference in values of Figure 8 and Figure 4). For 

prescription drugs the average decline in adjusted mean payments for Whites was largest ($935) while for IHS 

AIAN with IHS Program claims the values were lowest: Group 1 it was only $274 and Group 2 was $234. For IHS 

AIAN with no IHS Program claims (Group 3) the amount was $548, more like that for Other AIAN ($400) than 

Groups 1 and 2 or Whites. 

Figure 7. Adjusted Mean Payment per Recipient excluding payments for outpatient visits to clinics, hospitals, or physicians’ 

offices. Compare with Figure 4 Adjusted Mean Total Payments per Recipient. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $2,000 $4,000 $6,000 $8,000 $10,000 

24 


& Active User 





Other AIAN 

Whites

Findings 

Figure 8. Adjusted Mean Payment per Recipient excluding payments for hospital stays. Compare with Figure 4 Adjusted Mean 

Total Payments per Recipient, and Figure 6 Adjusted Mean Payment per Recipient excluding outpatient visits. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $2,000 $4,000 $6,000 $8,000 $10,000 

Figure 9. Adjusted Mean Payment per Recipient excluding payments for prescription drugs. Compare with Figure 4 Adjusted 

Mean Total Payments per Recipient, and Figure 6 Adjusted Mean Payment per Recipient excluding outpatient visits. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $2,000 $4,000 $6,000 $8,000 $10,000 

25 


& Active User 





Other AIAN 

Whites 


& Active User 





Other AIAN 

Whites

Findings 

Unadjusted mean payments for outpatient services to IHS and Tribal Program providers (Figure 10) for IHS 

AIAN were about 60% of the total paid to all providers (Figure 9, see Table 9). For Group 1 the proportion was 

58% ($1,800 out of at least $3100 per recipient), while for Group 2 the proportion was 62% ($1,530 out of at 

least $2,487 per recipient). The types of outpatient services included in IHS Program services provided by IHS 

and Tribal providers is more comprehensive than those included for all providers in ways that cannot be 

equalized with MAX claims data. In the Billings Area outpatient service payments for IHS Program outpatient 

services are so large that payments to IHS Program providers for IHS outpatient services actually exceed 

payments to all providers for Outpatient Visit, Laboratory, Imaging, and Dental services (Table 9). 

Figure 10. Unadjusted Mean Payment per Recipient for outpatient services including visits, laboratory and 

imaging, and dental services. Compare with Figure 10 unadjusted Mean Payment per Recipient for IHS or Tribal 

outpatient services. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

Outpatient Payments 

to all Providers 

$- $1,000 $2,000 $3,000 $4,000 $5,000 $6,000 $7,000 

The types of outpatient services provided by IHS Program Providers are more comprehensive than those 

included here for all providers in ways that cannot be equalized with MAX data. In the Billings Area (Montana & 

Wyoming states) these other outpatient services are so much broader that payments to IHS Program Providers 

for IHS Program outpatient services actually exceed payments to All Providers for Outpatient Visit, Laboratory, 

Imaging, and Dental services for the same recipients. 

26 


& Active User 





Other AIAN 

Whites

Findings 

Figure 11. Unadjusted Mean Payment per Recipient for outpatient visits, laboratory & imaging, dental, and other IHS 

outpatient services through IHS or Tribal clinics or hospitals. Compare with IHS AIAN Groups 1 and 2 in Figure 9. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

Outpatient Payments 

to IHS & Tribal Programs 

$- $1,000 $2,000 $3,000 $4,000 $5,000 $6,000 $7,000 

27 


& Active User 


but Not Active User

Findings 

Table 10. Unadjusted Mean Fee-for-Service payments per IHS AIAN Recipient for Outpatient Visit, Laboratory, Imaging and 

Dental services. 

Outpatient Visit, Laboratory, Imaging, and Dental* Payments per IHS AIAN Recipient 

Group 1.IHS Program claims 

& Active User 

IHS Program 

All Providers Providers* All Providers 

28 

Group 2.IHS Program claims 


IHS Program 

Providers* 

IHS Area Unadjusted Mean Payments Difference Unadjusted Mean Payments Difference 

Aberdeen $ 2,045 $ 1,330 $ 715 $ 1,471 $ 1,045 $ 426 

Alaska $ 2,554 $ 554 $ 2,000 $ 2,140 $ 387 $ 1,753 

Albuquerque $ 2,124 $ 1,191 $ 933 $ 1,453 $ 974 $ 479 

Bemidji $ 2,437 $ 592 $ 1,845 $ 2,417 $ 1,105 $ 1,313 

Billings* $ 1,202 $ 2,039 $ (837) $ 1,202 $ 1,724 $ (521) 

California $ 2,026 $ 1,397 $ 629 $ 1,882 $ 1,052 $ 830 

Nashville $ 1,688 $ 842 $ 846 $ 2,351 $ 530 $ 1,821 

Navajo $ 4,827 $ 3,340 $ 1,486 $ 2,200 $ 2,200 $ - 

Oklahoma $ 1,854 $ 943 $ 910 $ 1,935 $ 918 $ 1,017 

Phoenix $ 6,892 $ 4,102 $ 2,790 $ 4,841 $ 3,318 $ 1,523 

Portland $ 1,963 $ 1,791 $ 173 $ 1,809 $ 1,356 $ 453 

Tucson $ 7,588 $ 3,470 $ 4,118 $ 6,143 $ 3,769 $ 2,374 

Area Mean $ 3,100 $ 1,800 $ 1,300 $ 2,487 $ 1,530 $ 956 

Recipients in Medical Comprehensive Managed Care Plans (CMCP) 

Age, Sex, Disability & Morbidity Do Not Explain Differences in Payments for Recipients with 

Managed Medical Care 

If left unadjusted for any determinants, the mean total payment for IHS AIAN recipients with capitated medical 

care in a Comprehensive Managed Care Plan (CMCP) who are less than 65 years of age is slightly higher for 

Whites ($4,268 compared to $3,865, or about $400 difference), but substantially higher for Other AIAN ($3,426, 

or $842 difference) (Figure 11). The minimal actuarial adjustment for age and sex differences increases the 

difference in payments between IHS AIAN and Whites ($6,273 compared to $5,265, or about $1,000) but not 

with Other AIAN ($6,273 compared to $5,398, or about $875). As with the FFS recipients not in CMCP plans, this 

effect is expected because the IHS AIAN have a younger age distribution than that of Whites and therefore lower 

expected payments, but a similar age distribution to that of Other AIAN and therefore similar expected 

payments. Again, the mean adjusted payment increases for all three groups with the age adjustment because 

payments for older more costly recipients are given equal weight with less costly younger recipients which 

constitute the vast majority of the recipients in all three groups. This is how the statistical adjustment controls 

for the differences in age distributions across the three groups. 

Adjusting payments further for disability status, either because of Medicaid eligibility as a disabled enrollee, or 

as a Medicare-Medicaid ‘Dual’ enrollee under age 65, increases the adjusted means but not the differences in 

means for the groups (Figure 11). The mean total payment for IHS AIAN is about $1,000 higher for Whites 

($7,439 compared to $6,490) and for Other AIAN ($6,479). Again the adjusted mean rises for all groups 

because the higher payments for the smaller groups of Disabled are given equal weight with less costly but 

higher proportions of non-disabled recipients during the statistical adjustment.

Findings 

Figure 12. Adjustment of Mean Total Payment per Recipient for IHS AIAN, Other AIAN and Whites less than 65 years of age 

enrolled 12 months with any months of enrollment in a Comprehensive Managed Care Plan (CMCP) (successive adjustments 

for age and sex, & disability). Payments include capitated plan premiums for medical services and either FFS claims or 

managed care plan premiums for non-medical services (behavioral health or dental). 

$10,000 

$9,000 

$8,000 

$7,000 

$6,000 

$5,000 

$4,000 

$3,000 

$2,000 

$1,000 

$- 

$4,268 

$3,865 

$3,426 

$6,273 

$5,265 

$5,398 

$7,439 

$6,490 

$6,479 

Unadjusted Age*Sex Adjusted Disabled*Medicare, 

Age*Sex Adjusted 

29 

$5,743 $5,200 

$5,050 

& Morbidity Adjusted 

IHS AIAN 

Other AIAN 

Whites 

After the further adjustment for variation in morbidity among the three groups, the differences are reduced 

between IHS AIAN and Whites, and between IHS AIAN and Other AIAN, but the differences remain that are as 

large as the unadjusted Mean Total Payments (about $700 and $500 respectively, Figure 11). CMCP plan 

members in all three groups had lower morbidity scores than their FFS counterpart groups in Figure 1. This 

could be because managed care participants are healthier or because managed care plans provide premium 

and encounter claims but not service claims. The morbidity scores for the low income Medicaid eligible Whites 

(0.949 with 90% Confidence Limits, C.L., from 0.946 to 0.952) were actually worse than those of IHS AIAN 

(0.863 with 90% C.L. 0.858 to 0.868) and Other AIAN (0.843 with 90% C.L. 0.835 to 0.851) (Attachment Tables 

D1 and D2). 

Payments across IHS Areas Vary Substantially for Recipients with Managed Medical Care 

Among recipients with any enrollment in medical managed care plans (CMCP) in their 12 months of Medicaid 

enrollment, mean total payments (including any FFS services) are higher for IHS AIAN than Whites in half of the 

10 Areas with any CMCP plans (Bemidji, California, Phoenix, Portland and Tucson Areas, Figure 13). Nashville 

which had lower payments for IHS AIAN who were not enrolled in any CMCP (Figure 2) is now joined by 

Aberdeen, Albuquerque, Navajo and Oklahoma Areas which have lower payments for IHS AIAN than Whites. 

Alaska and Billings Areas did not have AIAN or Whites in the counties of the IHS program service delivery areas 

enrolled in CMCP plans.

Findings 

Figure 13. Adjusted Mean Total Payment per Recipient for IHS AIAN, Other AIAN and Whites less than 65 years of age enrolled 

12 months with any months of managed medical care in a CMCP across the IHS Areas (adjusted for age and sex, and for 

Disability, Dual eligibility with Medicare, & Morbidity). 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $2,000 $4,000 $6,000 $8,000 $10,000 

30 

IHS AIAN 

Other AIAN 

Whites 

Payments for Recipients in Managed Medical Care are Higher for IHS AIAN with Medicaid IHS 

Program Claims 

When the IHS AIAN recipients with any enrollment in medical managed care plans (CMCP) are divided into 

those with and without Medicaid IHS Program claims paid to IHS system health care providers (I/T), payments 

are higher for IHS AIAN who had Medicaid IHS Program claims than those who did not in all Areas but 

Aberdeen (Figure 14). Whether the IHS AIAN who had Medicaid IHS Program claims were also IHS Active 

Users (Group 1) or not (Group 2), payments are higher than those of IHS Active Users who did not have any 

Medicaid IHS Program claims (Group 3). In Alaska, Billings and Nashville Areas there were no IHS AIAN with 

Medicaid IHS Program claims who also were enrolled in medical managed care plans (CMCP). Albuquerque, 

Bemidji and Oklahoma Areas joined the three Areas with recipients in the state of Arizona (Navajo, Phoenix 

and Tucson Areas) to have much higher payments for IHS AIAN who had Medicaid IHS Program claims when 

compared to IHS Active Users who did not have any Medicaid IHS Program claims. The payments were so much 

higher for Bemidji, Oklahoma, Phoenix and Tucson that the scale in the figure was expanded to accommodate 

adjusted mean total payments between $10,000 and $12,000 per recipient.

Findings 

Figure 14. Adjusted Mean Total Payment per Recipient for the IHS AIAN with any months of managed medical care in a CMCP 

in Figure 13 divided into three groups across 12 IHS Areas. Other AIAN and White results are shown as well. Note that the 

scale was expanded to accommodate adjusted payments greater than $10,000 IHS AIAN with Medicaid IHS Program claims in 

Bemidji, Oklahoma, Phoenix and Tucson Areas. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

$- $2,000 $4,000 $6,000 $8,000 $10,000 $12,000 

31 


& Active User 





Other AIAN 

Whites

Analysis 

Group 

Compiled Findings for All Analyses and Areas 

Findings 

Adjusted Mean Payments for IHS AIAN are Overall Higher 

IHS AIAN generally had higher adjusted mean total payments than either Other AIAN or Whites for nearly all 

types of Recipients analyzed, though the payments for IHS AIAN were only 4% to 9% higher than those of 

Whites (depending on the type of Recipient, Table 11). The payments were 18% to 32% higher for four of six 

types of Recipients when compared to Other AIAN. To obtain an overall measure for all types of Recipients in 

the 6 analyses, we first determined the adjusted mean total payment for each type of IHS AIAN Recipient (Table 

11) in each IHS Area (Attachment Table L.1). We then determined the difference between the adjusted mean 

total payment for IHS AIAN with that of each type of Other AIAN and White Recipients in the IHS Areas 

(Attachment Table L.1). The difference between the payment for the IHS AIAN and comparison group was 

expressed as a percent of the payment for IHS AIAN. That percent difference in mean payments was multiplied 

by the number of IHS AIAN in each Recipient and IHS Area to provide a weighted mean (average) of the relative 

differences (Attachment Table L.2). The findings for the differences thus determined across the six types of 

Recipients are presented in Table 11 and Figure 15. The findings across the 12 IHS Areas are presented in the 

next section (Figures 16 and 17, Attachment Table L.3). 

Table 11. Mean percent differences in the adjusted Mean Total Payments for IHS AIAN recipients compared to Other AIAN and 

Whites for the 6 groups of recipients. See also Figure 15 and Attachment Table L.2. 

Mean 

Payment 

Analyses 

1 2 3 4 5 * 6 * 

Differen 

ce in 

Means 

Recipients Less than 65 years of Age Recipients Aged 65 & Over 

12 months Enrollment Any Months of Enrollment 12 months Enrollment Any Months of Enrollment 

FFS Medical 

(220,368) 

Capitated Medical 

(34,490) 

Mean 

Payment 

Differe 

nce in 

Means 

FFS Medical 

(336,888) 

Mean 

Payment 

Differe 

nce in 

Means 


(116,277) 

Mean 

Payment 

32 

Differen 

ce in 

Means 

FFS Medical 

(8,554) 

Mean 

Paymen 

t 

Differe 

nce in 

Means 

Capitated 

Medical 

(1,759)* 

Mean 

Payment 

IHS AIAN $ 5,976 

$ 6,157 

$ 848 

$ 702 

$ 8,609 

$ 888 

FFS Medical 

(14,715) 

Payments per Year Payments per Month Payments per Year Payments per Month 

Differen 

ce in 

Means 

Other AIAN 24% 25% -17% 32% -38% 18% 

Whites 13% 9% 12% 4% 8% -21% 

*There were insufficient numbers of recipients over age 65 in capitated medical care to analyze mean payments reliably. 

Capitated 

Medical 

(3,884)*

Findings 

Differences in adjusted mean total payments for IHS AIAN were 2% to 13% higher than those for Whites in five 

of the six types of Medicaid Recipients analyzed (Table 11, Figure 15). Only in the analysis of Recipients age 65 

and over in FFS medical care with any number of months of enrollment, was the payment lower. The adjusted 

mean per capita payment for IHS AIAN of $888 per month was 21% lower than the payment for Whites. When 

IHS AIAN payments were compared to those of Other AIAN, for four of the six types of Medicaid Recipients 

analyzed the payments IHS AIAN payments were higher, while in two they were not. Payments 17% lower were 

found for Other AIAN when compared to the adjusted mean of $848 per month for IHS AIAN Recipients under 

age 65 with any number of months of enrollment in FFS medical care. Payments 28% lower than the adjusted 

mean of $8,609 per year were found for Other AIAN when Recipients with 12 months of enrollment in FFS 

medical care and aged 65 and over were analyzed. 

Figure 15. Mean percent differences in the adjusted Mean Total Payments for IHS AIAN recipients compared to Other AIAN 

(red bars) and Whites (grey bars) for the 6 analytical groups of recipients in Table 11. 

50% 

40% 

30% 

20% 

10% 

0% 

-10% 

-20% 

-30% 

-40% 

-50% 

Analysis 

1 2 3 4 5 6 

33 

Other AIAN 

Whites

Findings 

Adjusted Mean Payments for IHS AIAN are Lower than Whites in Some IHS Areas 

When the overall measure for the same adjusted mean total payments examined above by type of Medicaid 

recipient, are calculated by IHS Area, the overall finding differs for four of the Areas: Aberdeen, Billings and 

Oklahoma Areas had lower adjusted mean total payments for IHS AIAN compared to Other AIAN across the 

different types of Recipient analyzed (Figures 16, Attachment Table L.3). Aberdeen, Billings and Albuquerque 

Areas had lower adjusted mean total payments for IHS AIAN compared to Whites (Figures 17, Attachment Table 

L.3). Findings for all other Areas tended to be higher mean payments. 

Figure 16. Percent differences in the adjusted Mean Total Payments for IHS AIAN recipients compared to Other AIAN for the 6 

analyses by IHS Area. Positive percent changes indicate the relative amount by which IHS AIAN payments were higher than 

Other AIAN. Negative percent changes indicate that by which they were lower. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

-60% -40% -20% 0% 20% 40% 60% 

Figure 17. Percent differences in the adjusted Mean Total Payments for IHS AIAN recipients compared to Whites for the 6 

analyses by IHS Area. Positive percent changes indicate the relative amount by which IHS AIAN payments were higher than 

Whites. Negative percent changes indicate that by which they were lower. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

-60% -40% -20% 0% 20% 40% 60% 

*There are insufficient numbers of whites in the counties of the Tucson Area for a comparison to be made. 

34

Findings 

Adjusted Mean Payments for IHS AIAN without IHS Program Medicaid Claims are Lower than 

Others 

IHS AIAN who were Active Users but had not IHS Program Medicaid claims had substantially lower payments 

than all other groups (Table 12). Payments for the three different subgroups of IHS AIAN created by the linkage 

of data with the IHS registry system were analyzed in the same way as in Table 11 to arrive at an overall 

measure that allowed comparison of IHS Active Users with no IHS Program Medicaid claims with the two 

groups of IHS AIAN with IHS Program claims as well as Other AIAN and Whites (Attachment Table L.5). There 

were sufficient numbers of IHS AIAN without Medicaid IHS Program claims under age 65 to allow analyses but 

not over age 65, and therefore a total of 4 analyses were possible. The per capita payments for IHS AIAN Active 

Users without IHS Program Medicaid claims were substantially lower for all types of Medicaid recipients when 

compared to either IHS AIAN subgroup with IHS Program Medicaid claims (IHS Active Users with IHS Program 

claims: 64% to 93% lower; and IHS Program claims only: 26% to 100%). Payments were substantially lower 

than those of other AIAN who did not use the IHS system (11% to 30% depending on the type of Recipient), and 

of whites living in the same counties (14% to 46% depending on the type of Recipient). 

Table 12. Difference in Adjusted Mean Total Payment per Recipient for IHS AIAN Active Users (group 3) with no IHS 

Program Medicaid claims of each type of Recipient analyzed compared to IHS AIAN groups IHS Program Medicaid claims 

(groups 1 and 2), Other AIAN and Whites in each Area. 

IHS Area Analysis Group 

Recipie 

nts 

1 

FFS Medical 

(220,368) 

Mean 

Paymt 

Differe 

nce 

Recipie 

nts 

Mean 

Paymt 

35 

Analyses 

2 3 4 

Recipients Less than 65 years of Age 

12 months Enrollment Any Months of Enrollment 


(34,490) 

Differe 

nce 

Recipie 

nts 

FFS Medical 

(336,888) 

Payments per Year Payments per Month 

Mean 

Paymt 

Differe 

nce 

Recipie 

nts 


(116,277) 

All Areas 1.IHS Claims & User -64% -76% -93% -71% 

Mean 

Paymt 

Differe 

nce 

2.IHS Claims -52% -81% -100% -26% 

3.IHS Active User 55670 $ 3,820 

13951 $ 4,134 103859 $ 585 

46931 $ 465 

Other AIAN -16% -11% -30% -16% 

Whites -27% -14% -32% -46% 

When the overall measure was calculated by IHS Area across the 4 types of Medicaid recipients, only Nashville 

Area was found to have overall higher payments (26% higher) for the IHS AIAN Active Users without IHS 

Program Medicaid claims than for Other AIAN who did not use the IHS system (Figure 18, Attachment Table 

L.6). Only Tucson was found to have substantially higher payments for the IHS AIAN Active User group than 

Whites (13%, Figure 19). Nashville had only 1% higher payments than Whites, which is negligible. Oklahoma 

Area had lower payments for the IHS AIAN Active User group than all four of the other groups but only 1% to 

4% lower (Attachment Table L.6). Aberdeen Area also had lower payments that were only 1% to 9% lower than 

the four other groups.

Findings 

Figure 18. Percent differences in the adjusted Mean Total Payments for IHS AIAN recipients without Medicaid IHS Program 

claims compared to Other AIAN for the 4 analyses under age 65. See Attachment Table L.6. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

-60% -40% -20% 0% 20% 40% 60% 

Figure 19. Percent differences in the adjusted Mean Total Payments for IHS AIAN recipients without Medicaid IHS Program 

claims compared to Other AIAN for the 4 analyses under age 65. See Attachment Table L.6. 

Aberdeen 

Alaska 

Albuquerque 

Bemidji 

Billings 

California 

Nashville 

Navajo 

Oklahoma 

Phoenix 

Portland 

Tucson 

-60% -40% -20% 0% 20% 40% 60% 

36

Findings 

Medicaid Paid Fraction of Total Health Care Costs of IHS Active Users 

IHS Calculated Health Care Costs for IHS Active Users 

The IHS determined that the actuarially calculated benchmark (standardized) cost of a Federal Employee Health 

Plan of personal medical services for the AIAN users at the IHS and tribal provider sites in the IHS Indian health 

care service delivery system was an estimated $4,106 in 2006 (Table 13, 2007 calculations from the Federal 

Employees Health Plan Disparities Index). Within each Area, for each IHS and tribal health care site they adjusted 

how this benchmark amount would need to be increased or decreased (negative numbers are in parentheses in 

Table 13) to purchase the care at that site using standard actuarial techniques. They then aggregated results at 

the Area level. 

Table 13. IHS determined differences in per capita costs of health care costs for IHS Users across IHS Areas and the expected 

adjustments including Alternate Resource amounts. Amounts in parentheses (x) are negative reductions in expected costs of 

care to IHS and tribal providers for costs of care of their IHS Active User population. 

IHS Area 

Benchmark Adjustments Adj Bnchmk Adjustments Adj Bnchmk 

Cost per 

IHS Active 

User 2006 

Economic 

Adjustment 

Health Status 

& Poverty 

Adjustment 

37 

Cost per 

IHS Active 

User 

Alternate Resource 

Adj aggregated for 

Sites by Area 

Cost per 

IHS Active 

User 

Aberdeen $ 4,106 $ (189) $ 774 $ 4,691 $ (999) -21% $ 3,693 

Alaska $ 4,106 $ 1,856 $ (131) $ 5,831 $ (1,396) -24% $ 4,435 

Albuquerque $ 4,106 $ (202) $ 9 $ 3,913 $ (822) -21% $ 3,091 

Bemidji $ 4,106 $ (101) $ 333 $ 4,338 $ (815) -19% $ 3,523 

Billings $ 4,106 $ (128) $ 502 $ 4,480 $ (910) -20% $ 3,569 

California $ 4,106 $ 488 $ (399) $ 4,195 $ (728) -17% $ 3,467 

Nashville $ 4,106 $ 266 $ (263) $ 4,109 $ (678) -17% $ 3,432 

Navajo $ 4,106 $ (597) $ 97 $ 3,606 $ (902) -25% $ 2,705 

Oklahoma $ 4,106 $ (414) $ (170) $ 3,522 $ (687) -20% $ 2,834 

Phoenix $ 4,106 $ 95 $ (10) $ 4,191 $ (806) -19% $ 3,385 

Portland $ 4,106 $ 572 $ (259) $ 4,419 $ (770) -17% $ 3,649 

Tucson $ 4,106 $ (278) $ 102 $ 3,930 $ (867) -22% $ 3,063 

The $4,106 benchmark amount for the FEHP medical, dental, behavioral health? and vision care was adjusted 

for the following: 

Actuarial Adjustments for age and sex distribution of the AIAN user population of IHS and Tribal sites 

Economic Adjustments for differences in health care costs (the COLI Index, see Methods Medical Cost 

Index); Size (economies of scale of larger provider sites) and whether all hospital and specialty services are 

purchased because of lack of access to an IHS or tribal hospital 

Health and Poverty Adjustments for differences in health status (relative rates for the Areas for injuries and 

poisonings, alcoholism, diabetes, heart disease, cancer); Area differences in birth rates; Area differences in 

Percent of population over age 55; and Area and site differences in Poverty Rates among AIAN 

After adjustments, the expected Benchmark cost per IHS Active User varied across the IHS Area varied 

considerably from a low of $3,522 in Oklahoma Area to a high of %5,831 in Alaska Area. 

The amount deducted for third party ‘Alternate Resources’ from the adjusted benchmark cost in each IHS Area 

for FY2007 is shown in Table 13. The calculations included the estimate that Medicaid/CHIP, Medicare, Private 

Insurance and other third party payers pay about 25% of the adjusted health care costs for IHS Active Users 

across all IHS and tribal provider sites in the IHS Areas based on 1987 survey data. The Alternate Resources 

include estimated collections to the IHS and tribal sites from the third party payers and payments made to other

Findings 

providers for services needed by IHS and tribal site users. At sites without access to an IHS or tribal hospital the 

amount deducted from the benchmark cost for Alternate Resources was higher because no hospital costs were 

billable by IHS or tribal provider sites, and instead had to be purchased. 

Medicaid Fraction of IHS Active User Health Care Costs 

We can use the actual Medicaid (that is Total Medicaid and Third Party) payments for IHS AIAN enrollees in 

2006 that are documented in the Medicaid-IHS linked data in this report to update the Medicaid/CHIP portion 

of Alternate Resources paid in each Area per IHS Active User. Because IHS adjusted the expected benchmark 

cost for each Area, the proper payment information to use is the Unadjusted Mean Payment per IHS AIAN 

Recipient multiplied by the rate at which IHS Active Users in the IHS Registry were found to be Medicaid 

enrollees, and then the rate at which the IHS AIAN Medicaid enrollees were found to be Recipients with 

Medicaid paid claims (Table 14). 

When we insert the Mean Total Payments for the appropriate IHS AIAN Medicaid recipients in the IHS analytical 

framework (Attachment Table C.4 data inserted in column A of Table 14), we find that the Medicaid Alternate 

Resources are higher than expected from the 1987 survey data, (Table 14 compared to Table 13). 

Table 14. Calculation of the expected Medicaid Mean Total Payment per IHS Active User across IHS Areas as a percent of the 

FDI Adjusted Benchmark (Column F, blue column from Table 13). Total payment includes the amounts paid by Medicaid/CHIP 

and Third Parties for Medicaid enrollees with paid claims (recipients). 

IHS Area 

Unadjusted Mean 

Total Medicaid 

Payment per IHS 

AIAN Recipient* 

IHS Active Users 

w ho are Medicaid 

Enrollees (%) 

IHS AIAN Medicaid 

Enrollees w ho are 

Recipients 

(%) 

38 

IHS Active User 

Recipients 

(% of all IHS 

Active Users) 

Unadjusted 

Mean Total 

Medicaid 

Payment 

per IHS Active 

User 

FDI Adj Bnchmk 

per IHS Active 

User 

Medicaid 

Payments 

(% of FDI Adj 

Benchmark) 

A B C D = B x C E = A x D F G=E/F 

Aberdeen $ 3,024 44% 96% 42% $ 1,277 $ 4,691 27% 

Alaska $ 6,575 37% 92% 34% $ 2,238 $ 5,831 38% 

Albuquerque $ 3,162 39% 93% 36% $ 1,147 $ 3,913 29% 

Bemidji $ 4,172 35% 92% 32% $ 1,343 $ 4,338 31% 

Billings $ 4,078 39% 96% 37% $ 1,527 $ 4,480 34% 

California $ 4,261 29% 99% 29% $ 1,223 $ 4,195 29% 

Nashville $ 3,983 22% 88% 19% $ 771 $ 4,109 19% 

Navajo $ 4,065 49% 84% 41% $ 1,673 $ 3,606 46% 

Oklahoma $ 2,924 26% 95% 25% $ 722 $ 3,522 21% 

Phoenix $ 5,757 45% 79% 36% $ 2,047 $ 4,191 49% 

Portland $ 4,113 34% 94% 32% $ 1,315 $ 4,419 30% 

Tucson $ 6,244 51% 80% 41% $ 2,548 $ 3,930 65% 

*From Attachment C: Recipients Enrolled Any Number of Months in Medicaid (Attachment Table C.4) 

The percent of all IHS Active Users who are Medicaid Recipients (column D) is the product of multiplying two 

key rates of Medicaid participation determined from linked IHS and Medicaid data:

Findings 

Percent of IHS Active Users who are Medicaid enrollees (column B). The Medicaid enrollment rate for IHS 

Active Users was determined during the linkage of IHS Registry data to this Medicaid enrollee data (see 

Methods and Table 2 in the 2011 report Integrating Medicaid and Indian Health Service Data). 

Percent of IHS Active User Medicaid Enrollees who are Recipients of Medicaid Paid Services (column C). 

The Medicaid participation rate of enrollees was determined by dividing the number of IHS AIAN Medicaid 

enrollees that had paid claims of more than zero dollars in column A, by all the IHS AIAN Medicaid 

enrollees (Attachment Table C.3). 

When expressed as a percent of the FDI Adjusted Benchmark Costs, the Areas with lowest fractions of health 

care costs paid by Medicaid for their IHS Active User population are Nashville (19%) and Oklahoma (21%)with 

a Medicaid Fraction of about one-fifth ( Figure 15). Aberdeen, California, Albuquerque, Portland and Bemidji 

Areas have mid-range fractions of between a little more than one quarter and a little less than one-third (27% to 

31%). Alaska and Billings are in the middle of the Area rankings with a little more than one-third of the costs 

paid by Medicaid (34% to 38%). And Navajo and Phoenix have Medicaid fractions of nearly one half (46% and 

49% respectively). Tucson has the highest Medicaid paid fraction of nearly two-thirds (65%). 

Figure 20. Medicaid Alternate Resources paid to all providers as percent of IHS calculated FDI benchmark health care costs 

for IHS Active Users in each Area. 

Nashville 

Oklahoma 

Aberdeen 

California 

Albuquerque 

Portland 

Bemidji 

Billings 

Alaska 

Navajo 

Phoenix 

Tucson 

19% 

21% 

27% 

29% 

29% 

30% 

31% 

34% 

38% 

46% 

49% 

Medicaid Fraction Paid to IHS and Tribal Providers for IHS Active Users 

Using the Medicaid IHS Program claims payment data for IHS AIAN Medicaid recipients we can calculate the 

expected Mean Medicaid IHS Program Payment per IHS Active User to IHS and Tribal (I/T) providers. We 

substitute the unadjusted Mean Medicaid IHS Program Payment per IHS AIAN Recipient for the Total Payment 

in the calculations in Table 14 to obtain the percents in Figure 16. 

When the outcomes are expressed as a percent of the FDI Adjusted Benchmark Cost, the Areas with I/T 

providers with the lowest reported Alternate Resources for IHS Active User Medicaid enrollees are Nashville 

(2%), Bemidji (4%), Oklahoma (4%) and California (6%), (Figure 15). For Portland, Albuquerque, and Aberdeen 

Areas only 8% of all Medicaid payments are to IHS and Tribal providers for health care costs of their Active 

Users, and Alaska Area is only 9%. Medicaid resources Billings (12%), Navajo (19%), Phoenix (21%), and 

Tucson Areas (24%) have the highest relative Medicaid resources. 

39 

65% 

0% 20% 40% 60% 80% 100% 

Percent of FDI Benchmark Cost 

All Providers

Findings 

Figure 21. Medicaid Alternate Resources paid to I/T providers as percent of IHS calculated FDI benchmark health care costs 

for IHS Active Users in each Area. 

Nashville 

Oklahoma 

Bemidji 

California 

Portland 

Albuquerque 

Aberdeen 

Alaska 

Billings 

Navajo 

Phoenix 

Tucson 

2% 

4% 

4% 

6% 

8% 

8% 

8% 

9% 

12% 

19% 

21% 

24% 

0% 20% 40% 60% 80% 100% 

Percent of FDI Benchmark Cost 

40 

I/T Providers


IHS AIAN Payments Compared to Others 

There is no evidence on a national basis that Medicaid per capita payments for the AIAN user population of IHS 

Programs (IHS AIAN) in 2006 are lower than for other Medicaid recipients. Overall in 9 of the 12 IHS Areas 

Medicaid payments for personal health care services of IHS AIAN were as high as or higher than either selfdeclared 

AIAN who did not use the IHS health care system and of whites living in the same counties. The 

exceptions to the general finding in four IHS Areas were: In Albuquerque Area the per capita payments overall 

were higher than those of self-declared AIAN who did not use the IHS system, but not higher than Whites. In 

Oklahoma Area the payments were higher than for Whites, but not the AIAN who did not use the IHS system. In 

Aberdeen and Billings Areas the payments were lower for most types of IHS AIAN Medicaid recipients analyzed 

when compared to other AIAN or whites. For the Nashville Area the conclusion requires acknowledgment that 

the Medicaid total payments are higher because Third Party payments for Medicaid claims were included in the 

total per capita payment analyzed for all the IHS areas. In the Nashville Area the contribution to the total per 

capita payment for Medicaid claims due to private insurance is substantial. Nashville Area also was unlike other 

Areas in the large number of states that do not report any IHS Program claims. Nashville Area has many states 

and counties, but many states have IHS system providers with small numbers of Active Users. These state 

Medicaid programs when interviewed were more likely to acknowledge in 2010 they had no special activities to 

identify IHS or tribal provider Medicaid claims (Korenbrot and Crouch, 2010). 

In the Tucson, Navajo and Phoenix Areas the payments for the AIAN user population of IHS Programs were 

highest, which was found to be attributable to the payment levels in the state of Arizona. When Medicaid 

recipients in Arizona were excluded, the AIAN payments for Navajo and Phoenix Areas relative to other AIAN 

and whites became more like those in other Areas (the Tucson Area is entirely within Arizona and could not be 

analyzed with the exclusion of Arizona Medicaid recipients). 

In making these comparisons, payments for six different types of Medicaid service recipients were analyzed. 

Medicaid recipients were classified depending on whether they were under age 65 or not, enrolled all year in 

Medicaid or not, and whether they received only fee-for-service (FFS) medical care or had any of their medical 

services in managed care. The payments for each type of Medicaid recipient were risk-adjusted for differences 

between the IHS AIAN and comparison groups with respect to age, sex, disability, and dual-enrollment with 

Medicare. Adjustments for differences among the groups in morbidity were possible for those enrolled all year 

in Medicaid, but not those enrolled less than a year. The payments were also adjusted for variation in health 

care prices across the IHS Areas whether analyzed as mean payment per year for recipients enrolled all year, or 

mean payment per month for when recipients were analyzed regardless of length of enrollment. 

The findings were not found to depend on any particular type of Medicaid recipient analyzed. For any given 

Area one or more of the recipient types the AIAN user population might have an adjusted mean per capita 

payment higher or lower than a comparison group. One of the implications of this finding is that the overall, 

results did not depend on whether the payments were adjusted for differences in morbidity or not, or whether 

they received their medical care in a FFS or managed care system. 

The IHS AIAN FFS per capita payments were dominated by outpatient services (including claims for clinic, 

medical care practitioners, laboratory and imaging, and dental services). Inpatient payments were a small 

41


proportion of overall payments. Prescription drug payments contributed little to the payments for IHS AIAN 

compared to their contribution to payments for Other AIAN or whites. There were almost no payments for IHS 

Program claims for prescription drugs outside of the Bemidji Area. 

This evidence supports the general conclusion that in most Areas the IHS system providers and the state 

Medicaid programs with which they interface in these Areas are as a whole are doing a well at billing and 

collection for services provided to Medicaid enrolled users of the IHS system. In Aberdeen, Billings, 

Albuquerque and Oklahoma Areas, however, it is possible that either IHS system or other providers who 

provide care for these AIAN do not file as many claims, or are denied more claims for their care. It is also 

possible that in Albuquerque Area the reason that lower payments were found only compared to self-declared 

AIAN who do not use the IHS system is because these other AIAN have higher demands for health care when ill 

because they are not in the IHS system. The morbidity risk-adjustment is only a partial adjustment for health 

status differences, because it depends on people accessing their Medicaid health care provider over the year to 

have information on health status to adjust. 

Medicaid-enrolled IHS Active Users without IHS Program Medicaid claims 

IHS Active Users with Medicaid claims but no IHS Program Medicaid claims had substantially lower payments 

over all the recipient types analyzed. The per capita payments for this subgroup of IHS AIAN were substantially 

lower for all types of Medicaid recipients analyzed than those of: 1) other IHS AIAN with IHS Program Medicaid 

claims, 2) other AIAN who did not use the IHS system, and 3) whites living in the same counties. This was found 

as an overall conclusion for all IHS Areas when the compared to the IHS AIAN with IHS Program Medicaid 

claims. This was found for all but one IHS Area compared to other AIAN (Nashville) and for one IHS Area 

compared to whites (Tucson). The payments were risk-adjusted and therefore it is not likely that they are 

lower because these are healthier IHS AIAN than the other groups of IHS AIAN. This finding supports the 

conclusion that IHS system providers may not be doing all the billing and collections of Medicaid for care they 

have provided to their IHS user population. 

Medicaid-paid Fraction of IHS Active User Costs 

The fraction of health care costs needed by the IHS Active User population that is paid by Medicaid (and 

Medicaid-CHIP) is 25% or more in 9 of 12 IHS Areas, but varied from 19% to 65% depending on the IHS Area. 

Areas with the lowest fraction of about one-fifth are Nashville (19%) and Oklahoma (21%). Aberdeen, 

California, Albuquerque, Portland and Bemidji Areas have mid-range fractions of between a little more than one 

quarter and a little less than one-third (27% to 31%). Alaska and Billings are in the middle of the Area rankings 

with a little more than one-third of the costs paid by Medicaid (34% to 38%). And Navajo and Phoenix have 

Medicaid fractions of nearly one half (46% and 49% respectively). Tucson has the highest Medicaid paid 

fraction of nearly two-thirds (65%). 

When the amounts paid by Medicaid to IHS and tribal providers are separated out of the Medicaid fraction and 

compared to the total health care costs of their user population, the Areas with the lowest reported Medicaid 

fraction paid to IHS and tribal providers by Medicaid are Nashville (2%), Bemidji (4%), Oklahoma (4%) and 

California (6%). For Portland, Albuquerque, and Aberdeen Areas only 8% the total health care costs needed by 

their user population are paid to IHS and tribal providers by Medicaid, and in Alaska Area it is only 9%. Billings 

(12%), Navajo (19%), Phoenix (21%), and Tucson Areas (24%) receive the highest Medicaid fractions. 

42

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44

Dear Tribal Leader: 

THE SECRETARY OF HEALTH AND HUMAN SERVICES 

WASHINGTON, D.C. 20201 

October 19, 20 12 

The Department of Health and Human Services (HHS) has been a leader in the federal 

government's efforts to improve its partnership with tribes. I am proud of our current 

government-to-government relationship with tribes from across the country. HHS continuously 

strives to find innovative and meaningful ways to work with you and your communities. One 

mechanism to ensure this collaboration is our Tribal Consultation Policy (TCP). 

At the very start of this administration, I requested your feedback and input with updating our 

TCP. I then created a federal tribal workgroup to coordinate all of your comments and 

recommendations. As a result of that work, in December 201 0, I signed the updated TCP. In 

that revision, HHS committed to evaluating that policy every few years, and that is why I write 

you today. 

In accordance with that policy, HHS has conducted tribal consultation in a variety of ways over 

the years, including: conference calls; direct correspondence to tribal leadership; meetings with 

tribal leadership at the local, area, or national levels; and national and regional consultations. 

Tribal leaders have indicated their agreement with current HHS policy, but we are always 

looking to make improvements. 

I am interested in your thoughts and views regarding our current TCP. I would appreciate it if 

you would take the time to review and evaluate our TCP and provide your feedback on what is 

working, what isn't, and what we can do to improve our activities to ensure meaningful tribal 

consultation policy. This will greatly assist us in our evaluation of the policy. Here is the link to 

our current policy for your review: http:ll~~ww.hhs.gov/intergovernmental/tribal/tcp.html. 

I ask that you provide us with your feedback by submitting your comments by Friday, 

December 7,2012. Comments can be sent to: 

Stacey Ecoffey, Principal Advisor for Tribal Affairs 

Office of Intergovernmental and External Affairs 

U.S. Department of Health and Human Services 

200 Independence Ave SW Room 620-E 

Washington, DC 2020 1 

Email: Consultation~,hhs.gov 

If you have further questions or concerns please feel free to contact Stacey Ecoffey, Principal 

Advisor for Tribal Affairs, via email at Stacev.Ecoffey@,hhs.aov or via phone at (202) 690-6060. 

Thank you in advance for your contribution and commitment to a strong HIIS Tribal 

Consultation Policy. 1 look forward to our continued partnership. 

Gthleen Sebelius

Tribal Consultation Policy HHS 

1. PURPOSE 

The U. S. Department of Health and Human Services (HHS) and Indian Tribes share the goal to 

establish clear policies to further the government-to-government relationship between the 

Federal Government and Indian Tribes. True and effective consultation shall result in information 

exchange, mutual understanding, and informed decision-making on behalf of the Tribal 

governments involved and the Federal Government. The importance of consultation with Indian 

Tribes was affirmed through Presidential Memoranda in 1994, 2004 and 2009, and an Executive 

Order (EO) in 2000. 

The goal of this policy includes, but is not limited to, eliminating health and human service 

disparities of Indians, ensuring that access to critical health and human services is maximized, 

and to advance or enhance the social, physical, and economic status of Indians. To achieve this 

goal, and to the extent practicable and permitted by law, it is essential that Federally-recognized 

Indian Tribes and the HHS engage in open, continuous, and meaningful consultation. 

This policy applies to all Divisions of the Department and shall serve as a guide for Tribes to 

participate in all Department and Division policy development to the greatest extent practicable 

and permitted by law. 

2. BACKGROUND 

Since the formation of the Union, the United States (U.S.) has recognized Indian Tribes as 

sovereign nations. A unique government-to-government relationship exists between Indian 

Tribes and the Federal Government. This relationship is grounded in the U.S. Constitution, 

numerous treaties, statutes, Federal case law, regulations and executive orders that establish 

and define a trust relationship with Indian Tribes. This relationship is derived from the political 

and legal relationship that Indian Tribes have with the Federal Government and is not based 

upon race. 

An integral element of this government-to-government relationship is that consultation occurs 

with Indian Tribes. The Executive Memorandum titled “Tribal Consultation” reaffirmed this 

government-to-government relationship with Indian Tribes on November 5, 2009. The 

implementation of this policy is in recognition of this special relationship. 

This special relationship is affirmed in statutes and various Presidential Executive Orders 

including, but not limited to: 

o Older Americans Act, P.L. 89-73, as amended; 

o Indian Self-Determination and Education Assistance Act, P.L. 93-638, as amended; 

o Native American Programs Act, P.L. 93-644, as amended; 

o Indian Health Care Improvement Act, P.L. 94-437, as amended; 

o Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L.104-193; 

o Presidential Executive Memorandum to the Heads of Executive Departments dated April 29, 

1994; 

o Presidential Executive Order 13175, Consultation and Coordination with Indian Tribal 

Governments, November 6, 2000; and 

o Presidential Memorandum, Government-to-Government Relationship with Tribal 

Governments, September 23, 2004 

o Presidential Memorandum, Tribal Consultation, November 5, 2009

o American Recovery and Reinvestment Act of 2009, P.L. 111-5, 123 Stat. 115 (Feb. 17, 

2009). 

o Children's Health Insurance Program Reauthorization Act of 2009, P.L. 111-3, 123 Stat. 8 

(Feb. 4, 2009). 

o Patient Protection and Affordable Care Act of 2010, P.L. 111-148, 124 Stat. 119 (Mar. 23, 

2010). 

3. TRIBAL SOVEREIGNTY 

This policy does not waive any Tribal Governmental rights and authority, including treaty rights, 

sovereign immunities or jurisdiction. Additionally, this policy does not diminish any rights or 

protections afforded other American Indians or Alaskan Natives (AI/AN) or entities under Federal 

law. 

The special government-to-government relationship between the Federal Government and 

Indian Tribes, established in 1787, is based on the Constitution, and has been given form and 

substance by numerous treaties, laws, Supreme Court decisions, and Executive Orders, and 

reaffirms the right of Indian Tribes to self-government and self-determination. Indian Tribes 

exercise inherent sovereign powers over their citizens and territory. The U.S. shall continue to 

work with Indian Tribes on a government-to-government basis to address issues concerning 

Tribal self-government, Tribal trust resources, Tribal treaties and other rights. 

Tribal self-government has been demonstrated to improve and perpetuate the government-togovernment 

relationship and strengthen Tribal control over Federal funding that it receives, and 

its internal program management. Indian Tribes participation in the development of public health 

and human services policy ensures locally relevant and culturally appropriate approaches to 

public issues. 

4. POLICY 

Before any action is taken that will significantly affect Indian Tribes it is the HHS policy that, to 

the extent practicable and permitted by law, consultation with Indian Tribes will occur. Such 

actions refer to policies that: 

1. Have Tribal implications, and 

2. Have substantial direct effects on one or more Indian Tribes, or 

3. On the relationship between the Federal Government and Indian Tribes, or 

4. On the distribution of power and responsibilities between the Federal Government and 

Indian Tribes. 

Nothing in this policy waives the Government’s deliberative process privilege. Examples of the 

government’s deliberative process privilege are as follows: 

5. The Department is specifically requested by Members of Congress to respond to or report 

on proposed legislation, the development of such responses and of related policy is a part 

of the Executive Branch’s deliberative process privilege and should remain confidential. 

6. In specified instances Congress requires the Department to work with Indian Tribes on the 

development of recommendations that may require legislation, such reports, 

recommendations or other products are developed independent of a Department position, 

the development of which is governed by Office of Management and Budget (OMB) Circular 

A-19. 

A. Each HHS Operating and Staff Division (Division) shall have an accountable process as

defined in Sections 8 and 9 of this policy to ensure meaningful and timely input by Indian Tribes 

in the development of policies that have Tribal implications. If Divisions require technical 

assistance in implementing these sections, the Office of Intergovernmental Affairs (IGA) can 

provide and/or coordinate assistance. 

B. To the extent practicable and permitted by law, no Division shall promulgate any regulation 

that has Tribal implications, or that imposes substantial direct compliance costs on Indian Tribes, 

or that is not required by statute, unless: 

7. Funds necessary to pay the direct costs incurred by the Indian Tribe in complying with the 

regulation are provided by the Federal Government; or 

8. The Division, prior to the formal promulgation of the regulation, 

a. Consulted with Indian Tribes throughout all stages of the process of developing the 

proposed regulation; 

b. Provided a Tribal summary impact statement in a separately identified portion of the 

preamble to the regulation as it is to be issued in the Federal Register (FR), which 

consists of a description of the extent of the Division's prior consultation with Indian 

Tribes, a summary of the nature of their concerns and the Division's position 

supporting the need to issue the regulation, and a statement of the extent to which 

the concerns of Tribal officials have been met; and 

c. Made available to the Secretary and to the Director of OMB any written 

communications submitted to the Division by Tribal officials. 

C. To the extent practicable and permitted by law, no Division shall promulgate any regulation 

that has Tribal implications and that preempts Tribal law unless the Division, prior to the formal 

promulgation of the regulation, 

9. Consulted with Tribal officials throughout all stages of the process of developing the 

proposed regulation; 

10. Provided a Tribal summary impact statement in a separately identified portion of the 

preamble to the regulation as it is to be issued in the FR, which consists of a description of 

the extent of the Division's prior consultation with Tribal officials, a summary of the nature 

of their concerns and the Division's position supporting the need to issue the regulation, 

and a statement of the extent to which the concerns of Tribal officials have been met; and 

11. Made available to the Secretary any written communications submitted to the Division by 

Tribal officials. 

D. On issues relating to Tribal self-governance, Tribal self-determination, Tribal trust resources, 

or Tribal treaty and other rights, each Division shall make all practicable attempts where 

appropriate to use consensual mechanisms for developing regulations, including negotiated 

rulemaking. 

5. PHILOSOPHY 

Indian Tribes have an inalienable and inherent right to self-government. Self-government means 

government in which decisions are made by the people who are most directly affected by the 

decisions. As sovereign nations, Indian Tribes exercise inherent sovereign powers over their 

members, territory and lands. 

HHS has a long-standing commitment to working on a government-to-government basis with 

Indian Tribes and to work in partnership with AI/ANs. Also, HHS is committed to enhancing the 

collaboration among its Divisions to address Tribal issues and promoting the principle that each 

Division bears responsibility for addressing Tribal issues within the context of their mission.

IGA is identified as the responsible HHS entity, located in the Immediate Office of the Secretary 

(IOS) for monitoring compliance with EO 13175 and the Department Tribal Consultation Policy. 

In addition, the Secretary has charged the Intradepartmental Council on Native American Affairs 

(ICNAA) to meet regularly and no less then 2 times a year and to provide advice on all HHS 

policies that relate to Indian Tribes as well as instances where HHS activities relate to Native 

Americans. Regional consultation sessions have been developed as a systematic method to 

regularly consult with Indian Tribes on HHS programs at field locations. The goal of these efforts 

is to focus HHS on Tribal issues, to continue to enhance the government-to-government 

relationship between Indian Tribes and the U.S., as well as to make resources of HHS more 

readily available to Indian Tribes. 

6. OBJECTIVES 

0. To formalize the Administration’s policy that HHS seek consultation and the participation of 

Indian Tribes in the development of policies and program activities that impact Indian 

Tribes. 

1. To establish a minimum set of requirements and expectations with respect to consultation 

and participation throughout HHS management, the Office of the Secretary (OS) Division, 

and Regional levels. 

2. The need to consult may be identified by the Department or by an Indian Tribe(s). Any 

time the Tribe(s) or the Department identifies a critical event the Department may initiate 

any necessary consultation in accordance with this policy. 

3. To identify events and partnerships that HHS would participate with Indian Tribe(s) and 

Tribal/Indian Organizations that establish and foster partnerships with HHS which 

complement and enhance consultation with Indian Tribes. 

4. To promote and develop innovative consultation methods with Indian Tribes in the 

development of HHS policy and regulatory processes. 

5. To uphold the responsibility of HHS to consult with Indian Tribes on new and existing 

health and human service policies, programs, functions, services and activities that have 

Tribal implications. 

6. To charge and hold accountable each of the HHS Operating Division Heads for the 

implementation of this policy. 

7. To be responsive to requests by an Indian Tribe(s) request for consultation and technical 

assistance in obtaining HHS resources. 

8. To charge the HHS Operating Divisions with the responsibility for enhancing partnerships 

with Indian Tribes which will include, requests for technical assistance, access to programs 

and resources, as well as collaborating with Tribal subject matter expertise. 

9. To provide a single point of contact within HHS and its Operating Divisions for Indian Tribes 

at the highest level which would have access to the IOS, the Deputy Secretary, and 

Operating Division Heads. The Principal Advisor for Tribal Affairs and the Division Tribal 

points of contact will be responsible for compliance with this policy and ensuring 

timeframes identified in section 9 are met. 

7. CONSULTATION PARTICIPANTS AND ROLES 

0. Indian Tribes: The government-to-government relationship between the U.S. and 

Federally recognized Indian Tribes dictates that the principal focus for HHS consultation is 

Indian Tribes, individually or collectively. 

1. Indian Organizations: At times it is useful that the HHS communicate with Indian 

organizations to solicit Indian Tribe(s) advice and recommendations. The government does 

not participate in government-to-government consultations with these entities; rather 

these organizations represent the interest of Indian Tribes when authorized by those Tribes 

These organizations by the sheer nature of their business serve and advocate Indian Tribes 

issues and concerns that might be negatively affected if these organizations were excluded 

from the process.

2. Office of Intergovernmental Affairs (IGA): IGA is responsible for Department-wide 

implementation and monitoring of EO 13175 for HHS Tribal consultation. IGA serves as the 

Department’s point of contact in accessing department-wide information. The single point 

of contact within the IGA for Indian Tribes and other Tribal/Indian organizations, at a level 

with access to all HHS Divisions, is the Principal Advisor for Tribal Affairs. As a part of the 

IOS, IGA’s mission is to facilitate communication regarding HHS initiatives as they relate to 

Tribal, State, and local governments. IGA is the Departmental liaison to States and Indian 

Tribes, and serves the dual role of representing the States and Tribal perspective in the 

Federal policymaking process, as well as, clarifying the Federal perspective to States and 

Indian Tribes, including Tribal consultation. 

3. Assistant Secretary for Finance and Resources (ASFR): ASFR is the lead office for 

budget consultation for the overall departmental budget request. 

4. HHS Divisions: The Department has numerous Staff Divisions and Operating Divisions 

under its purview. Each of the these Divisions share in the Department-wide responsibility 

to coordinate, communicate and consult with Indian Tribes on issues that affect these 

governments. All Operating Divisions shall establish a Tribal consultation policy to comply 

with the HHS Policy. All Divisions are responsible for conducting Tribal consultation to the 

extent practicable and permitted by law on policies that have Tribal implications. 

5. Intradepartmental Council on Native American Affairs(ICNAA): The ICNAA is 

charged with: (1) develop and promote an HHS policy to provide greater access and 

quality services for AI/AN/NAs throughout the Department; (2) promote implementation of 

HHS policy and Division plans on consultation with Indian Tribes in accordance with 

statutes and EOs; (3) promote an effective, meaningful AI/AN/NA policy to improve health 

and human services for AI/AN/NAs; (4) develop a comprehensive Departmental strategy 

that promotes self-sufficiency and self-determination for all Indian Tribes and AI/AN/NA 

people; (5) promote the Tribal/Federal Government-to-government relationship on an 

HHS-wide basis in accordance with EO 13175; and (6) operate in accordance with policy 

and timeframes identified within ICNAA charter and as directed by the Secretary and the 

ICNAA Executive Leadership. 

6. Regional Offices: The ten (10) HHS Regional Offices share in the Department-wide 

responsibility to consult, coordinate and communicate with Indian Tribes on issues that 

affect Indian Tribes and HHS programs, services and resources available to Indian Tribes 

through States. The Regional Directors are the Secretary’s immediate representatives in 

the field for the HHS. Each of the Regional Office(s) shall conduct an annual regional Tribal 

consultation meeting with Indian Tribes in their respective regions. Additional meetings 

may be conducted if requested by the Regional Director or an Indian Tribe(s) within the 

Region. Further, the Regional Directors will work closely with the respective Indian Tribes 

and State Governments to assure continuous coordination and communication between 

Tribes and States. The Regional Office Directors will promote and comply with this policy 

and its timeframes identified in Section 9. 

8. TRIBAL CONSULTATION PROCESS 

An effective consultation between HHS and Indian Tribes requires trust between all parties which 

is an indispensable element in establishing a good consultative relationship. The degree and 

extent of consultation will depend on the identified critical event. A critical event may be 

identified by HHS and/or an Indian Tribe(s). Upon identification of an event significantly affecting 

one or more Indian Tribe(s), HHS will initiate consultation regarding the event. In order to 

initiate and conduct consultation, the following serves as a guideline to be utilized by HHS and 

Indian Tribes: 

0. Identify the Critical Event: Complexity, implications, time constraints, and issue(s) 

(including policy, funding/budget development, programs, services, functions and 

activities).

1. Identify affected/potentially affected Indian Tribe(s) 

2. Determine Consultation Mechanism – The most useful and appropriate consultation 

mechanisms can be determined by HHS and/or Indian Tribe(s) after considering the critical 

event and Indian Tribe(s) affected/potentially affected. Consultation mechanisms include 

but are not limited to one or more of the following: 

a. Mailings 

b. Teleconference 

c. Face-to-Face Meetings at the Local, Regional and National levels between the HHS 

and Indian Tribes. 

d. Roundtables 

e. Annual HHS Tribal Budget and Policy Consultation Sessions. 

f. Other regular or special HHS Division or program level consultation sessions. 

A. Communication Methods: The determination of the critical event and the level of consultation 

mechanism to be used shall be communicated to affected/potentially affected Indian Tribe(s) 

using all appropriate methods and with as much advance notice as practicable. These methods 

include but are not limited to the following: 

3. Correspondence: Written communications shall be issued within 30 calendar days of an 

identified critical event. The communication should clearly provide affected/potentially 

affected Indian Tribe(s) with detail of the critical event, the manner and timeframe in 

which to provide comment. The HHS frequently uses a “Dear Tribal Leader Letter” (DTLL) 

format to notify individual Indian Tribes of consultation activities. Divisions should work 

closely with the Principal Advisor for Tribal Affairs, IOS/IGA if technical assistance is 

required for proper format and protocols, current mailing lists, and content. 

4. Official Notification: Within 30 calendar days, and upon the determination the consultation 

mechanism, proper notice of the critical event and the consultation mechanism utilized 

shall be communicated to affected/potentially affected Indian Tribe(s) using all appropriate 

methods including mailing, broadcast e-mail, FR, and other outlets. The FR is the most 

formal HHS form of notice used for consultation. 

5. Meeting(s): The Division shall convene a meeting, within 60 calendar days of official 

notification, with affected/potentially affected Indian Tribe(s) to discuss all pertinent issues 

in a national, regional, and/or local forum, or as appropriate, to the extent practicable and 

permitted by law, when the critical event is determined to have substantial impact. 

6. Receipt of Tribal Comment(s): The Division shall develop and use all appropriate methods 

to communicate clear and explicit instructions on the means and time frames for Indian 

Tribe(s) to submit comments on the critical event, whether in person, by teleconference, 

and/or in writing and shall solicit the advice and assistance of the Principal Advisor for 

Tribal Affairs, IOS/IGA. 

7. Reporting of Outcome: The Division shall report on the outcomes of the consultation within 

90 calendar days of final consultation. For ongoing issues identified during the consultation, 

the Division shall provide status reports throughout the year to IOS/IGA and Indian 

Tribe(s). 

A. HHS Response to Official Tribal Correspondence: Official correspondence from an Indian Tribe 

may come in various forms, but a resolution is the most formal declaration of an Indian Tribe’s 

position for the purpose of Tribal consultation. In some instances, Indian Tribes will submit 

official correspondence from the highest elected and/or appointed official(s) of the Tribe. HHS

will give equal consideration to these types of correspondence. Once HHS receives an official 

Indian Tribe correspondence and/or resolution, the Secretary/Deputy Secretary and/or their 

designee should respond appropriately. The process for official correspondence to Indian Tribes 

is described below: 

8. Correspondence submitted by Indian Tribes to HHS shall be officially entered into HHS 

correspondence control tracking system and referred to the appropriate Division(s). 

9. Acknowledgement of Correspondence: HHS and/or Divisions shall provide 

acknowledgement to Indian Tribes within 15 working days of receipt. 

10. Official Response to an identified critical event: HHS shall provide an official response to 

Indian Tribes that includes: the Division head responsible for follow up, the process for 

resolution of the critical event and timeline for resolution. 

a. If an identified critical event is national in scope the Department shall to the extent 

practicable respond to the request within 60 working days or less. 

b. If a critical event is specific to a single Indian Tribe the Department shall to the 

extent practicable respond to the request within 45 working days or less. 

B. Policy Development through Tribal Consultation Process: The need to consult on the 

development or revision of a policy may be identified from within HHS, an HHS Division or may 

be identified by Indian Tribes. This need may result from external forces such as Executive, 

Judicial, or Legislative Branch actions or otherwise. Once the need to consult on development or 

revision of a policy is identified the consultation process must begin in accordance with critical 

events and consultation mechanisms described above. HHS Divisions may request technical 

assistance from IGA for the Tribal consultation process. 

C. Schedule for Consultation: Divisions must establish and adhere to a formal schedule of 

meetings to consult with Indian Tribes and their representatives concerning the planning, 

conduct, and administration of applicable activities. Divisions must involve Tribal representatives 

in meetings at every practicable opportunity. Divisions are encouraged to establish additional 

forums for Tribal consultation and participation, and for information sharing with Tribal 

leadership. Consultation schedules should be coordinated with IGA to avoid duplications or 

conflicts with other national Tribal events. HHS Divisions should make every effort to schedule 

their consultations in conjunction with the Annual Regional Tribal Consultation Sessions. 

9. CONSULTATION PROCEDURES AND RESPONSIBLITIES 

. Consultation Parties and Mechanisms- Consultation Occurs: 

1. When the HHS Secretary/Deputy Secretary, or their designee, meets and/or 

exchanges written correspondence with a Tribal 

President/Chair/Governor/Chief/Principal Chief and/or elected/appointed Indian Tribal 

Leader, or their designee to discuss issues concerning either party. 

2. When an HHS Division Head, or their designee, meets or exchanges written 

correspondence with an Indian Tribal representative designated by an 

elected/appointed Tribal leader to discuss issues or concerns of either party. 

3. When an HHS Regional Director, who is the Secretary’s representative in the field, 

meets or exchanges written correspondence with an elected/appointed Indian Tribal 

Leader, or their designee to discuss issues or concerns of either party. 

4. When the Secretary/Deputy Secretary/HHS Division Head, or their designee, meets 

or exchanges written correspondence with a Tribal representative designated by an 

elected/appointed Indian Tribal leader to discuss issues or concern of either party. 

A. Consultation Procedures 

0. Tribal: Specific consultation mechanisms that will be used to consult with an Indian 

Tribe(s) include but are not limited to mailings, meetings, teleconference and 

roundtables.

a. An Indian Tribe(s) has the ability to initiate consultation, i.e. meet one-on-one 

with an HHS Division Head or designated representative to consult on issues 

specific to that Indian Tribe. 

b. HHS Division Heads will initiate consultation to solicit official Indian Tribe(s)’ 

comments and recommendations on policy and budget matters affecting Indian 

Tribe(s). These sessions at roundtables, forums and meetings will provide the 

opportunity for meaningful dialogue and effective participation by Indian 

Tribe(s). 

c. National/Regional Inter-Tribal Forums: Other types of meetings and/or 

conferences occur which may not be considered consultation sessions, but these 

meetings may provide opportunities to share information, conduct workshops, 

and provide technical assistance to Indian Tribes. 

1. HHS: Consultation mechanisms that will be used to consult with Indian Tribe(s) 

include but are not limited to mailings, meetings, teleconferences and roundtables. 

HHS has various organizational avenues in which Tribal issues and concerns are 

addressed. These avenues include the OS, the ICNAA, Regional Offices, and 

Divisions. 

1. 

2. Office of the Secretary 

a. The HHS National Tribal Consultation Sessions are designed to solicit 

Indian Tribes’ health and human services priorities and program needs. 

The Sessions provide an opportunity for Indian Tribes to articulate their 

recommendations on budgets, regulations, policies and legislation. 

i. Upon completion of consultation, HHS will document and notify 

Indian Tribes on the proceedings, noting positions and following-up 

on all issues raised that would benefit from ongoing consultation 

with Indian Tribe(s) within 90 calendar days. 

3. ICNAA 

a. The ICNAA represents the internal HHS team providing consistent 

direction across the Divisions for AI/AN/NA issues. One of the primary 

responsibilities of ICNAA is to solicit Tribal input in establishing Tribal 

policy and budget priorities and recommendations for Divisions. 

The health and human service priorities established by Indian Tribes are 

used to inform the development of the Divisions’ annual performance 

goals and measures for improving health and human services, which are 

linked to their budget requests. 

4. Regional Offices 

a. Regional Offices will work with the Indian Tribes and Indian organizations 

within their respective regional area in facilitating the Tribal perspective 

with HHS programs, services, functions, activities and planning Tribal 

regional consultation sessions. HHS Divisions have various geographic 

coverage, however all HHS Divisions, regardless of geographic location, 

are intended to serve Indian Tribe(s) in their respective locations. 

b. Regional Offices/Directors will work collaboratively with the HHS Division 

lead regional representative in communicating and coordinating on issues 

and concerns of Indian Tribes in those respective regions or areas. 

c. Regional Offices/Directors will work collaboratively to facilitate Tribal-State 

relations as they affect Indian Tribes in the delivery of HHS programs and 

services. 

d. Regional Tribal Consultation Sessions are held to solicit Indian Tribe(s)’ 

priorities and needs on health and human services. The sessions also

provide Indian Tribes with a regional perspective and shall be held, at 

least but not limited to, annually with status reports to Indian Tribe(s) as 

appropriate throughout the year, or at least biannually. 

1. Regional Consultations will occur between February and April of 

every year. 

2. Regional Consultations shall be utilized as a venue for Divisions to 

coordinate their consultation responsibilities in a manner that is 

feasible and convenient for Indian Tribes. 

3. Regional Offices/Directors will contact Indian Tribes and Indian 

Organizations in their respective regions to assist in the planning of 

the session. This will ensure inclusion of all perspectives and issues 

for the session. 

4. Protocol will ensure that the highest ranking official present from 

each respective Indian Tribe is given the opportunity to address the 

session first, followed by other elected officials, those designated by 

official letter to represent their respective Indian Tribe and 

representatives of Indian Organizations. 

a. Official letter from the Indian Tribe designating a 

representative must be presented to Regional Director before 

the session begins. 

5. Regional Offices/Directors will seek the assistance of Tribal Leaders 

to assist with moderating the annual regional consultation session. 

6. The official record of every regional session will be left open for 30 

calendar days after the conclusion of the session for submission of 

additional comments/materials from Indian Tribe(s) 

7. Regional Offices/Directors will provide a summary no later than 45 

calendar days after the consultation of the session. 

5. HHS Divisions 

a. Divisions will work collaboratively with the Indian Tribes on the 

development of consultation meetings, one-on-one meetings, roundtables, 

teleconferences and annual sessions. 

b. Divisions will work collaboratively with Indian Tribes on developing and 

implementing their respective Tribal Consultation Policy or Plan. 

c. Divisions will coordinate with IGA on their respective consultation 

activities in order to ensure that HHS and its Divisions are conducting 

Tribal consultation coordinating in a manner that is feasible and conducive 

to the needs of Indian Tribes. 

d. Divisions will participate in both the Annual Tribal Budget and Policy 

Consultation Session and Annual Regional Tribal Consultations with Indian 

Tribes. 

e. Divisions will work collaboratively to facilitate Tribal-State relations as 

they affect Indian Tribes and AI/ANs in the delivery of HHS programs and 

services. 

2. States: In some instances the authority and program funding for HHS programs is 

administered by the States on behalf of Indian Tribes. The Divisions will consult with 

the Office of the General Counsel to determine whether these arrangements are 

based on statutes, regulations, or policy decisions. If there is no clear regulatory or

statutory basis mandating that States administer the program on behalf of the 

Tribe(s), the Division will consult with the affected Indian Tribe(s) as soon as 

practicable to review alternate options. 

If there is a statutory basis mandating that the State administer the program and 

associated funding on behalf of the Indian Tribe(s) the Division will examine the 

permissibility of encouraging or mandating a term requiring tribal consultation as a 

condition of the State’s receipt of program funds. If such a term may be mandated 

regarding State administered programs affecting Indian Tribes it should be 

incorporated. If it is not permissible, the Division shall facilitate consultation between 

the State and affected Tribe(s). 

In addition, whenever practicable and permitted by law, the Division shall notify 

Indian Tribes of funds administered by the State that the Division believes should be 

allocated to Indian Tribes. 

The Division shall also encourage the State to recognize that Indian Tribal members 

are entitled to benefits provided to all State citizens and should be provided the same 

access to State administered or funded services since Tribal members are citizens of 

the State(s). To the extent possible, data shall be collected and reported about the 

number of Tribal members served by the State with federal resources. 

10. ESTABLISHMENT OF JOINT TRIBAL/FEDERAL WORKGROUPS AND/OR TASKFORCES 

The need to develop or revise a policy may be identified from within the Division or by an Indian 

Tribe(s). When new or revised national policy, regulations or legislation affects an Indian 

Tribe(s), an Indian Tribe(s) or HHS may recommend the establishment of a workgroup and/or 

task force. In response, HHS may establish such a workgroup and/or task force to develop 

recommendations on various technical, legal, regulatory, or policy issues. In such cases, see 

ADDENDUM 1 which outlines the process for establishing such aforementioned workgroups 

and/or task forces. 

11. HHS BUDGET FORMULATION 

HHS shall consult with Indian Tribes throughout the development of the HHS Budget formulation 

process to the greatest extent practicable and permitted by law. The Secretary shall require the 

Divisions to include a process in their Tribal Consultation Policy/Plan that assures Tribal priorities 

and needs and requests are identified and considered in the formulation of the HHS budget. 

. HHS Annual Tribal Budget and Policy Consultation Session (ATBPCS): A 

Department-wide Tribal budget and policy consultation session will be conducted annually 

to give Indian Tribes the opportunity to present their budget and policy priorities and 

recommendations to the Department as HHS prepares to receive the budget requests of its 

Divisions. The session is convened in March of each year as a means for final input in the 

development of the Department’s budget submission to OMB. 

0. At a minimum, HHS conducts annually one ATBPCS to ensure the active participation 

of Indian Tribes in the formulation of the HHS performance budget request as it 

pertains to Indian Tribes, which will be held at the HHS Headquarters in Washington, 

DC no later than March each year. 

1. HHS will notify Tribes of the date of the consultation no later than 90 days prior to 

the session. 

2. The session will not exceed two days. 

3. Each Operating Division Head/Deputy and budget officer will attend their agency’s 

appropriate session(s).

4. Each Operating Division Head/Deputy will participate in other portions of the ATBPCS 

that affect their respective division. 

5. IGA/ASFR will provide a summary of the session to Indian Tribes no later than 30 

calendar days after the session has concluded. 

6. Within 90 calendar days IGA shall post the transcript of the ATBPCS with a summary 

of the Indian Tribes’ issues/concerns presented at the session. 

7. HHS will seek the assistance of Indian Tribal Leaders to assist with moderating the 

ATBPCS. HHS will also contact Indian Organizations in the planning of the session in 

order to ensure inclusion of all perspectives and issues. 

8. Presentation protocol will ensure that the highest ranking official from each 

respective Tribe is given the opportunity to address the session first, followed by 

other elected officials, those designated by their elected official to represent their 

respective Indian Tribes and representatives of Indian/Tribal Organizations. 

. Official letter from the Indian Tribe designating a representative must be 

presented to IGA before the session begins. 

A. Performance Budget Formulation: HHS IGA will ensure the active participation of 

Indian Tribes and Indian Organizations in the formulation and throughout the HHS 

performance budget request as it pertains to Indian Tribes to the greatest extent 

practicable and permitted by law. 

B. Budget Information Disclosure: HHS provides Indian Tribes the HHS budget related 

information on an annual basis: appropriations, allocation, expenditures, and funding levels 

for programs, services, functions, and activities. 

12. TRIBAL CONSULTATION PERFORMANCE AND ACCOUNTABILITY 

HHS and its Divisions will measure and report results and outcomes of their Tribal consultation 

performance to fulfill the government-to-government relationship with Indian Tribes. 

Parts of the HHS mission and performance objectives are designed to address the health and 

well-being of AI/ANs by providing for effective health and human services and by fostering 

strong, sustained advances in the sciences underlying medicine, public health and social 

services. 

The Divisions shall utilize the Tribal Consultation Policy to address HHS’s mission and 

performance objectives with respect to AI/ANs. HHS and its Divisions will follow the goals and 

objectives of the seated Secretary and Administration. 

Divisions and Indian Tribes will also promote a collaborative atmosphere to gather, share, and 

collect data and other information to demonstrate the effective use of Federal resources in a 

manner that is consistent with OMB performance measures and requirements. Divisions shall 

consult, to the greatest extent practicable and permitted by law, with Indian Tribes before taking 

actions that substantially affect Indian Tribes, including regulatory practices on Federal matters 

and unfunded mandates. 

13. EVALUATION, RECORDING OF MEETINGS AND REPORTING 

The consultation process and activities conducted within the policy should result in a meaningful 

outcome for the Department and for the affected Indian Tribes. To effectively evaluate the 

results of a particular consultation activity and the Department’s ability to incorporate Indian 

Tribes’ consultation input, the Department should measure, on an annual basis, the level of 

satisfaction of the Indian Tribes.

0. Divisions should develop and utilize appropriate evaluation measures to assess Indian 

Tribes’ responses to Department consultation conducted during a specific period to 

determine if the intended purpose of the consultation was achieved and to receive 

recommendations to improve the consultation process. 

. The Divisions will maintain a record of the consultation, evaluate whether the 

intended results were achieved, and report back to the affected Indian tribe(s) on the 

status or outcome, including, but not limited to, the annual sessions conducted 

below. 

1. At a minimum, HHS Regional Directors will conduct an Annual Regional Tribal Consultation 

to consult with Indian Tribes. 

. These sessions shall provide an opportunity to receive the Indian Tribe’s priorities for 

budget, regulation, legislation, and other policy matters. 

a. Consultation Sessions shall include evaluation components for receipt of verbal and 

written comments from participating Indian Tribes, HHS Divisions, and other invited 

participants to obtain immediate feedback on the consultation process for the session 

conducted. 

b. The Divisions and the Regional Directors will report at each regional Tribal 

consultation session regarding what substantive and procedural actions were taken as 

a result of the previous Tribal consultation session and describe how HHS addressed 

the consultation evaluation comments provided received by participants. 

c. All national and regional consultation meetings and recommended actions shall be 

formally recorded and made available to Indian Tribes. 

d. Once the consultation process is complete, and any policy decision is finalized, all 

recommended follow-up actions adopted shall be implemented and tracked by the 

appropriate Regions and/or Divisions and reported to the Indian Tribes in the IGA 

Annual Tribal Consultation Report. 

e. Unless otherwise specified, the IGA Annual Consultation Report shall provide an 

annual reporting mechanism for this purpose and all HHS Divisions are required to 

participate in providing information for this report. 

2. IGA will seek Tribal feedback to assist in measuring and evaluating the implementation and 

effectiveness of this Policy. IGA will assess the Department Tribal Consultation Policy on an 

ongoing basis and utilize comments from Indian Tribes and Federal participants to 

determine whether amendment to the Policy may be required. If amendment is needed, 

IGA will convene a Tribal-Federal workgroup. 

3. Divisions are required to submit to IGA their fiscal year Tribal consultation information 

within 90 calendar days from the end of the fiscal year. IGA shall compile the Division 

submissions, and publish and distribute the information to the Indian Tribes within 60 

calendar days from receipt of the Division reports. The IGA, Regional Directors and 

Divisions shall also report the Department’s views on the level of attendance and response 

from Tribal leaders during the Annual Tribal Budget and Policy Consultation Session and 

the Annual Regional Tribal Consultation Sessions, including evaluative comments, and 

provide advice and recommendations regarding the Tribal consultation process. The IGA 

shall post on the HHS website, the IGA Annual Tribal Consultation Report, including the 

evaluation results. 

14. CONFLICT RESOLUTION 

The intent of this policy is to promote partnership with Indian Tribes that enhance the

Department’s ability to address issues, needs and problem resolution. Agencies shall consult with 

Indian Tribes to establish a clearly defined conflict resolution process under which Indian Tribes 

bring forward concerns which have a substantial direct effect. However, Indian Tribes and HHS 

may not always agree and inherent in the government-to-government relationship, Indian Tribes 

may elevate an issue of importance to a higher or separate decision-making authority. 

Nothing in the Policy creates a right of action against the Department for failure to comply with 

this Policy. 

15. TRIBAL WAIVER 

Divisions shall review and streamline the processes under which Indian Tribe may apply for 

waivers of statutory, regulatory, policy, or procedural requirements. Each Division shall, to the 

extent practicable and permitted by law, consider any application by an Indian Tribe for a waiver 

with a general view toward increasing opportunities for utilizing flexible approaches at the Indian 

Tribal level when the proposed waiver is consistent with the applicable Federal policy objectives 

and is otherwise appropriate. Each Division shall, to the extent practicable and permitted by law, 

render a decision upon a complete application for a waiver within 120 calendar days of receipt, 

or as otherwise provided by law or regulation. If the application for waiver is not granted, the 

Division shall provide the applicant with timely written notice of the decision and the reasons 

therefore. Waiver requests for statutory or regulatory requirements apply only to statutory or 

regulatory requirements that are discretionary and subject to waiver by the Division. 

16. EFFECTIVE DATE 

This policy is effective on the date of the signature by the Secretary of Health and Human 

Services. 

This policy replaces the Tribal Consultation Policy signed on February 1, 2008, and it applies to 

all Operating Divisions and Staff Divisions. Operating Divisions shall complete necessary 

revisions to their existing Division consultation policy/plan to conform to the revised Department 

Tribal Consultation Policy. Operating Divisions without a consultation policy shall utilize the 

guidance of the OS policy until the development of their respective policy. 

17. DEFINITIONS 

0. Agency – Any authority of the United States that is an “agency” under 44 USC 3502(1) 

other than those considered to be independent regulatory agencies, as defined in 44 USC 

3502 (5). 

1. Communication – The exchange of ideas, messages, or information, by speech, signals, 

writing, or other means. 

2. Consultation – An enhanced form of communication, which emphasizes trust, respect and 

shared responsibility. It is an open and free exchange of information and opinion among 

parties, which leads to mutual understanding and comprehension. Consultation is integral 

to a deliberative process, which results in effective collaboration and informed decision 

making with the ultimate goal of reaching consensus on issues. 

3. Coordination and Collaboration – Working and communicating together in a meaningful 

government-to-government effort to create a positive outcome. 

4. Critical Events – Planned or an unplanned event that has or may have a substantial 

impact on Indian Tribe(s), e.g., issues, polices, or budgets which may come from any level 

within HHS.

5. Deliberative Process Privilege – Is a privilege exempting the government from 

disclosure of government agency materials containing opinions, recommendations, and 

other communications that are part of the decision-making process within the agency. 

6. Executive Order – An order issued by the Government’s executive on the basis of 

authority specifically granted to the executive branch (as by the U.S. Constitution or a 

Congressional Act). 

7. Federally Recognized Tribal governments – Indian Tribes with whom the Federal 

Government maintains an official government-to-government relationship; usually 

established by a Federal treaty, statute, executive order, court order, or a Federal 

Administrative Action. The Bureau of Indian Affairs (BIA) maintains and regularly publishes 

the list of Federally recognized Indian Tribes. 

8. HHS Tribal Liaisons – HHS staff designated by the head of an HHS Division that are 

knowledgeable about the Division’s programs and budgets, and have ready access to 

senior HHS Division leadership, and are empowered to speak on behalf of that Division for 

AI/AN/NA programs, services, issues, and concerns. 

9. Indian – Indian means a person who is a member of an Indian tribe as defined in 25 

U.S.C. 479a. Throughout this policy, Indian is synonymous with American Indian/Alaska 

Native. 

10. Indian Organizations: 1). Those Federally recognized tribally constituted entities that 

have been designated by their governing body to facilitate DHHS communications and 

consultation activities. 2). Any regional or national organizations whose board is comprised 

of Federally recognized Tribes and elected/appointed Tribal leaders. The government does 

not participate in government-to-government consultation with these entities; rather these 

organizations represent the interests of Tribes when authorized by those Tribes. 

11. Indian Tribe – an Indian or Alaska Native tribe, band, nation, pueblo, village, or 

community that the Secretary of the Interior acknowledges to exist as an Indian tribe 

pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.” 

12. Intradepartmental Council on Native American Affairs (ICNAA) – Authorized by the 

Native American Programs Act of 1974 (NAPA), as amended. The ICNAA serves primarily to 

perform functions and develop recommendations for short, intermediate, or long-term 

solutions to improve AI/AN/NA policies and programs as well as provide recommendations 

on how HHS should be organized to administer services to the AI/AN/NA population. 

13. Joint Tribal/Federal Workgroups and or/Task Forces – A group composed of 

individuals who are elected Tribal officials, appointed by Federally recognized Tribal 

governments and/or Federal agencies to represent their interests while working on a 

particular policy, practice, issue and/or concern. 

14. Native American (NA) – Broadly describes the people considered indigenous to North 

America. 

15. Policies with Tribal Implications – Refers to regulations, statutes, legislation, and other 

policy statements or actions that have substantial direct effects on one or more Indian 

Tribes, on the relationship between the Federal Government and Indian Tribes, or on the 

distribution of power and responsibilities between the Federal Government and Indian 

Tribes. 

16. Self Government – Government in which the people who are most directly affected by 

the decisions make decisions.

17. Sovereignty – The ultimate source of political power from which all specific political 

powers are derived. 

18. Substantial Direct Compliance Costs – Those costs incurred directly from 

implementation of changes necessary to meet the requirements of a Federal regulation. 

Because of the large variation in Tribes, “substantial costs” is also variable by Indian Tribe. 

Each Indian Tribe and the Secretary shall mutually determine the level of costs that 

represent “substantial costs” in the context of the Indian Tribe’s resource base. 

19. To the Extent Practicable and Permitted by Law – Refers to situations where the 

opportunity for consultation is limited because of constraints of time, budget, legal 

authority, etc. 

20. Treaty – A legally binding and written agreement that affirms the government-togovernment 

relationship between two or more nations. 

21. Tribal Government – An American Indian or Alaska Native Tribe, Band, Nation, Pueblo, 

Village or Community that the Secretary of the Interior acknowledges to exist as an Indian 

Tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 USC 479a. 

22. Tribal Officials – Elected or duly appointed officials of Indian Tribes or authorized inter- 

Tribal organizations. 

23. Tribal Organization – The recognized governing body of any Indian tribe; any legally 

established organization of Indians which is controlled, sanctioned, or chartered by such 

governing body or which is democratically elected by the adult members of the Indian 

community to be served by such organization and which includes the maximum 

participation of Indians in all phases of its activities: Provided, That in any case where a 

contract is let or grant made to an organization to perform services benefiting more than 

one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the 

letting or making of such contract or grant. 

24. Tribal Resolution – A formal expression of the opinion or will of an official Tribal 

governing body which is adopted by vote of the Tribal governing body. 

25. Tribal Self–Governance – The governmental actions of Tribes exercising self-government 

and self-determination. 

18. ACRONYMS 

AI/AN: American Indian/Alaska Native 

AI/AN/NA: American Indian/Alaska Native/Native American 

ASFR: Assistant Secretary for Finance and Resources 

BIA: Bureau of Indian Affairs 

Division: Staff Division and/or Operating Division 

EO: Executive Order 

FACA: Federal Advisory Committee Act 

FR: Federal Register 

HHS: U.S. Department of Health and Human Services 

ICNAA: Intradepartmental Council on Native American Affairs 

IGA: Office of Intergovernmental Affairs 

IOS: Immediate Office of the Secretary 

NPRM: Notice of Proposed Rule Making 

OMB: Office of Management and Budget 

OS: Office of the Secretary 

U.S.: United States 

U.S.C.: United States Code

S/ Kathleen Sebelius December 14, 2010 

_____________________________________________ ___________________ 

__ 

Kathleen Sebelius Date 

Secretary 

U.S. Department of Health and Human Services 

ADDENDUM 1 

1. Establishing Joint Tribal/Federal Workgroups and/or Tasks Forces: 

Although the special “Tribal-Federal” relationship is based in part on the government-togovernment 

relationship it is frequently necessary for HHS to establish Joint Tribal/Federal 

Workgroups and/or Task Forces to complete work needed to develop new policies, practices, 

issues, and/or concerns and/or modify existing policies, practices, issues, and/or concerns. 

These Joint Tribal/Federal Workgroups and/or Task Forces do not take the place of Tribal 

consultation, but offer an enhancement by gathering individuals with extensive knowledge of a 

particular policy, practice, issue and/or concern to work collaboratively and offer 

recommendations for consideration by Federally recognized Indian Tribes and Federal agencies. 

The subsequent work products and/or outcomes developed by the Joint Tribal/Federal 

Workgroup and/or Task Forces will be handled in accordance with this policy. These Workgroups 

will be Federal Advisory Committee Act (FACA) compliant unless exempt. 

1. Meeting Notices: The purpose, preliminary charge, time frame, and other specific tasks 

shall be clearly identified in the notice. All meetings should be open and widely publicized 

ideally through IGA or the Division initiating the policy. 

2. Workgroups: membership should be selected based on the responses received from 

prospective HHS Regions/Indian Health Service Areas as a result of the notice, and if 

possible, should represent a cross-section of affected parties. HHS staff may serve in a 

technical advisory capacity. 

A. Participation: 

1. Membership Notices: HHS shall seek nominations from Indian Tribes to participate in 

taskforces and/or workgroups. The Secretary shall select workgroup members that 

represent various regions and/or views of Indian Country. Membership of these 

workgroups shall be in compliance with FACA unless the workgroup is exempt 

2. Appointment of Alternates: Each primary representative may appoint an alternate by 

written notification. In cases where an elected Tribal Leader (primary representative) 

appoints an alternate who is not an elected official, and the primary member can not 

attend a workgroup meeting, the alternate is permitted to represent the primary member 

and will have the same voting rights as the primary member. 

3. Attendance at Meetings: Workgroup members must make a good faith effort to attend all 

meetings. Other individuals may accompany workgroup members, as that member 

believes is appropriate to represent his/her interest, however FACA requirements will be 

adhered to at meetings unless exempt 

B. Workgroup Protocols: The workgroup may establish protocols to govern the meetings. Such 

protocols will include, but are not limited to the following:

1. Selection of workgroup co-chairs, if applicable 

2. Role of workgroup members 

3. Process for decision-making (consensus based or otherwise) 

4. Developing a Workgroup Charge. Prior to the workgroup formulation, the HHS will develop 

an initial workgroup charge in enough detail to define the policy concept. The workgroup 

may develop recommendations for the final workgroup charge for the approval of the HHS 

Secretary, the IGA Director or the Division head. 

C. Process for Workgroup Final Products: Once a final draft of the work product has been created 

by the workgroup the following process will be used to facilitate Tribal consultation on the draft 

work product: 

1. Upon completion, the draft documents will be distributed informally to Indian Tribes and 

Indian Organizations for review and comment and to allow for maximum possible informal 

review. 

2. Comments will be returned to the workgroup, which will meet in a timely manner to 

discuss the comments and determine the next course of action. 

3. At the point that the proposed draft policy is considered to be substantially complete as 

written, the workgroup will forward the draft document to the HHS Secretary as final 

recommendation for consideration. 

4. The workgroup will also recognize any contrary comment(s) in its final report and explain 

the reasoning for not accepting the comment(s). 

5. If it is determined that the policy should be rewritten, the workgroup will rewrite and begin 

informal consultation again at the initial step above. 

6. If the proposed policy is generally acceptable to the HHS Secretary, final processing of the 

policy by the workgroup will be accomplished. 

D. Recommendations and Policy Implementation: All final recommendations made by the 

workgroup should be presented to the Secretary. Before any final policy decisions are adopted 

within HHS, the proposed policy shall be widely publicized and circulated for review and 

comment to Indian Tribes, Indian Organizations, and within HHS. Once the consultation process 

is complete and a proposed policy is approved and issued, the final policy shall be broadly 

distributed to all Indian Tribes.

NORTHWEST 

PORTLAND 

AREA 

INDIAN 

HEALTH 

BOARD 

Burns-Paiute Tribe 

Chehalis Tribe 

Coeur d' Alene Tribe 

Colville Tribe 

Coos, Sui slaw & 

Lower Umpqua Tribe 

Coquille Tribe 

Cow Creek Tribe 

Cowl it? Tribe 

Gmnd Ronde Tribe 

Hoh Tribe 

Jamestown S'Klaliam Tribe 

Kalispcl Tribe 

Klamath Tribe 

Kootenai Tribe 

Lower Elwha Tribe 

Lummi Tribe 

Makah Tribe 

Muekleshoot Tribe 

Nez Perce Tribe 

Nisqually Tribe 

Nooksack Tribe 

NW Band of Shoshone Tribe 

Port Gamble S'Klallam Tribe 

Puyallup Tribe 

QuileuteTribe 

Quinault Tribe 

Sam ish Indian Nation 

Sauk-Suiattlc Tribe 

Shoalwater Bay Tribe 

Shoshone-Bannock Tribe 

Siletz Tribe 

Skokomish Tribe 

Snoqualmie Tribe 

Spokane Tribe 

Squaxin Island Tribe 

Stillaguamish Tribe 

Suquamish Tribe 

Swinomish Tribe 

Tulalip Tribe 

Umatilla Tribe 

Upper Skagit Tribe 

Wann Springs Tribe 

Yakama Nation 

2121 SW Broadway 

Suite 300 

Portland, OR 97201 

(503) 228-4185 

(503)228-8182 FAX 

www.npaihb.org 

SENT VIA EMAIL: Pam.Hyde@SAMHSA.hhs.gov; blockgrants@samhsa.hhs.gov 

September 21,2012 

Ms. Pamela S. Hyde, J.D. 

Administrator 

Substance Abuse and Mental Health Service Administration 

1 Choke Cherry Rd. 

Rockville, MD 20857 

REF: Comments - Agency Information Collection Activities: Proposed 

Collection; Comment Request for: Uniform Application for the Mental 

Health Block Grant and Substance Abuse Block Grant FY 2014-2015, 

Application Guidance and Instructions (OMB No. 0930-0168) 

Revision. 

Dear Ms. Hyde: 

The Northwest Portland Area Indian Health Board (NPAIHB) is a P.l. 93-638 Tribal 

organization 1 that represents forty-three federally-recognized Tribes in the states of 

Idaho, Oregon, and Washington. On behalf of our member Tribes, we are writing to 

provide comments for the Agency Information Collection Activities: Proposed Collection; 

Comment Request, published in the Federal Register, Vol. 77, No. 135, Friday, July 13, 

2012, notices. 

We understand the purpose of this notice is to comment on: information from reports 

will have a practical utility; have accuracy of the agency's estimate of the burden of the 

proposed collection of information; ways to enhance the quality, utility, and clarity of 

the information to be collected; and ways to minimize the burden of the collection 

techniques or other forms of information technology. 

Before providing comment it is important for us to underscore our deep concern that 

there is no mention of Tribal governments in the entire document. We note a "casual" 

citation near the end of page 41434 and the reference to Native Americans on page 

41435. The document overlooks the preferred reference and legislative term "American 

Indians and Alaska Native (AI/AN)" and we urge SAMHSA to use the preferred term in 

future publications. We are concerned that past comments we provided and issues 

discussed at the SAMHSA Tribal Advisory Committee meetings are not adequately 

addressed. These issues have also been raised in SAMHSA Tribal consultation sessions. 

J As defined in the Indian Self-Determination and Education Assistance Act. P.L. 93-638. 25 U.S.C .• Section 

45O(b) a Tribal organization is a legally established governing body of any Indian tribe(s) that is controlled. 

sanctioned. or chartered by such Indian Tribe(s) and designated to act on their behalf.

It is unclear if this was just an oversight or a lack of understanding of the government to government 

requirement. The proposed application requirements will have a direct impact of the ability of SAMHSA 

to further its mission and services for Tribal communities. 

Please note the following comments from a submission dated June 6, 2011 per SAMHSA's request. 

Where these comment disregarded? We did not receive any feedback from the comments. These 

comments were directed toward the information provided in the Federal Register, Vol. 76, No. 69, 

Monday, April 11, 2011: 

In regards to States following a four-step planning process conSisting of: (1) Assessing the 

strengths and needs of the service system; (2) identifying the unmet service needs and 

critical gaps within the current system; (3) prioritize the State planning activities, and; (4) 

develop goals, strategies and performance indicators, there will be unintended 

consequences for Tribal population unless: 

1. Tribes are consulted to address the strengths and needs of the population they serve. It 

would be impossible for a State to provide a comprehensive assessment of strengths 

and needs of the service system without the assistance of Tribes in their respective 

States. 

Additionally, non-Medicaid encounter data from Tribal systems is often reported 

directly to the Federal government, (via Indian Health Service), and is not included in 

State databases. Furthermore, Tribal populations often do not access State services due 

to historical discrimination and mistreatment, resulting in an unrealized "silent need". 

2. The unmet service needs are difficult to identify. States have various methods for 

gathering data, as do the 565 Federally Recognized Tribes. Currently, most policy for 

service provision is driven from encounter data. This results in a fatal flaw - no valid 

method to determine unmet service needs when there is no access or limited access to 

behavioral health services. As noted in numerous publications, including the Report on 

State Responses to the FY 2011 Block Grant Addendum on Health Care Reform, there is a 

current shortage of behavioral health professionals. This shortage is projected to 

amplify with the surge caused by the implementation of the Affordable Care Act, thus 

the intense need to determine actual levels of need. 

This Proposed Project needs to clearly define how population needs will be assessed for 

people that do not have access to behavioral health services. There should be a specific 

section that elaborates on a method to not only determine this for Tribal populations 

but all rural populations as identified by the Health Professional Shortage Areas. 

If this measure is not taken there will be a gross underestimate of service needs from 

populations that are never "counted" until they self-terminate or suffer catastrophic 

consequences. 

3. States must be required to consult with Tribal representatives (specifically elected Tribal 

leaders or individuals formally appointed to represent their Tribal government) for any 

prioritization of State planning activities. Tribal populations will continue to be

underserved without this requirement. 

4. Only Tribes know their population's attainable goals, strategies and performance 

indicators that are culturally applicable. This responsibility is accepted by Tribes for 

their constituents and not transferable. All Tribes, which have territories within State 

boundaries, should be consulted for any development of goals and performance 

indicators. 

In regard to the paragraph Description of State's Consultation with Tribes, the following 

comments are provided: 

We would suggest some additional language to fortify the government to government 

relationship that Tribes have with the Federal government. State relations history and 

Tribes as noted by Administrator Hyde in the Alcoholism and Drug Abuse Weekly, 

" ... (Tribes) neither consulted with nor are their needs addressed when the state gets the 

dollars" ... , needs to be definitively improved and required. 

While we have been advised that SAMHSA "cannot require" State to consult with Tribes, 

there should be required reporting components in the State reports that tracks the 

dollars spent. A suggested list of those components should at a minimum include: 

• Name of Tribe(s) 

• Date of Consultation 

• Duration of Consultation (e.g. hours, days) 

• List of Tribal Representatives 

• Topic of Consultation 

Required Topics of Discussion must include:* 

Scope of service provision (amount and need) 

Strategies for service provision 

Utilization of services 

Time frame for State implementation of Proposed Project 

Involvement of "Dashboard" development (key performance indicators 

Suicide prevention 

- Technical assistance needs 

Involvement of individuals and families 

Use of technology 

Collaboration 

(* please note this is not an all inclusive list, more components could be required) 

The list above should be strongly considered as a reporting requirement. Without such 

a requirement, history and experience has clearly shown that Tribal populations will be 

neglected/excluded from access to federal dollars that are appropriately designated for 

the needs of American Indians and Alaska Natives (AI/AN). 

Lastly, SAMSHA should require States to include official Tribal representatives (from all 

Tribes in the State) to be a voting member of State Behavioral Health Advisory Councils 

(council names may vary by State). This is critical, and important that each Tribe be 

invited to name a representative for State level councils. It is not enough nor

November 14 -15, 2012 TTAG 

FACE TO FACE MEETING 

National Museum of the American Indian 

4 th floor conference room 

Fourth & Independence Avenue, SW 

Washington, DC 

AGENDA: Day 1 Wednesday – Nov. 14, 2012 

9:00 – 9:15 Welcome Call to Order: Valerie Davidson, Chair, and Alaska Area Representative 

Opening Prayer: 

Roll Call: Liz Heintzman, Legislative Program Associate, NIHB 

Introductions: Valerie Davidson, Chair 

9:15 – 9:30 Report from Chair: Valerie Davidson, Chair 

9:30– 9:45 Report from Secretary (TAB A): Richard Narcia, Phoenix Area Representative 

- Approval of TTAG Face-to-Face Meeting minutes: July 25-26, 2012 

9:45 – 10:15 CMS Leadership: 

- Ajay Gupta, Senior Advisor to the Administrator 

10:15 – 11:15 CMS Tribal Affairs Group Report (TAB B) 

- Kitty Marx, Director, TAG/CMS 

o Tribal Affairs Group Updates 

o Determine 2013 TTAG Face-to-Face Meeting Dates 

11:15 – 11:30 Break 

NIHB Update: 

- Stacy Bohlen, Executive Director, NIHB 

- Jennifer Cooper, Legislative Director, NIHB 

11:30– 12:00 Money Follows the Person Funding Opportunity 

- Kitty Marx, Director, TAG/CMS 

12:00 – 1:30 Lunch on your own 

November 14-15, 2012 TTAG Face To Face Meeting 

1

1:30 – 2:15 OIG: Update OIG Work Plan FY 2013 (TAB C) 

- Talisha Searcy, Deputy Director for Evaluation Planning and Support Division, 

Office of Evaluation and Inspections, OIG 

- Maritza Hawrey, Audit Manager, Grants and Internal Audits, Office of Audit 

Services, OIG 

2:15-2:45 Final action and Approval of TTAG AI/AN Strategic Plan 2013 -2018 

- Jim Roberts, Chair, TTAG Budget and Strategic Plan Subcommittee 

- Mim Dixon, TTAG Technical Advisor, TSGAC 

2:45 – 3:15 Subcommittee Reports (TAB D): 

- Outreach & Education: Dr. Alec Thundercloud 

- Long-Term Care: Judy Goforth Parker 

- DATA : Jim Crouch 

- Behavioral Health: Linda Frizzell 

- CMS Tribal Consultation: Ron Allen 

- ACA Policy Subcommittee: Jim Roberts 

- Across State Borders: Donita Stephens 

3:15 – 3:30 Break 

3:30 – 4:00 CCIIO Update (TAB E) 

- Lisa Wilson, CCIIO, CMS 

4:00- 5:00 Update from the Center for Medicaid and CHIP (TAB F) 

- Lane Terwilliger JD, LL.M., Technical Director, Div. of State Demonstrations & 

Waivers, CMCS/CMS 

5:00 Adjourn: Valerie Davidson, Chair 


2

AGENDA: Day 2 Thursday – Nov. 15, 2012 

9:00 Call to Order: Valerie Davidson, Chair, Alaska Area Representative 

9:05 – 12:00 Other Subcommittee meetings 

10:00 – 11:30 Data Subcommittee meeting at HHS, Room 335G 

877-267-1577; Meeting ID: 7218 

12:00 Adjourn TTAG Meeting 

12:30 pm NIHOE Area & National Partnership Meeting 

National Congress of American Indians 

1516 P Street NW, Washington, DC 

888-244-8150; password: 6989122 

Future Meetings and Conference Calls: 

Conference Calls: 2:30 - 4:00 PM 

December 12, 2012: call in number 1-877-267-1577, meeting ID: 9925 

January 9, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

March 13, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

April 10, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

May 8, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

June 12, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

August 14, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

September 11, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

October 9, 2013:call in number 1-877-267-1577. Meeting ID: TBD 

December 11, 2013: call in number 1-877-267-1577. Meeting ID: TBD 

Face to Face Meetings: 

February : NMAI, Washington, D.C. 

July : NMAI, Washington, DC 

November :NMAI, Washington, DC 


3

HHS Block Grant Regulations 

Title 45 (Public Welfare and Human Services, General 

Administration), 

Part 96 (Block Grants), revised as of October 1, 1996 

The text of the U.S. Department of Health 

and Human Services (HHS) Block Grant 

Regulations (Title 45, Part 96 of the Code 

of Federal Regulations) is taken from 

the U.S. Government Printing Office via GPO 

Access//CITE: 45CFR96. 

A listing of the sections to Subparts A-L 

and Appendices A-B of the regulations 

begins HERE. Text links to the Subparts and 

Appendices begin HERE. 

LIHEAP regulations are found at Subpart H. 

Subparts A-F are also relevant to LIHEAP. 

Text links to the Subparts and Appendices 

Subpart A--Introduction 

Subpart B--General Procedures 

Subpart C--Financial Management 

Subpart D--Direct Funding of Indian Tribes 

Subpart E--Enforcement 

Subpart F--Hearing Procedure

Subpart G--Social Services Block Grant 

Subpart H--Low-Income Home Energy 

Assistance Program 

Subpart I--Community Services Block Grants 

Subpart J--Primary Care Block Grants 

Subpart K--Transition Provisions 

Subpart L--Substance Abuse Prevention and 

Treatment Program 

Appendix A to Part 96--Uniform Definitions 

of Services 

Appendix B to Part 96--SSBG Reporting Form 

and Instructions 

Subpart D--Direct Funding of Indian Tribes 

and Tribal Organizations | Top of Page 

Sec. 96.40 Scope. 

This subpart applies to the community 

services, alcohol and drug abuse and mental 

health services, preventive health and 

health services, primary care, and lowincome 

home energy assistance block grants.

[[Page 486]] 

Sec. 96.41 General determination. 

(a) The Secretary has determined that 

Indian tribes and tribal organizations would 

be better served by means of grants provided 

directly by the Secretary to such tribes and 

organizations out of the State's allotment 

of block grant funds than if the State were 

awarded its entire allotment. Accordingly, 

where provided for by statute, the Secretary 

will, upon request of an eligible Indian 

tribe or tribal organization, reserve a 

portion of a State's allotment and, upon 

receipt of the complete application and 

related submission that meets statutory 

requirements, grant it directly to the tribe 

or organization. 

(b) An Indian tribe or tribal 

organization may request direct funding 

under a block grant program included in this 

subpart regardless of whether the State in 

which it is located is receiving funds under 

the block grant program. 

Sec. 96.42 General procedures and 

requirements. 

(a) An Indian tribe or tribal

organization applying for or receiving 

direct funding from the Secretary under a 

block grant program shall be subject to all 

statutory and regulatory requirements 

applicable to a State applying for or 

receiving block grant funds to the extent 

that such requirements are relevant to an 

Indian tribe or tribal organization except 

where otherwise provided by statute or in 

this part. 

(b) A tribal organization representing 

more than one Indian tribe will be eligible 

to receive block grant funds on behalf of a 

particular tribe only if the tribe has by 

resolution authorized the organization's 

action. 

(c) If an Indian tribe or tribal 

organization whose service population 

resides in more than one State applies for 

block grant funds that, by statute, are 

apportioned on the basis of population, the 

allotment awarded to the tribe or 

organization shall be taken from the 

allotments of the various States in which 

the service population resides in proportion 

to the number of eligible members or 

households to be served in each State. If 

block grant funds are required to be 

apportioned on the basis of grants during a 

base year, the allotment to the Indian tribe 

or tribal organization shall be taken from 

the allotment of the State whose base year 

grants included the relevant grants to the

tribe or organization. 

(d) The audit required under the block 

grant programs shall be conducted by an 

entity that is independent of the Indian 

tribe or tribal organization receiving grant 

funds from the Secretary. 

(e) Beginning with fiscal year 1983, any 

request by an Indian tribe or tribal 

organization for direct funding by the 

Secretary must be submitted to the 

Secretary, together with the required 

application and related materials, by 

September 1 preceding the Federal fiscal 

year for which funds are sought. A separate 

application is required for each block 

grant. After the September 1 deadline, 

tribal applications will be accepted only 

with the concurrence of the State (or 

States) in which the tribe or tribal 

organization is located. 

(f) A State receiving block grant funds 

is not required to use those funds to 

provide tangible benefits (e.g., cash or 

goods) to Indians who are within the service 

population of an Indian tribe or tribal 

organization that received direct funding 

from the Department under the same block 

grant program for the same fiscal year. A 

State, however, may not deny Indians access 

to intangible services funded by block grant 

programs (e.g., treatment at a community 

health center) even if the Indians are

members of a tribe receiving direct funding 

for a similar service. 

[47 FR 29486, July 6, 1982, as amended at 52 

FR 37966, Oct. 13, 1987] 

Sec. 96.43 Procedures during FY 1982. 

(a) This section applies to the fiscal 

year beginning October 1,1981. 

(b) A request for direct funding must be 

received by the Secretary before the 

Secretary has awarded all of the allotment 

to the State involved. The application and 

related submission may be submitted later 

but must be submitted within 75 days after 

the beginning of the quarter in which the 

State qualified for block grant funds, (or 

by August 20,1982 in the case of an Indian 

tribe located in a State that has not 

qualified for block grant funds in FY 1982) 

except that the application and related 

submission for the low-income 

[[Page 487]] 

home energy assistance program must be 

submitted by December 15, 1981. A separate 

request and application are required for 

each block grant. 

[47 FR 29486, July 6, 1982; 47 FR 43062, 

Sept. 30, 1982] 

Sec. 96.44 Community services.

(a) This section applies to direct 

funding of Indian tribes and tribal 

organizations under the community services 

block grant. 

(b) The terms Indian tribe and tribal 

organization as used in the Reconciliation 

Act have the same meaning given such terms 

in section 4(b) and 4(c) of the Indian Self- 

Determination and Education Assistance 

Act (25 U.S.C. 450b). The terms also include 

organized groups of Indians that the State 

in which they reside has determined are 

Indian tribes. An organized group of Indians 

is eligible for direct funding based on 

State recognition if the State has expressly 

determined that the group is an Indian 

tribe. In addition, the statement of the 

State's chief executive officer verifying 

that a tribe is recognized by that State 

will also be sufficient to verify State 

recognition for the purpose of direct 

funding. 

(c) For purposes of section 674(c)(2) of 

the Act (42 U.S.C. 9903(c)(2)) an eligible 

Indian means a member of an Indian tribe 

whose income is at or below the poverty line 

defined in section 673(2) of the Act (42 

U.S.C. 9902(2)). An eligible individual 

under section 674(c)(2) of the 

Reconciliation Act (42 U.S.C. 9903(c)(2)) 

means a resident of the State whose income

is at or below the poverty line. 

(d) An Indian tribe or tribal 

organization will meet the requirements of 

section 675(c)(1) (42 U.S.C. 9904(c)(1)) if 

it certifies that it agrees to use the funds 

to provide at least one of the services or 

activities listed in that section. 

(e) An Indian tribe or tribal 

organization is not required to comply with 

section 675(b) (42 U.S.C. 9904(b)) or to 

provide the certifications required by the 

following other provisions of the 

Reconciliation Act. 

(1) Section 675(c)(2)(A) (42 U.S.C. 

9904(c)(2)(A)); 

(2) Section 675(c)(3) (42 U.S.C. 

9904(c)(3)); and 

(3) Section 675(c)(4) (42 U.S.C. 

9904(c)(4)). 

(4) Section 675(c)(11) (42 U.S.C. 

9904(c)(11)). 

(f) In each fiscal year, Indian tribes 

and tribal organizations may expend for 

administrative expenses--comparable to the 

administrative expenses incurred by State at 

the State level--an amount not to exceed the 

greater of the amounts determined by:

(1) Multiplying their allotment under 

section 674 of the Reconciliation Act (42 

U.S.C. 9903) by five percent; or 

(2) Multiplying the allotment by the 

percentage represented by the ratio of 

$55,000 to the smallest State allotment 

(excluding territorial allotments) for that 

fiscal year. 

[47 FR 29486, July 6, 1982, as amended at 52 

FR 37967, Oct. 13, 1987] 

Sec. 96.45 Preventive health and health 

services. 



organizations under the preventive health 

and health services block grant. 

(b) For the purposes of determining 

eligible applicants under section 1902(d) of 

the Public Health Service Act, a grantee 

that received a grant directly from the 

Secretary in FY 1981 under any of the 

programs replaced by the preventive health 

and health services block grant that was 

specifically targeted toward serving a 

particular Indian tribe or tribal 

organization will be considered eligible if 

the grantee is an Indian tribe or tribal 

organization at the time it requests funds

under this part. Grantees that received 

funds under formula or Statewide grants, and 

subgrantees that received funds from any 

program replaced by the preventive health 

and health services block grant, are not 

eligible. 

Sec. 96.46 Substance abuse prevention and 

treatment services. 



organizations under the substance abuse 

prevention and treatment Block Grant. 

(b) For the purpose of determining 

eligible applicants under section 1933(d) of 

the Public Health Service Act (42 U.S.C. 

300x-33(d)) an Indian tribe or 

[[Page 488]] 

tribal organization (as defined in 

subsections (b) and (c) of section 4 of the 

Indian Self-Determination and Education 

Assistance Act) that received a direct grant 

under subpart I of part B of title XIX of 

the PHS Act (as such existed prior to 

October 1, 1992) in fiscal year 1991 will be 

considered eligible for a grant under 

subpart 2 of part B of title XIX of the PHS 

Act. 

(c) For purposes of the substance abuse 

prevention and treatment Block Grant, an

Indian tribe or tribal organization is not 

required to comply with the following 

statutory provisions of the Public Health 

Service Act: 1923 (42 U.S.C. 300x-23), 1925 

(42 U.S.C. 300x-25), 1926(42 U.S.C. 300x- 

26), 1928 (42 U.S.C. 300x-28), 1929 (42 

U.S.C. 300x-29),and 1943(a)(1) (42 U.S.C. 

300x-53(a)(1)). An Indian tribe or tribal 

organization is to comply with all other 

statutes and regulations applicable to the 

Substance Abuse Prevention and Treatment 

Block Grant. 

In each case in which an Indian Tribe 

receives a direct grant, the State is also 

responsible for providing services to Native 

Americans under the State's Block Grant 

program. 

[58 FR 17070, Mar. 31, 1993] 

Sec. 96.47 Primary care. 

Applications for direct funding of 

Indian tribes and tribal organizations under 

the primary care block grant must comply 

with 42 CFR Part 51c (Grants for Community 

Health Services). 

Sec. 96.48 Low-income home energy 

assistance. 


funding of Indian tribes under the low-

income home energy assistance program. 

(b) The terms Indian tribe and tribal 

organization as used in the Reconciliation 

Act have the same meaning given such terms 

in section 4(b) and 4(c) of the Indian Self- 

Determination and Education Assistance Act 

(25 U.S.C. 450b) except that the terms shall 

also include organized groups of Indians 

that the State in which they reside has 

expressly determined are Indian tribes or 

tribal organizations in accordance with 

State procedures for making such 

determinations. 

(c) For purposes of section 2604(d) of 

the Act (42 U.S.C. 8623(d)), an organized 

group of Indians is eligible for direct 

funding based on State recognition if the 

State has expressly determined that the 

group is an Indian tribe. A statement by the 

State's chief executive officer verifying 

that a tribe is recognized by that State 

will also be sufficient to verify State 

recognition for the purpose of direct 

funding. 

(d) The plan required by section 

2604(d)(4) of the Reconciliation Act (42 

U.S.C. 8623(d)(4)) shall contain the 

certification and information required for 

States under section 2605 (b) and (c) of 

that Act (42 U.S.C. 8624 (b) and (c)). An 

Indian tribe or tribal organization is not 

required to comply with section 2605(a)(2)

of the Act (42 U.S.C. 8624(a)(2)). 

(e) Where a tribe requests that the 

Secretary fund another entity to provide 

energy assistance for tribal members, as 

provided by section 2604(d)(3) of the Act 

(42 U.S.C. 8623(d)(3)), the Secretary shall 

consider the following factors in selecting 

the grantee: the ability of the other entity 

to provide low-income home energy 

assistance, existing tribal-State agreements 

as to the size and location of the service 

population, and the history of State 

services to the Indian people to be served 

by the other entity.

Need for Uniform Operational Guidance in Determining Eligibility 

for Indian-specific Benefits and Protections under the Affordable Care Act 

ISSUE: 

The ACA includes three Indian-specific sections that provide special protections and benefits to AI/ANs. CMS 

has determined that the two Exchange-related definitions (for Exchange cost-sharing and enrollment 

protections) “operationally means the same thing.” 1 IRS has said informally that its definition section, which 

protects against tax penalties being applied to AI/ANs for not maintaining minimum essential coverage, has 

the same meaning as the definitions used for the Exchange. 

CMS has opined that the eligibility standard for the Indian-specific provisions under the ACA are “slightly 

different” from the AI/AN eligibility standards for IHS services. 2 In response to requests from States for 

clarification about who an “Indian” is, CMS adopted Medicaid regulations that simplified the IHS eligibility 

rules. See, 42 CFR 447.50. 

OBJECTIVE: 

Uniform operational guidance is needed, consistent with 42 CFR 447.50, regarding eligibility determinations 

for Indian-specific benefits and protections under Medicaid and the Affordable Care Act through HHS and IRS 

guidance or regulation. 

RECOMMENDED ACTIONS: 

1. Issue operational guidance from HHS and Treasury to assist Exchange enrollment staff and others as 

necessary in determining eligibility for Indian-specific benefits and protections for Exchange and 

Medicaid coverage; 

2. Rely on the CMS regulations, 42 C.F.R. § 447.50, in order to permit a uniform application across 

Medicaid, state and federal Exchanges and IRS (for the exemption for AI/ANs from the tax penalty for 

not maintaining minimum essential coverage). 

AUTHORITY: 

It is well established that (1) the federal government has a trust responsibility to provide health care to 

Indians, and (2) that laws for the benefit of Indians should be construed liberally in favor Indians. 

As established under 45 C.F.R. § 155.315(h) Flexibility in information collection and verification, the Secretary 

of HHS has discretionary authority to approve modifications to the methods used for the collection and 

verification of information related to eligibility for enrollment through an Exchange and for eligibility for 

Exchange insurance affordability programs. This authority may be exercised by the Secretary “provided that 

HHS finds that such modification would reduce the administrative costs and burdens on individuals while 

maintaining accuracy and minimizing delay, [and] that it would not undermine coordination with Medicaid 

and CHIP…” As indicated below, these criteria would be met through the issuance and reliance on uniform 

operational guidance. 

TRIBAL SUPPORT FOR USING CMS’ MEDICAID REGULATIONS AS THE UNIFORM OPERATIONAL GUIDANCE 

National and regional tribal organizations support the application of uniform operational guidance using the 

CMS Medicaid regulation at 42 C.F.R. § 447.50 for purposes of implementing the Indian-specific provisions of 

the Affordable Care Act. Resolutions of support were adopted by the National Congress of American Indians 

(NCAI), the National Indian Health Board (NIHB), and the Tribal Technical Advisory Group to CMS (TTAG). 

1 Exchange Establishment Final Rule, 77 Fed. Reg. 18346. 

2 Exchange Establishment Final Rule, 77 Fed. Reg. 18383. 

Page 1 of 2

POTENTIAL RAMIFICATIONS FOR FAILING TO ISSUE UNIFORM OPERATIONAL GUIDANCE: 

Failure to issue uniform operational guidance will impede Exchange, Medicaid and IRS staff in making accurate 

and consistent determinations of eligibility as well as delay or completely deny access for some AI/ANs to the 

Indian-specific benefits and protections established under the Affordable Care Act. 

Delayed eligibility for some AI/AN children: An AI/AN child who is not allowed to enroll as a tribal 

member until her 18 th birthday may not be considered eligible for Exchange-related Indian-specific 

cost-sharing and enrollment protections, despite being considered an AI/AN for purposes of IHS, 

Medicaid and CHIP coverage. 

Unwarranted application of tax penalties: If an AI/AN who is eligible and, in fact, is accessing IHS 

services decides not to secure health insurance coverage, but is not (ultimately) determined to be 

eligible as an “Indian” for the exemption from the requirement to secure minimum essential coverage, 

this individual could be subject to significant tax penalties imposed under the ACA by the Internal 

Revenue Service. 

Reduced timeliness: The consolidated and streamlined Medicaid and Exchange application process is 

intended to rely, to the greatest extent possible, on electronic verification of application-related 

information. The lack of uniform operational guidance would complicate (although not prevent) the 

use of automated databases that may be available for electronic verification, such as using the IHS 

beneficiary roster, hamper coordination between Medicaid and Exchange eligibility, and likely increase 

the administrative costs and burden on individuals. 

Reduced accuracy in eligibility determinations: If guidance is not issued by CMS, or if the guidance 

issued does not provide uniformity across the Indian-specific provisions in Medicaid, Exchange 

coverage, and pertaining to the exemption from tax penalties, thereby requiring each Exchange to 

identify any differences in eligibility standards under the various definitions, including understanding 

the differences, if any, in documentation permitted to satisfy each definition of Indian, error rates for 

eligibility determinations will increase. 

Blocked access for some Alaska Natives: Some Alaska Native adults and children may not be 

considered AI/AN by Exchanges until their parents die and they inherit stock in an Alaska Native 

corporation; likewise, their children would not be considered AI/AN by Exchanges until they die and 

the stock in an Alaska Native corporation is passed along to children even though the parent and the 

children would qualify as AI/AN under Medicaid and other governmental services (e.g., IHS and BIA). 

Reduced involvement of AI/AN in insurance options: Even if the instances of an individual being 

determined to be “Indian” for one Indian-specific provision and not for another represent a relatively 

small percentage of the total population (which we anticipate), this outcome would likely cast a 

shadow over AI/ANs involvement with ACA implementation more generally. For example, AI/ANs may 

be much more reluctant to consider transitioning from the IHS-based coverage model to 

comprehensive Exchange coverage if there is a risk of ending-up subject to significant cost-sharing 

requirements under a different, potentially unknown application of a definition of Indian. 

For questions please contact Jim Roberts, Policy Analyst, (503) 228-4185 or email at jroberts@npaihb.org. 

Page 2 of 2

Dear Tribal Representatives, 


You are invited to join the National Indian Health Board (NIHB) on a bold journey to GO THE EXTRA MILE with NIHB. On 

November 1, 2012, the first day of both American Indian Heritage Month and Diabetes Awareness month, NIHB will 

launch its GO THE EXTRA MILE initiative, and we invite you to join us on this year-long journey. The kickoff event will 

take place on November 1 st at 8 AM in front of the National Museum of American Indians in Washington, D.C., and you 

are invited to join us for this event and walk a mile with us. If you are unable to join us, we encourage you to organize 

your own community event on November 1 st to GO the EXTRA MILE and begin this journey by walking the first mile 

together. 

The GO the EXTRA MILE initiative is a result of the NIHB signing the CEO pledge, which is part of a national campaign to 

encourage Executive Directors to commit to supporting and fostering a physically-active workplace. NIHB’s GO the 

EXTRA MILE initiative achieves these goals by creating a workplace that supports physical activity for every member of 

its staff. Through the GO THE EXTRA MILE with NIHB initiative, we will provide staff 30 minutes during the work day to 

walk one mile each day for a year. We will aggregate these miles and “virtually” walk to each of the 12 Indian Health 

Service Areas, either to an Area Indian Health Board or to a Tribal Partner in Areas that do not have a Board. We invite 

you to join NIHB by signing the CEO pledge and participating in the November 1 st launch. You will have access to the 

NIHB Go The Extra Mile website, which will include a toolkit, electronic mapping for your journey, and access to 

information like “Hot Health Tips” from our partner, the Association of American Indian Physicians. More information is 

also provided in the enclosed materials. 

As you know, American Indians and Alaska Natives (AI/AN) have the highest age-adjusted prevalence of Type 2 diabetes 

among all U.S. racial and ethnic groups and our People’s obesity rate is 39% for those 18 and older. Among AI/AN adults 

18 and older, the percentage of inactive physical activity in 2010 was 53.9%, which was far from meeting federal physical 

activity guidelines (at least 150 minutes or 30 minutes a day of moderate-intensity aerobic activity per week, i.e., brisk 

walking). There is a correlation between physical activity and chronic diseases. The Diabetes Prevention Program clinical 

trial, led by the National Institutes of Health, has shown that getting at least the recommended 30 minutes a day of 

moderate physical activity and losing 5% to 7% of body weight can reduce the risk of developing type 2 diabetes by 58% 

in people at risk. NIHB’s GO the EXTRA MILE is one small step toward supporting diabetes and obesity prevention for 

AI/AN. 

Remember, the journey for health is not a marathon, nor a sprint, but a relay that we, together, walk in order 

to outsmart chronic diseases that threaten our health in Indian Country 

We will be joined for the November 1 st kick off event by the Association of American Indian Physicians, American 

Diabetes Association, Juvenile Diabetes Research Foundation, National Obesity Awareness Coalition, and the National 

Coalition on Promoting Physical Activity. We hope to see you there and on the virtual road ahead, as we GO the EXTRA 

MILE together. 

Miigwech – Thank you, 

Stacy A. Bohlen, Executive Director, NIHB

Introduction 

NIHB to Launch a Workplace Fitness Program: 

GO the EXTRA MILE! 


The National Indian Health Board (NIHB) is excited to introduce our new healthy workplace initiative, GO the 

EXTRA MILE. The goal of the NIHB GO the EXTRA MILE initiative is to create a healthier work 

environment and promote employee health through providing staff members with thirty paid minutes each work 

day to go for a walk. Along with the NIHB Executive Director, each staff member pledged to walk an 

additional mile each day for an entire year. The GO the EXTRA MILE initiative stems from the CEO Pledge, a 

project through the National Coalition on Promoting Physical Activity (NCPPA), which urges CEOs to pledge 

their commitment to foster a healthy workplace. The NIHB GO the EXTRA MILE initiative is the newest 

element of collaborated efforts within the National Physical Activity Plan. 

The National Physical Activity Plan 

The National Physical Activity Plan, the first, national comprehensive plan to support and encourage physical 

activity among all Americans, was launched in 2010 through a 10 month collaboration between experts from 

various, diverse fields. The plan comprises a wide range of public policy recommendations across eight broad 

sectors. Through the National Physical Activity Plan, hundreds of organizations are working together to change 

our communities in ways that will enable every American to be physically active. Its ultimate purpose is to 

improve health, prevent disease and disability, and enhance quality of life. 

The CEO Pledge 

The National Coalition for Promoting Physical Activity (NCPPA) is a 501(c)(4) tax exempt organization that is 

leading the implementation of the National Physical Activity Plan at the national level through The CEO 

Pledge, which encourages every CEO in the United States to recognize physical activity as an important driver 

of employee health. Studies of employee wellness programs consistently find that executive leadership is 

critical to employee engagement. If employees believe that creating a culture of physical activity is an executive 

priority, employees are more likely to be physically active. 

The CEO Pledge states: 

“For the betterment of my company, our employees, their families, and our country, I pledge to 

improve employee health and wellness by providing opportunities and resources for physical 

activity before, during or after the workday, and to enhance my own health and wellness by 

engaging in regular physical activity.” 

GO the EXTRA MILE Initiative

There is a strong correlation between obesity and diabetes—more than 80% of people with Type 2 diabetes are 

overweight. With diabetes and obesity on the rise, every organization in the United States has an obligation and 

responsibility to lead its community to a healthier future. Nowhere is this need more urgent than in Indian 

Country. At nearly 16.1%, American Indians and Alaska Natives (AI/AN) have the highest age-adjusted 

prevalence of Type 2 diabetes among all U.S. racial and ethnic groups. The obesity rate, which is determined by 

having a body max index (BMI) of 30 or greater, is 39% for AI/AN 18 and older. Among AI/AN adults 18 and 

older, the percentage of inactive physical activity in 2010 was 53.9%, which did not meet federal physical 

activity guidelines (at least 150 minutes of moderate-intensity aerobic activity, i.e., brisk walking a week). 

Mission 

The NIHB recognizes this urgent need to advocate for physical activity as a preventive measure against chronic 

diseases. NIHB would like to welcome Executive Directors from Area Indian Health Boards, Tribes, and other 

Tribal organizations to join NIHB in recognizing this urgent need by signing the CEO Pledge and Go the 

EXTRA MILE. 

Goal 

NIHB’s yearly goal is to encourage every NIHB employee to walk a mile every day (an additional mile separate 

from daily routine) for a year. With 13 employees, the minimum yearly walking goal NIHB is aiming to achieve 

is 4,745 miles. With these aggregated miles, NIHB will “virtually” walk to all Area Indian Health Boards and 

the Midwest Alliance of Sovereign Tribes (Bemidji Area). The idea is to provide encouragement to Tribes and 

Tribal organizations to GO the EXTRA MILE. Together, we can help transform our Tribal nation’s overall 

health and wellbeing. 

The Plan 

As part of the CEO Pledge, NIHB has established a plan to implement exercise in the workplace. 

Provide thirty paid minutes a day for staff to go for a walk. 

Track and report miles daily. 

Arrange healthy incentives for meeting team walking goals. 

Coordinate community walks. 

Update monthly the “GO the EXTRA MILE” website with physical activity events, exercise 

information, and progress from NIHB and participating organizations. 

Offer a toolkit to encourage other organizations to GO the EXTRA MILE. 

One of NIHB’s primary areas of focus is to improve the health of AI/AN. Through exercise and diet, many 

American Indians who suffer from this disease, can help mitigate the symptoms of diabetes through diet and

exercise. NIHB GO the EXTRA MILE initiative is just a small way that NIHB can demonstrate positive and 

supportive workplace efforts to support diabetic employees, help prevent the onset of Type 2 diabetes through 

added physical activity and enhance the quality of health for all employees. 

Kick-off Launch 

NIHB’s kickoff launch for the GO the EXTRA MILE is on November 1 st , 2012 at 8:00 am in front of the 

National Museum of American Indians in Washington, D.C. November is Native American Heritage Month and 

National Diabetes Awareness Month—the perfect time to start our new healthy initiative for promoting exercise 

in the workplace. 

It is not a marathon, or a sprint, but a relay that we, together, walk in order to outsmart chronic diseases that 

threaten our health in Indian Country.

Wed. Nov 14 th : SDPI National Call-In Day 

We Need Your Voice to Save the SDPI 

November 14, 2012 

The Special Diabetes Program for Indians (SDPI) provides critical programs that are helping our Tribal 

communities address complications and burdens of diabetes. This critical program is set to expire unless 

Congress acts to renew it. We need your help. On November 14 th - World Diabetes Day - please join NIHB 

and Tribal communities from across the country in asking your Senators and Representatives to support renewal 

of the SDPI this year! We need to make sure that Congress renews SDPI! 

What You Can Do: Contact your Senate and House of Representative member on November 14 th and request 

your Member to support renewal of SDPI. 

• To determine your Representative and contact information, click here. 

• To determine your Senators and contact information, click here. 

• To be connected to a Senator or Representative via phone, call the Congressional Switchboard at 

1-(800) 828-0498 or (202) 224-3121 and ask to be connected to your Senator or Representative and after 

you are connected to the office, ask to speak with the Health aide. 

Tell Your Representative: 

• I am a constituent and calling to ask Senator ____ / Representative ____ to support a multi-year renewal 

of the Special Diabetes Program for Indians this year. 

• SDPI proves that federal investment in community-driven, culturally-appropriate prevention and 

education programs can reduce a person’s risk of developing diabetes or of developing complications for 

those who have diabetes. 

• If SDPI is not renewed this year, critical diabetes prevention and education services will be eliminated 

and the progress that has been made will be reversed. 

• Thank you for your support of this critical program. 

Questions: Please contact NIHB’s Senior Legislative Associate, Jeremy Marshall at (202) 507-4078.or 

Jmarshall@nihb.org.

Background on the SDPI 

Congress established the Special Diabetes Program for Indians (SDPI) in 1997 to address the growing epidemic 

of diabetes in American Indian and Alaska Natives (AI/ANs) communities. AI/ANs have the highest rates of 

type 2 diabetes in the United States, 2.8 times higher than the general population. The SDPI is currently funded 

at $150 million per year through Fiscal Year (FY) 2013. 

The program will expire in 2013 unless it is reauthorized. 

To ensure uninterrupted funding for SDPI, it is crucial that Congress pass a reauthorization this year. SDPI 

proves that federal investment in community-driven, culturally-appropriate prevention programs has immensely 

positive results: 

• Average blood sugar levels among the AI/AN population decreased a full percentage point (from 9.0 

percent to 8.0 percent) between 1996 and 2011, translating into a 40% reduction in risks for many 

complications. 

• Average LDL (bad) cholesterol declined over 20 percent between 1998 and 2011, significantly lowering 

the risk of cardiovascular complications. 

• Between 1995 and 2006, the incidence rate of End Stage Renal Disease (ESRD) in AI/AN individuals 

with diabetes fell by 27.7 percent – a greater decline than for any other racial or ethnic group - which 

translates into millions of dollars in savings for Medicare, the Indian Health Service, and other third 

party payers.

Future MMPC Meetings & Conference Calls: 

2:00PM - 4:00 PM EST 

Conference Call In Number: 866-303-3137 

Pass Code: 414526 

December 5, 2012 

January 2013-TBD 

March 6, 2013 

April 3, 2013 

May 1, 2013 

June 5, 2013 

August 7, 2013 



December 4, 2013 


February 2013 TBD,Washington, D.C. 

July 2013, TBD, Washington, D.C. 

November 2013, TBD,Washington, D.C. 

______________________________________________________________________________ 

Future TTAG Meetings & Conference Calls: 

2:30PM - 4:00 PM EST 

Call in number 1-877-267-1577 

December 12, 2012: Meeting ID: 9925 

January 9, 2013: Meeting ID: TBD 

March 13, 2013: Meeting ID: TBD 

April 10, 2013: Meeting ID: TBD 

May 8, 2013: Meeting ID: TBD 

June 12, 2013: Meeting ID: TBD 

August 14, 2013: Meeting ID: TBD 

September 11, 2013: Meeting ID: TBD 

October 9, 2013: Meeting ID: TBD 

December 11, 2013: Meeting ID: TBD 


February 2013: NMAI, Washington, D.C. 

July 2013: NMAI, Washington, D.C. 

November 2013: NMAI, Washington, D.C.

REGULATIONS REVIEW UPDATE 

TABLE OF CONTENTS 

FEDERAL REGISTER IDENTIFIER CMS 10445 1 

DRAFT NIHB COMMENT CMS 10445 3 

RRIAR V. 2.11 6 

ACTIVE, NEW & ONGOING MMPC/TTAG ISSUES, STATUS, GOALS & NEXT 

STEPS 

BIO—JOHN O’BRIEN, DIRECTOR, HEALTHCARE & INSURANCE, OPT 47 

NIHB COMMENTS ON DRAFT MULTI-STATE PLAN PROGRAM APPLICATION 48 

DEAR GOVERNOR LETTER FROM SECRETARY SEBELIUS 55 

ANALYSIS OF TRIBAL CONSULTATION POLICIES FOR HEALTH INSURANCE EXCHANGES 57 

TRIBAL CONSULTATION FOR HEALTH INSURANCE EXCHANGES SURVEY QUESTIONS 75

Regulation Review and Impact Analysis Report 

v. 2.11 

-- DRAFT -- 

As of November 12, 2012 

Attachments 

- Table A: Listing and Status Report on Regulations Reviewed (through 11/9/2012) 

- Table B: Summary and Analysis of Agency Notices and Regulations (through 8/15/2012) 

- Table C: NIHB Recommendations and Evaluation of Agency’s Subsequent Actions (through 5/15/2012)

The purpose of the Regulation Review and Impact Analysis Report (RRIAR) is to identify and summarize key regulations issued by the Centers for 

Medicare and Medicaid Services (CMS) pertaining to Medicare, Medicaid, CHIP, and health reform 1 that affect (a) American Indians and Alaska Natives 

and/or (b) Indian Health Service, Indian Tribe and tribal organization, and urban Indian organization providers. Furthermore, the RRIAR includes a 

summary of the regulatory analyses prepared by the National Indian Health Board (NIHB) 2 , if any, and indicates the extent to which the recommendations 

made by NIHB were incorporated into any subsequent CMS actions. 

In addition to this cover page, the report 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. The regulations are organized in four sections: I. Medicaid; II. Medicare; III. Health Reform; and IV. Other. 

- 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. 

Regulations with pending due dates for public comments – 

2.d. Medicare Advantage and Part D Plan Applications (CMS-10237 and CMS-10137; comments due 11/13/2012; under review) 

11.e. Medicare Advantage Quality Bonus Payment Demonstration (CMS-10445; comments due 11/16/2012; comments drafted) 

60.d. Medicare Electronic Data Interchange Form (CMS-10164; comments due 11/16/2012) 

84. Monthly State File of Dual Eligible Enrollees (CMS-10143; comments due 11/16/2012) 

49.b. Medicare Credit Balance Reporting Requirements (CMS-838; comments due 11/16/2012) 

85. Minimum Data Set for Medicaid Incentives for Prevention of Chronic Diseases (CMS-10444; comments due 11/19/2012) 

83. Medicaid Statistical Information System (CMS-R-284; comments due 11/19/2012) 

3.c. DME Certificate of Medical Necessity (CMS-846-849, 10125, 0126; comments due 11/23/2012) 

88. Early Retiree Reinsurance Program Survey (CMS-10408; comments due 11/27/2012) 

95. Indian Health Service Forms to Implement Privacy Rule (IHS-810, etc.; comments due 11/30/2012 approx.) 

11.d. Medicare Bid Pricing Tool (CMS-10142; comments due 12/4/2012) 

11.f. Medicare PDP Benefit Package Formulary (CMS-R-262; comments due 12/4/2012) 

11.c. Outcome Measures for Quality Assessment in Medicare Advantage and Special Needs Plans (CMS-10451; comments due 12/26/2012) 

11.g. Medicare Advantage Reporting Requirements (CMS-10261; comments due 12/26/2012) 

94. Methodology for Designation of Frontier and Remote Areas (HRSA/no ref. #; comments due 1/4/2013) 

4.b. Hospital Outpatient and Ambulatory Service Center Payment Systems (CMS-1589-FC; comments due 1/12/2013 approx.) 

70.a. Medicare Physician Fee Schedule Rule (CMS-1590-FC; comments due 1/13/2013 approx.) 

96. IHS New System of Records (IHS/no ref. #; comments due 12/13/2012) 

Comments recently submitted by NIHB, TTAG and/or other tribal organizations– 

80. Notice of Denial of Medical Coverage (or Payment) (CMS-10003: comments submitted 11/6/2012) 

66. Requirements for Charitable Hospitals: Proposed Rule (IRS-130266-11; comments submitted 9/24/2012) 

1 “Health reform” is inclusive of (1) the Patient Protection and Affordable Care Act (Pub. L. 111-148), incorporating by reference S. 1790 as reported by the 

Committee on Indian Affairs of the Senate in December 2009 (containing amendments to the Indian Health Care Improvement Act, IHCIA), and as amended by 

the Health Care and Education Reconciliation Act (HCERA; Public Law 111–152) (collectively referred to as “ACA”) and (2) the American Recovery and 

Reinvestment Act of 2009 (ARRA, Pub. L. 111-5) 

2 The analyses and recommendations may include those made by the Tribal Technical Advisory Group to CMS (TTAG) and other tribal organizations. 

National Indian Health Board, Regulation Review and Impact Analysis Report Page 2 of 3 11/12/2012

64. Policy on Conferring with Urban Indian Organizations: Request for Comments (No ref #; comments submitted by ANTHC and NCUIH 

9/23/2012) 

65. Health Care Reform Insurance Web Portal Requirements (CMS-10320; submitted 9/13/2012) 

Regulations under OMB (Office of Management and Budget) review – 

92. Insurance Market Rules (CMS-9972-P; sent to OMB 11/8/2012) 

31.d. Standards Related to Health Benefits (CMS-9980-P; sent to OMB 11/8/2012) 

81. Part II--Regulatory Provisions To Promote Program Efficiency, Transparency, and Burden Reduction (CMS-1367-P; sent to OMB 8/2/2012) 

Recent (final) rules issued – 

71.a. Physician Fee Schedule, ESRD, Bad Debt, etc (CMS-1352-F; issued 11/9/2012) 

52. Home Health Prospective Payment System Rate for CY2013 (CMS-1358;F; issued 11/8/2012) 

44. Medicaid Payment for Primary Care Services and Charges for Vaccine Administration: Proposed Rule (CMS-2370-P; issued 11/6/2012) 

1.b. MU EHR Incentive Payments--Stage 2 (CMS-0044-F; issued 9/4/2012; corrections issued 10/23/2012) 

Contacts: Jennifer Cooper (JCooper@nihb.org); Liz Heintzman (EHeintzman@nihb.org) 


RRIAR 

Ref. 

# 

1.a. 

1.b. 

Short Title/ 

Current Status of Regulation/ 

Title/ 

Agency 

MU EHR Incentive Payments 

ACTION: Proposed Final Rule 

NOTICE: Medicare and Medicaid 

Programs; Electronic Health 

Record (EHR) Incentive Program 

AGENCY: CMS 

MU EHR Incentive Payments-- 

Stage 2 



Programs; Electronic Health 

Record Incentive Program Stage 2 

AGENCY: CMS 

TABLE A: REGULATIONS INCLUDED TO DATE IN RRIAR TABLES B AND C 

UPDATED THROUGH 11/09/2012 

File Code 

CMS-0033-P F 

CMS_ FRDOC_ 

0001-0520 

CMS-0044-PF 

CMS-0044- 

CN2 

Dates (Issue, Due, File, 

Subsequent Action) 

SECTION I: MEDICAID (AND DUAL 

MEDICAID AND MEDICARE) 

In Table B-- 

Is the summary of 

Agency action 

included? 

Is the NIHB analysis 

included? 

Beginning on page 1 of 38 

SECTION II: MEDICARE Beginning on page 9 of 38 

Section III: Health Reform Beginning on page 23 of 38 

Section IV: Other Beginning on page 36 of 38 

SECTION I: MEDICAID (AND DUAL 

MEDICAID AND MEDICARE) 

Issue Date: 1/13/2010 

Due Date: 3/15/2010 

NIHB File Date: Pre-2/15/2010 

Date of Subsequent Action, if any: 

Issued Final Rule 7/28/2010; 

issued correction 12/29/2010 

Additional: NIHB/TTAG provided 

analysis 2/03/2011; 5/23/2011; 

7/05/2011; 12/14/2011 

Issue Date: 3/7/2012; 

Due Date: 5:00 pm, 5/7/2012 

NIHB File Date: 5/7/2012 


Issued correction 4/18/2012; 

issued Final Rule 9/4/2012; 

issued correction 10/23/2012 

Summary of Agency 

action: √ 

NIHB analysis of 

action: √ 


action: √ 


action: [To be 

entered.] 

In Table C-- 

Is the list of NIHB 

recommendations included? 

Has the Agency taken subsequent 

action? 

Is an analysis of subsequent 

Agency action included? 

NIHB recommendations included: √ 

Subsequent Agency action: √ 

Analysis of Agency action: √ 

NIHB recommendations included: To 

be entered. 

Subsequent Agency action: [To be 

entered.] 

Analysis of Agency action: [To be 

conducted and entered.] 

: regulation review complete : reg. currently under review : regulation release pending 

Page 1 of 38

RRIAR 

Ref. 

# 

1.c. 

8. 

9. 

13. 

Short Title/ 


Title/ 

Agency 

HIT Revised Standards--CMS 

EHR Program 


NOTICE: Health Information Tech.; 

Revised Standards, Implementation 

Specs and Cert. Criteria for EHRs 

AGENCY: ONC, HHS 

Sec. 1115 Waiver Transparency 


NOTICE: Medicaid; Review/App. 

Process for Sec. 1115 Demo’s 

AGENCY: CMS 

Med/Med Provider Survey 

ACTION: Final Rule w/Comments 

NOTICE: Medicare, Medicaid, and 

CHIP Programs; Additional 

Screening Requirements, App. Fee 

AGENCY: CMS 

Provider Complaint Filing 

ACTION: Proposed Rule 

NOTICE: Medicare & Medicaid 

Providers & Suppliers to notify 

beneficiaries of the right to file 

written complaint with QIO 

AGENCY: CMS 



File Code 

HHS 

RIN 0991- 

AB82 




Due Date: 5:00 pm, 5/7/2012 

NIHB File Date: None 

Date of Subsequent Agency 

Action, if any: Issued Final Rule 

9/4/2012 

CMS-2325-PF Issue Date: 9/17/2010 

Due Date: 11/16/2010 




2/27/2012 

CMS-6028-FC Issue Date: 9/23/2010 

Due Date: 11/16/2010 



Action, if any: 2/1/2011 

Additional: NIHB provided 

CMS-3225-P 

RIN 0938- 

AP94 

examples of hardship 3/25/11 


Due Date: 4/4/2011 



action, if any: Sent Final Rule 

to OMB for review 6/2/2011 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: √ 

TTAG analysis of 

action: √ 


action: √ 


action: √ 


action: √ 


action: √ 

In Table C-- 




action? 



NIHB recommendations included: 

Subsequent Agency action: 

Analysis of Agency action: 

TTAG recommendations included: √ 


Analysis of Agency action: To be 

entered. 





Subsequent Agency action: None as 

of 5/31/2011. 


: regulation review complete : regulation currently under review : regulation release pending 


RRIAR 

Ref. 

# 

16.a. 

16.b. 

17. 

Short Title/ 


Title/ 

Agency 

New Medicaid Community First 

Choice Option 


NOTICE: Community First Choice 

Option 

AGENCY: CMS 

Medicaid HCBS Waivers 


NOTICE: Medicaid; State Plan 

Home and Community-Based 

Services, 5-Year Period for 

Waivers, Provider Payment 

Reassignment; Setting 

Requirements 

AGENCY: CMS 

Assuring Access to Covered 

Services 

ACTION: Request for Information 

NOTICE: Opportunities for 

Alignment Under Medicaid and 

Medicare 

AGENCY: CMS 



File Code 

CMS-2337-PF 

RIN 0938- 

AQ35 




Due Date: 4/26/2011 




CMS-2249-P2 Issue Date: 5/3/2012 

Due Date: 7/2/2012 (corrected) 



Action, if any: 

CMS-5507-NC 


Due Date: 7/11/2011 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: None. 


action: √ 


action: √ 

In Table C-- 




action? 





Analysis of Agency action: In 

progress. 




NIHB recommendations included: No 

recommendations submitted 





RRIAR 

Ref. 

# 

20. 

23. 

26. 

28.a. 

Short Title/ 


Title/ 

Agency 

Assuring Access to Services 


NOTICE: Medicaid Program; 

Methods for Assuring Access to 

Covered Medicaid Services 

AGENCY: CMS 

Request for Approval of 

Medicaid and CHIP Standard 

Forms 

ACTION: Request for Comment 

NOTICE: Clearance for Medicaid 

and CHIP State Plan, Waiver, and 

Program Submissions 

AGENCY: CMS 

Medicaid Home Health 


NOTICE: Medicaid Program; Faceto-Face 

Requirements for Home 

Health Services; Policy Changes 

and Clarifications Related to HH 

AGENCY: CMS 

Medicaid Eligibility Under ACA 


NOTICE: Medicaid; Eligibility 

Changes Under the ACA 

AGENCY: CMS 



File Code 

CMS-2328-P 




Due Date: 7/5/2011 

NIHB File Date: 7/5/2011 (filed 

by ANHTC) 



CMS-10398 Issue Date: 7/1/2011 

Due Date: 8/30/2011 




CMS-2348-P Issue Date: 7/12/2011 

Due Date: 9/12/2011 



Action, if any: Issued Proposed 

Rule on home health payment 

rates 7/12/2011 (CMS-1353-P) 


Due Date: 10/31/2011 



Action, if any: Issued Final 

Rule 3/23/2012 (see 28.b.) 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: √ (Limited) 


action: √ 


action: None. 


action: √ 


action: √ 

In Table C-- 




action? 




(ANHTC recommendations) 




None. 




None. 






completed. 



RRIAR 

Ref. 

# 

28.b. 

34. 

40. 

41. 

Short Title/ 


Title/ 

Agency 

Medicaid Eligibility Under ACA 

ACTION: Interim Final Rule 

NOTICE: Medicaid; Eligibility 

Changes Under the ACA 

AGENCY: CMS 

Presumptive Eligibility 

ACTION: 

NOTICE: 

AGENCY: CMS 

State Plan Pages 

ACTION: Notice 

NOTICE: Medicaid State Plan Base 

Plan Pages 

AGENCY: CMS 

New Safe Harbors 

ACTION: Notice of Intent to 

Develop Regulations 

NOTICE: Solicitation of New Safe 

Harbors and Special Fraud Alerts 

AGENCY: HHS OIG 



File Code 



CMS-2349-IF Issue Date: 3/23/2012 

Due Date: 5:00 pm, 5/7/2012 




CMS-[TBD] Issue Date: [TBD] 

Due Date: [TBD] 

NIHB File Date: 



CMS-179 Issue Date: 12/29/2011 

Due Date: 2/14/2012 




OIG–120–N Issue Date: 12/29/2011 

Due Date: 5:00 pm, 2/27/2012 



Action, if any: None as of 

5/15/2012 

In Table B-- 


Agency action 

included? 


included? 


action: √ 



entered.] 


action: 


action: 


action: None. 


action: None. 


action: √ 



entered.] 

In Table C-- 




action? 




be entered. 










[To be entered.] 





RRIAR 

Ref. 

# 

43. 

44. 

46. 

61. 

Short Title/ 


Title/ 

Agency 

Medicaid Reimbursement for 

Outpatient Drugs 



Covered Outpatient Drugs 

AGENCY: CMS 

Medicaid Payment for Primary 

Care Services 


NOTICE: Payment for Primary 

Care Services under Medicaid 

Program 

AGENCY: CMS 

Medicaid DSH and Definition of 

Uninsured 



Disproportionate Share Hospital 

Payments--Uninsured Definition 

AGENCY: CMS 

Medicaid State Disallowance 

ACTION: Final Rule 

NOTICE: Medicaid and Children’s 

Health Insurance Programs; 

Disallowance of Claims for FFP and 

Technical Corrections 

AGENCY: CMS 



File Code 




Due Date: 5:00 pm, 4/2/2012 





Due Date: 5:00 pm, 6/11/2012 




11/6/2012 

CMS-2315-P 


Due Date: 5:00 pm, 2/17/2012 




4/30/2012 

CMS-2292-F Issue Date: 5/29/2012 

Due Date: None 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: None. 


action: √ 


action: √ 


action: √ 


action: None. 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

62. 

65. 

66. 

Short Title/ 


Title/ 

Agency 

Medicaid State Disallowance 


NOTICE: External Quality 

Review Protocols 

AGENCY: CMS 

Health Care Reform Insurance 

Web Portal Requirements 

ACTION: Request for comment 

NOTICE: Health Care Reform 

Insurance Web Portal 

Requirements 

AGENCY: CMS 

Requirements for Charitable 

Hospitals 


NOTICE: Additional Requirements 

for Charitable Hospitals 

AGENCY: IRS 



File Code 



CMS-R-305 Issue Date: 5/31/2012 

Due Date: 7/2/2012 




CMS-10320 Issue Date: 8/15/2012 

Due Date: 9/13/2012 

NIHB (TTAG and ANTHC) File 

Date: 9/13/2012 



IRS-130266-11 Issue Date: 6/26/2012 

Due Date: 9/24/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: √ 


action: √ 



entered.] 

In Table C-- 




action? 






TTAG and ANTHC recommendations 

included: [To be entered.] 



TTAG / NIHB recommendations 






RRIAR 

Ref. 

# 

83. 

84. 

85. 

86. 

Short Title/ 


Title/ 

Agency 

Medicaid Statistical Information 

System 


NOTICE: Medicaid Statistical 

Information System 

AGENCY: CMS 

Monthly State File of Dual 

Eligible Enrollees 


NOTICE: Monthly State File of 

Medicaid/Medicare Dual Eligible 

Enrollees 

AGENCY: CMS 

Medicaid Incentives for 

Prevention of Chronic Diseases 


NOTICE: Minimum Data Set for 

MIPCD Program Grantees 

AGENCY: CMS 

Community Health Accreditation 

Program for Hospices 

ACTION: Final Notice 


CHAP for Continued Deeming 

Authority for Hospices 

AGENCY: CMS 



File Code 



CMS-R-284 Issue Date: 8/15/2012 

Due Date: 10/15 11/19/2012 

NIHB File Date: Under review. 


Issued extension without change 

10/19/2012 

CMS-10143 Issue Date: 9/17/2012 

Due Date: 11/16/2012 




CMS-10444 Issue Date: 10/19/2012 

Due Date: 11/19/2012 

NIHB File Date: Under review 



CMS-3266-FN Issue Date: 10/19/2012 





In Table B-- 


Agency action 

included? 


included? 


action: To be entered. 


action: 



entered.] 


action: 



entered.] 


action: 



entered.] 


action: 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

87. 

2.a. 

2.b. 

Short Title/ 


Title/ 

Agency 

Medicare and Medicaid Quarterly 

Listing of Program Issuances 



Quarterly Listing of Issuances— 

July through September 2012 

AGENCY: CMS 

I/T/U Addendum to Medicare 

Prescription Drug Plans (PDP): 

Revision of Current Collection 

ACTION: Information Collection 

NOTICE: Agency Information 

Collection Activities: Proposed 

Collection; Comment Request 

AGENCY: CMS 

I/T/U Addendum to Medicare 

Prescription Drug Plans (PDP) 

ACTION: Information Collection 

NOTICE: Information Collection 

Activities: Comment Request 

AGENCY: CMS 



File Code 

CMS-9075-N 

CMS-10137 

and CMS- 

10237 

CMS-10137 








SECTION II: MEDICARE 


Due Date: 8/10/2010 


Date of Subsequent Agency Action, 

if any: Issued revised “Medicare 

PDP Sponsor contracts with 

Revised I/T/U Addendum” pre- 

1/13/2011 

Additional: Issued revised 2013 

contracts 7/1/2011 (see 2.b.) 


Due Date: 8/30/2011 




In Table B-- 


Agency action 

included? 


included? 




action: 


action: √ 


action: √ 


action: √ 


action: √ 

In Table C-- 




action? 






From Review of 2011 Docs 









RRIAR 

Ref. 

# 

2.c. 

2.d. 

3.a. 

Short Title/ 


Title/ 

Agency 

Medicare Advantage and PDP 

Data Requirements 


NOTICE: Application for New and 

Expanding Medicare Prescription 

Drug Plans and Medicare 

Advantage Prescription Drug (MA- 

PD) Plans, including Cost Plans 

and Employer Group Waiver Plans 

AGENCY: CMS 


Plan Applications 


NOTICE: Part C Medicare 

Advantage and 1876 Cost Plan 

Expansion Application 

AGENCY: CMS 

Medicare Part B Rates 


NOTICE: Medicare Program; 

Payment Policies Under the 

Physician Fee Schedule and Other 

Revisions to Part B for CY 2011 

AGENCY: CMS 



File Code 



CMS-10137 Issue Date: 7/6/2012 

Due Date: 9/4/2012 




CMS-10237 

and CMS- 

10137 

CMS-2010- 

0205-0002 

Issue Date: 10/12/2012 

Due Date: 11/13/2012 





Due Date: 8/24/2010 




11/29/2010 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 



entered.] 



entered.] 


action: √ 


action: None. 

In Table C-- 




action? 














RRIAR 

Ref. 

# 

3.b. 

3.c. 

4.a. 

Short Title/ 


Title/ 

Agency 

DME Competitive Bidding 


NOTICE: Durable Medical 

Equipment, Prosthetics, Orthotics, 

and Supplies (DMEPOS) 

Competitive Bidding Program 

AGENCY: CMS 

Durable Medical Equipment 

Certificate of Medical Necessity 


NOTICE: DME Medicare 

Administrative Contractor CMN and 

Supporting Documentation 

Requirements 

AGENCY: CMS 

Medicare Outpatient Rates 


NOTICE: Medicare Program: 

Proposed changes to the Hospital 

Outpatient Prospective Payment 

System and CY 2011 Rates, etc. 

AGENCY: CMS 



File Code 

CMS-10169 

CMS-846-849, 

10125, and 

10126 

CMS-2010- 

0205-0002 




Due Date: 8/27/2012 





Due Date: 11/23/2012 





Due Date: 8/31/2010 




11/24/2010 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 



entered.] 


action: 


action: √ 


action: None. 

In Table C-- 




action? 














RRIAR 

Ref. 

# 

4.b. 

5. 

10.a. 

10.b. 

Short Title/ 


Title/ 

Agency 

Medicare Outpatient Rates 


NOTICE: Medicare Program: 

Revisions to hospital outpatient 

prospective and ambulatory 

surgical center payment systems; 

CY 2013 rates, etc. 

AGENCY: CMS 

PACE Information Request 


NOTICE: Medicare and Medicaid; 

Programs of All-Inclusive Care for 

the Elderly (PACE) 

AGENCY: CMS 

ACO Standards 


NOTICE: Medicare; Request for 

Info. Regarding Accountable Care 

Organizations (ACOs) and 

Medicare Shared Saving Program 

AGENCY: CMS 

ACO Standards 



Shared Savings Program: ACOs 

AGENCY: CMS 



File Code 

CMS-1589- 

PFC 

CMS-2010- 

0222-0001 

CMS-R-244 




Due Date: 9/4/2012 




11/15/2012 (scheduled) 

Due Date for Final Rule 

Comments: 60 days (approx.. 

1/12/2013) 


Due Date: 9/28/2010 




CMS-1345-NC Issue Date: 11/17/2011 

Due Date: 12/3/2011 



Action, if any: 3/31/2011 (see 

10.b.) 

CMS-1345-P F Issue Date: 3/31/2011 

Due Date: 5:00 pm, 6/6/2011 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: None. 


action: √ 


action: None. 


action: √ 


action: √ 

In Table C-- 




action? 










Subsequent Agency action: See 10.b 

below. 







RRIAR 

Ref. 

# 

11.a. 

11.b. 

11.c. 

11.d. 

Short Title/ 


Title/ 

Agency 

Revisions to PDP Requirements 



Proposed Changes to MA and the 

Medicare PDP for Contract Year 

2012 and Other Proposed Changes 

AGENCY: CMS 



NOTICE: Policy and Technical 

Changes to Medicaid Advantage 

and PDP for CY 2013 

AGENCY: CMS 

Quality in Medicare Advantage 

and Special Needs Plans 


NOTICE: Evaluation and 

Development of Outcome 

Measures for Quality Assessment 

in MA Plans and SNPs 

AGENCY: CMS 

Bid Pricing Tool 


NOTICE: BPT for Medicare 

Advantage and Prescription Drug 

Plans 

AGENCY: CMS 



File Code 

CMS-4144-F 

CMS-4157-F 



Issue Date: 11/22/2010 

Due Date: 1/11/2011 (changed 

from 1/22/2011) 




4/15/2011 






CMS-10451 Issue Date: 10/26/2012 

Due Date: 12/26/2012 




CMS-10142 


Due Date: 12/4/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: 



entered.] 


action: 



entered.] 


action: 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

11.e. 

11.f. 

11.g. 

Short Title/ 


Title/ 

Agency 

Medicare Advantage Quality 

Bonus Payment Demonstration 


NOTICE: Medicare Advantage 

Quality Bonus Payment 

Demonstration 

AGENCY: CMS 

Plan Benefit Package and 

Formulary Submission 


NOTICE: PBP and Formulary 

Submission for Medicare 

Advantage and Prescription Drug 

Plans 

AGENCY: CMS 

Medicare Advantage Reporting 

Requirements 


NOTICE: Part C Medicare 

Advantage Reporting Requirements 

and Supporting Regulations in 42 

CFR 422.516(a) 

AGENCY: CMS 



File Code 

CMS-10445 

CMS-R-262 




Due Date: 11/16/2012 





Due Date: 12/4/2012 




CMS-10261 Issue Date: 10/26/2012 

Due Date: 12/26/2012 




In Table B-- 


Agency action 

included? 


included? 







entered.] 


action: 



entered.] 


action: 

In Table C-- 




action? 




included: 











RRIAR 

Ref. 

# 

18. 

19. 

21. 

Short Title/ 


Title/ 

Agency 

eRx Incentive Program 



Proposed Change to the Electronic 

Prescribing Incentive Program 

AGENCY: CMS 

Value-Based Purchasing 



Hospital Inpatient Value-Based 

Purchasing 

AGENCY: CMS 

Medicare Outpatient Rates and 

Other Provider-Related Issues 


NOTICE: Medicare and Medicaid: 

Hospital Outpatient Prospective 

Payment; Ambulatory Surgical 

Center; Hospital Value-Based 

Purchasing Program, etc. 

AGENCY: CMS 



File Code 

CMS-3248-P 

CMS-3239-F 

CMS-1525- 

PFC 

RIN 0938- 

AQ26 




Due Date: 7/25/2011 










Due Date: 8/30/2011 



Action, if any: 11/1/2011; issued 

correction 4/24/2012 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: √ 


action: √ 


action: √ 

In Table C-- 




action? 







comments/recommendations made. 




None. 





RRIAR 

Ref. 

# 

22. 

24. 

25.a. 

Short Title/ 


Title/ 

Agency 

Medicare Physician Rates 



Payment Policies Under the 

Physician Fee Schedule and Other 

Revisions to Part B for CY 2012 

AGENCY: CMS 

Transportation Barriers Study 

under Medicare for AI/AN 

ACTION: Information Request 

NOTICE: Analysis of Transportation 

Barriers to Utilization of Medicare 

Services by AI/AN Medicare Bene’s 

AGENCY: CMS 

Medicare Inpatient Rates 


NOTICE: Medicare; Hospital 

Inpatient PPPS for Acute Care 

Hospitals and the LTC Hospital 

PPS and Fiscal Year 2011 Rates 

AGENCY: CMS 



File Code 

CMS-1524-P 

RIN 0938- 

AQ25 




Due Date: 8/30/2011 




CMS-10399 Issue Date: 7/1/2011 

Due Date: 8/30/2011 



Action, if any: Issued Notice 

12/14/2011; issued Notice 

4/18/2012 

CMS-1518-P 


Due Date: 6/20/2011 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: √ 


action: √ 


action: Partial. 

In Table C-- 




action? 




None 







None. 





RRIAR 

Ref. 

# 

25.b. 

32. 

49.a. 

49.b. 

Short Title/ 


Title/ 

Agency 

Medicare Inpatient Rates 


NOTICE: Medicare; Hospital 

Inpatient and LTC PPS and FY 

2013 Rates; Hospital GME 

Payments; Quality Reporting 

Requirements for ACS and others 

AGENCY: CMS 

Bundled Payments 

ACTION: Request for 

Applications 

NOTICE: Bundled Payments for 

Care Improvement Initiatives 

AGENCY: CMS 

Reporting and Returns of 

Medicare Overpayments 


NOTICE: Medicare; Reporting and 

Returning of Overpayments 

AGENCY: CMS 

Medicare Credit Balance 

Reporting Requirements 


NOTICE: Medicare Credit Balance 

Reporting Requirements and 

Supporting Regulations 

AGENCY: CMS 



File Code 

CMS-1588-PF 

CMS-1588- 

CN2 & CN3 

CMS-1588-F2 




Due Date: 5:00 pm, 6/25/2012 




8/31/2012; issued correction 

10/17/2012 and 10/29/2012 

CMS-5504-N Issue Date: 8/25/2011 

Due Date: 10/06/2011 and 

11/18/2011 





Due Date: 5:00 pm, 4/16/2012 




CMS-838 


Due Date: 11/16/2010 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 

Summary of 

Subsequent Agency 

action: √ 


action: √ 


action: None. 


action: √ 


action: None. 



entered.] 


action: 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

52.a. 

52.b. 

52.c. 

57. 

Short Title/ 


Title/ 

Agency 

Medicare Home Health Access 

ACTION: Information Request 

NOTICE: Surveys of Physicians 

and Home Health Agencies to 

Assess Access Issues for Specific 

Med. Beneficiaries in ACA §3131(d) 

AGENCY: CMS 

Medicare Home Health Payments 


NOTICE: Medicare; Revisions to 

Home Health Prospective Payment 

System Rate Update for CY 2013, 

Hospice Quality Reporting 

Requirements, etc. 

AGENCY: CMS 

Medicare Hospice Wage Index 



Hospice Wage Index for FY 2013 

AGENCY: CMS 

Durable Medical Equipment 


NOTICE: Durable Medical 

Equipment, Prosthetics, Orthotics, 

and Supplies Competitive Bidding 

Program 

AGENCY: CMS 



File Code 

CMS-10429 

and CMS- 

10185 




Due Date: 6/18/2012 





Due Date: 9/4/2012 




11/8/2012 


Due Date: 9/4/2012 




CMS-10169 Issue Date: 5/7/2012; 7/27/2012 

(revised) 

Due Date: 7/6/2012; 8/27/2012 

(revised) 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: None. 


action: √ 


action: None. 


action: √ 


action: None. 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

58. 

59. 

60.a. 

Short Title/ 


Title/ 

Agency 

Medicare Hospital Conditions of 

Participation 



Programs; Reform of Hospital and 

Critical Access Hospital Conditions 

of Participation 

AGENCY: CMS 

Medicare Provisions to Promote 

Efficiency 



Provisions to Promote Program 

Efficiency, Transparency and 

Burden Reduction 

AGENCY: CMS 

Health Insurance Common 

Claims Form--phase-out 

ACTION: Comment Request 




AGENCY: CMS 



File Code 









Due Date: None. 




CMS-1500 

(version 08/05) 

and CMS- 

1490S 


Due Date: 7/30/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: None. 


action: √ 


action: None. 

In Table C-- 




action? 














RRIAR 

Ref. 

# 

60.b. 

60.c. 

60.d. 

Short Title/ 


Title/ 

Agency 


Claims Form--phase-in 

ACTION: Comment Request 




AGENCY: CMS 


Claims Form 


NOTICE: Health Insurance 

Common Claims Form and 

Supporting Regulations at 42 CFR 

Part 424, Subpart C 

AGENCY: CMS 

Medicare Electronic Data 

Interchange Form 


NOTICE: Medicare EDI 

Registration and Enrollment Form 

AGENCY: CMS 



File Code 

CMS-1500 

(version 2/12) 

CMS-1500 

(02/12) and 

CMS-1500 

(08/05) 

CMS-10164 




Due Date: 7/30/2012 





Due Date: 10/22/2012 

NIHB File Date: None. 




Due Date: 11/16/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 



entered.] 


action: 



entered.] 


action: 

In Table C-- 




action? 











Analysis of Agency action: 49 



RRIAR 

Ref. 

# 

70.a. 

70.b. 

71.a. 

Short Title/ 


Title/ 

Agency 

Medicare PFS Rule 


NOTICE: Medicare: Revisions to 

payment policies under physician 

fee schedule, DME, face-to-face 

encounters, etc. 

AGENCY: CMS 

Medicare Fee-for-Service 

Prepayment Medical Review 


NOTICE: Medicare Fee-for-Service 

Prepayment Medical Review 

AGENCY: CMS 

Medicare PFS Rule 


NOTICE: Medicare Program; End- 

Stage Renal Disease Prospective 

Payment System, Quality Incentive 

Program, and Bad Debt Reductions 

for All Medicare Providers 

AGENCY: CMS 



File Code 

CMS-1590- 

PFC 




Due Date: 9/4/2012 


ANTHC File Date: 9/4/2012 



11/16/2012 (scheduled) 

Due Date for Final Rule 

Comments: 60 days (approx.. 

1/13/2013) 

CMS-10417 Issue Date: 9/21/2012 

Due Date: 10/22/2012 




CMS-1352-PF 


Due Date: 5:00 pm, 8/31/2012 




11/9/2012 

In Table B-- 


Agency action 

included? 


included? 


action: √ 

ANTHC analysis of 




entered.] 


action: 


action: √ 


action: None. 

In Table C-- 




action? 



ANTHC recommendations included: 

To be entered. 











RRIAR 

Ref. 

# 

71.b. 

72. 

73. 

Short Title/ 


Title/ 

Agency 

Medicare Beneficiaries with End- 

Stage Renal Disease 


NOTICE: Evaluation of Patient 

Satisfaction and Experience of 

Care for Medicare Beneficiaries 

with ESRD 

AGENCY: CMS 

Medicare Skilled Nursing Facility 

Payments 


NOTICE: Medicare: Prospective 

Payment System and Consolidated 

Billing for Skilled Nursing Facilities 

for FY 2013 

AGENCY: CMS 

Medicare Inpatient Psychiatric 

Rates 


NOTICE: Medicare: Inpatient 

Psychiatric Facilities Prospective 

Payment System--Update for Fiscal 

Year Beginning October 1, 2012 

(FY 2013) 

AGENCY: CMS 



File Code 

CMS-10425 

CMS-1432-N 




Due Date: 10/22/2012 














In Table B-- 


Agency action 

included? 


included? 



entered.] 


action: 


action: √ 


action: None. 


action: √ 


action: None. 

In Table C-- 




action? 














RRIAR 

Ref. 

# 

78. 

80. 

81. 

6.a. 

Short Title/ 


Title/ 

Agency 

Hospice Services 


NOTICE: Requirements for Longterm 

Care Facilities: Hospice 

Services 

AGENCY: CMS 

Notice of Denial of Medical 

Coverage (or Payment) 


NOTICE: Notice of Denial of 

Medical Coverage (or Payment) 

AGENCY: CMS, HHS 

Efficiency, Transparency, and 



NOTICE: Part II--Regulatory 

Provisions to Promote Program 

Efficiency, Transparency, and 


AGENCY: CMS, HHS 

High-Risk Pool Eligibility 


NOTICE: Pre-Existing Condition 

Insurance Plan Program 

AGENCY: OCIIO 



File Code 



CMS-3140-F Issue Date: [Pending at OMB as 

of 9/14/2012] 

Due Date: 




CMS-10003 Issue Date: 9/7/2012 

Due Date: 11/6/2012 

TTAG / NIHB File Date: 

11/6/2012 



CMS-1367-P Issue Date: 

[Pending at OMB since 

8/2/2012] 

Due Date: 




OCIIO-9995- 

IFC 

Section III: Health Reform 


Due Date: 9/28/2010 




4/15/2012 

In Table B-- 


Agency action 

included? 


included? 


action: 


action: None. 


action: √ 

TTAG / NIHB analysis 

of action: [To be 

entered.] 


action: 


action: 


action: √ 


action: √ 

In Table C-- 




action? 














Subsequent Agency action: none 




RRIAR 

Ref. 

# 

6.b. 

6.c. 

7.a. 

Short Title/ 


Title/ 

Agency 

Pre-Existing Condition Insurance 

Plan Program 


NOTICE: Pre-Existing Condition 

Insurance Plan Program 

AGENCY: CMS 

Pre-Existing Condition Insurance 

Plan Authorization 


NOTICE: : PCIP Authorization to 

Share Personal Health Information 

AGENCY: CMS 

ACA Exchange Rules 


NOTICE: Planning and 

Establishment of State-Level 

Exchanges; RfC Exchange-Related 

Provisions in Title I of the ACA 

AGENCY: OCIIO 



File Code 

CMS-9995- 

IFC2 




Due Date: 10/29/2012 




CMS-10428 Issue Date: 9/21/2012 

Due Date: 10/22/2012 




CIIO-9989-NC 

HHS-0S-2010- 

0021-0001 


Due Date: 10/4/2010 



Action, if any: 7/15/2011 (see 

7.b.) 

Additional: Issued Tribal 

Sponsorship and Indian 

Addendum 4/13/11 

In Table B-- 


Agency action 

included? 


included? 



entered.] 


action: 



entered.] 


action: 


action: √ 


action: √ 

In Table C-- 




action? 











(Partial previously √) 




RRIAR 

Ref. 

# 

7.b. 

7.c. 

7.d. 

Short Title/ 


Title/ 

Agency 

Establishment of Exchange/QHP 

ACTION: Proposed Final/Interim 

Final Rule 

NOTICE: Establishment of 

Exchanges/ Qualified Health Plans, 

Part 1 

AGENCY: HHS 

Exchange: Eligibility 

Determinations 


NOTICE: Exchange Functions: 

Eligibility Determinations; Employer 

Standards 

AGENCY: HHS 

Definition of Indian, Supplement 

to CMS-9989, 9974, 2349, and IRS 

REG-131491 


NOTICE: Cross-reg. response 

AGENCY: HHS and Treasury 



File Code 

CMS-9989-PF 

(with item 7.c.: 

CMS-9974-F) 

CMS-9974-PF 

(see item 7.b: 

CMS-9989-F) 

CMS-9989-P, 

CMS-9974-P, 

CMS-2349-P, 

and IRS REG- 

131491 (see 

7.b. and c.) 




Due Date: 10/31/2011 



Action, if any: 3/27/2012; issued 

correction 5/29/2012 

Due Date for Interim Final Rule 

Comments: 5:00 pm, 5/11/2012 


Due Date: 10/31/2011 




3/27/2012 


Due Date: 10/31/2011 




3/27/2012 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 

Summary of 

subsequent Agency 

action: √ 


action: √ 


action: √ 


action: √ 


action: √ 

In Table C-- 




action? 






NIHB IF recommendations included: 

None filed. 





Subsequent Agency action: √ (partial) 

Analysis of Agency action: Entered, 

in part. 



RRIAR 

Ref. 

# 

7.e. 

7.f. 

7.g. 

12.a. 

Short Title/ 


Title/ 

Agency 

Exchange: Cooperative 

Agreements 


NOTICE: Cooperative Agreement 

to Support Establishment of the 

Affordable Care Act’s Health 

Insurance Exchanges 

AGENCY: HHS 

Exchange: Blueprint Application 


NOTICE: Cooperative Agreement 

to Support Establishment of the 

Affordable Care Act’s Health 

Insurance Exchanges 

AGENCY: HHS 

Exchange: General Guidelines 


NOTICE: General Guidance on 

Federally-Facilitated Exchanges 

AGENCY: HHS 

Co-Op Plans (Sec. 1322 of ACA) 


NOTICE: Planning and 

Establishment of Consumer 

Operated and Oriented Plan 

Program 

AGENCY: OCIIO, HHS 



File Code 

CMS-10424 

CMS-10415 

CMS (no 

reference 

number) 

OCIIO-9983- 

NC 

RIN 0950- 

AA19 




Due Date: 6/18/2012 




Issue Date: 11/10/2011 

Due Date: 1/10/2012 





Due Date: 





Due Date: 3/4/11 



Action, if any: See 12.b. 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: None. 


action: √ 




action: √ 


action: √ 

In Table C-- 




action? 










be entered. 




recommendations submitted (NIHB 

issued paper prepared 4/12/11). 





RRIAR 

Ref. 

# 

12.b. 

14. 

15. 

27.a 

Short Title/ 


Title/ 

Agency 

Co-Op Plans (Sec. 1322 of ACA) 


NOTICE: Establishment of 

Consumer Operated and Oriented 

Plan (CO-OP) Program 

AGENCY: OCIIO, HHS 

ACA Waivers for State 

Innovation 


NOTICE: Application, Review, and 

Reporting Process for Waives for 

State Innovation Under Sec. 1332 

AGENCY: CMS/Treasury 

Delegation of Authority to CMS 

ACTION: Notice / Effective 

Immediately 

NOTICE: Office of the Secretary: 

Delegation of Authority; CMS 

AGENCY: HHS 

Risk Adjustment Standards in 

ACA 


NOTICE: ACA; Standards Related 

to Reinsurance, Risk Corridors and 

Risk Adjustment 

AGENCY: HHS 



File Code 

OCIIO-9983-P 

F 

CMS-9987-PF 

RIN 0938- 

AQ75 

FR 13553-01 

76 FR 13618 

DOCID: 

fr14mr11-74 




Due Date: 5:00pm, 9/16/2011 





Due Date: 5/13/2011 




2/27/2012 







Due Date: 10/31/2011 (revised) 




3/23/2012; issued correction 

5/17/2012 

In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: √ 


action: √ 


action: No response 

provided. 


action: √ 


action: √ 

Summary of 


action: √ 

In Table C-- 




action? 









entered. 









RRIAR 

Ref. 

# 

29. 

31.a. 

31.b. 

31.c. 

Short Title/ 


Title/ 

Agency 

Premium Subsidies and Tax 

Credits 


NOTICE: Health Insurance 

Premium Tax Credit 

AGENCY: IRS, Treasury 

Essential Health Benefits Bulletin 


NOTICE: Essential Health Benefits, 

HHS Informational Bulletin 

AGENCY: HHS 

Preventive Health Services 


NOTICE: Group Health Plans and 

Health Insurance Issuers Relating 

to Coverage of Preventive Services 

AGENCY: HHS/IRS/DoL 

Certain Preventive Services 

ACTION: Advanced Notice of 

Proposed Rule Making 

NOTICE: Certain Preventive Health 

Services under the ACA 

AGENCY: HHS/ IRS/DoL 



File Code 

IRS REG- 

131491 

No reference 

number 

CMS-9992- 

IFC2 

CMS-9968- 

ANPRM 




Due Date: 10/31/2011 




Issue Date: 12/16/2011 

Due Date: 1/31/2012 



Action, if any: CMS issued FAQ 

on EHB 2/17/2012 

Issue Date: 7/19/2010; 8/3/2011 



Action, if any: Issued Bulletin 

2/10/2012 


Due Date: 6/19/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: √ 


action: √ 


action: None. 


action: √ 


action: None. 

In Table C-- 




action? 






prepared and entered. 


Subsequent Agency action: √ (partial) 


entered. 









RRIAR 

Ref. 

# 

31.d. 

33. 

37. 

38. 

Short Title/ 


Title/ 

Agency 

Standards Related to Essential 

Health Benefits 


NOTICE: Exchanges Part II— 


Health Benefits; Health Insurance 

Issuer and Exchange 

Responsibilities 

AGENCY: CMS 

Citizenship Documentation 

ACTION: 

NOTICE: 

AGENCY: CMS 

Performance Metrics for 

Medicaid and Exchange 

Eligibility & Enrollment 

ACTION: 

NOTICE: 

AGENCY: CMS 

Appeals 

ACTION: 

NOTICE: 

AGENCY: CMS 



File Code 

CMS-9980-P 



Issue Date: [Pending at OMB as 

of 11/8/2012] 

Due Date: 



















In Table B-- 


Agency action 

included? 


included? 


action: 


action: 


action: 


action: 


action: 


action: 


action: 


action: 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

39. 

42. 

45. 

47. 

Short Title/ 


Title/ 

Agency 

Basic Health Program 


NOTICE: State Flexibility to 

Establish a Basic Health Program 

under the ACA 

AGENCY: CMS 

Employer Minimum Value 

Standard 

ACTION: 

NOTICE: 

AGENCY: CMS/DoL 

Actuarial Value and Cost-Sharing 

ACTION: Pre-Rule Bulletin 

NOTICE: Draft Actuarial Value and 

Cost-Sharing Reductions Bulletin 

AGENCY: CMS 

HSA Eligibility and IHS 

Beneficiaries 


NOTICE: Health Savings Accounts 

Eligibility and IHS Beneficiaries 

AGENCY: Treasury/IHS 



File Code 




Due Date: 5:00 pm, 10/31/2011 




4/30/2012 

CMS 

RIN-0938- 

ZB08 

Notice 2012-14 

Issue Date: [TBD] 





Issue Date: Post-2/24/2012 





Issue Date: 2/2012 

Due Date: 4/30/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: 


action: 


action: √ 


action: √ 


action: √ 


action: √ 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

48. 

50.b. 

51. 

53. 

Short Title/ 


Title/ 

Agency 

Medical Loss Ratio 

Requirements 


NOTICE: Medical Loss Ratio 

Requirements under the Affordable 

Care Act--Notice Requirements 

AGENCY: CMS 

EHB and QHP Standards 


NOTICE: Data Collection to Support 


Health Benefits; Recognition of 

Entities for the Accreditation of 

Qualified Health Plans 

AGENCY: CMS 

Student Insurance Coverage 


NOTICE: Student Health Insurance 

AGENCY: CMS 

Certificates of Exemption 

ACTION: 

NOTICE: 

AGENCY: CMS 



File Code 







Action, if any: Issued correction 

5/17/2012 


Due Date: 7/5/2012 




7/20/2012 


Due Date: 



Future 

issuance 

referenced in 

CMS-9989-F 


Issue Date: [TBD] 

Due Date: 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: √ 


action: None. 


action: √ 


action: √ 


action: None. 


action: 


action: 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

54. 

56. 

63. 

64. 

Short Title/ 


Title/ 

Agency 

ESI Coverage Verification 


NOTICE: Employer-Sponsored 

Coverage Verification: Preliminary 

Informational Statement 

AGENCY: CMS 

Stop-Loss Insurance 


NOTICE: Request for Information 

AGENCY: CMS/IRS/DoL 

Health Care EFT Standards 

ACTION: Interim Final Rule with 

Request for Comment 

NOTICE: Administrative 

Simplification: Adoption of 

Operating Rules for Health Care 

Electronic Funds Transfers (EFT) 

and Remittance Advice Trans. 

AGENCY: HHS 

Policy on Conferring with Urban 

Indian Organizations 


NOTICE: Draft Policy on Conferring 

With Urban Indian Organizations 

AGENCY: IHS 



File Code 

CMS 

RIN: 0938- 

ZB09 



Issue Date: [OMB approved 

4/26/2012] 

Due Date: 





Due Date: 7/2/2012 



HHS 

RIN 0938- 

AR01 

No reference 

number 



Due Date: 10/9/2012 





Due Date: 9/10/2012 


Comments filed by NCUIH and 

ANTHC. 



In Table B-- 


Agency action 

included? 


included? 


action: 


action: 


action: √ 


action: None. 


action: √ 


action: None. 


action: √ 

ANTHC and NCUIH 

analysis of action: [To 

be entered.] 

In Table C-- 




action? 












NIHB recommendations included: [To 

be entered.] 





RRIAR 

Ref. 

# 

65. 

67. 

68. 

Short Title/ 


Title/ 

Agency 

Health Care Reform Insurance 

Web Portal Requirements 


NOTICE: Health Care Reform 

Insurance Web Portal 

Requirements 

AGENCY: CMS 

State Consumer Assistance 

Grants 


NOTICE: Revision of a currently 

approved collection; Consumer 

Assistance Program Grants 

AGENCY: CMS 

Security of Electronic Health 

Information 


NOTICE: Health Insurance Reform: 

Electronic Security Standards 

AGENCY: CMS 



File Code 



CMS-10320 Issue Date: 8/15/2012 

Due Date: 9/13/2012 




CMS-10333 Issue Date: 7/27/2012 

Due Date: 9/25/2012 




CMS-10149 Issue Date: 8/31/2012 

Due Date: 10/30/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: 


action: √ 


action: 

In Table C-- 




action? 



NIHB recommendations included: [To 

be entered.] 











RRIAR 

Ref. 

# 

69. 

77. 

88. 

Short Title/ 


Title/ 

Agency 

Data Elements for Exchange 

Application 


NOTICE: Data Collection to 

Support Eligibility Determinations 

for Insurance Affordability 

Programs and Enrollment through 

Affordable Insurance Exchanges, 

Medicaid and Children’s Health 

Insurance Program Agencies 

AGENCY: CMS 

Unique Plan Identifiers 


NOTICE: Adoption of a Standard 

for a Unique Health Plan Identifier; 

Addition to the National Provider 

Identifier Requirements; and a 

Change to the Compliance Date for 

the ICD-10 Medical Data Code Sets 

AGENCY: CMS 

Early Retiree Reinsurance 

Program Survey 


NOTICE: Early Retiree 

Reinsurance Program Survey of 

Plan Sponsors 

AGENCY: CMS 



File Code 

CMS-10440 

and CMS- 

10438 

CMS-0040-F 

CMS-0040-CN 




Due Date: 9/4/2012 








Action, if any: Issued correction 

10/4/2012 

CMS-10408 Issue Date: 9/28/2012 

Due Date: 11/27/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: √ 


action: √ 


action: None. 



entered.] 


action: 

In Table C-- 




action? 














RRIAR 

Ref. 

# 

89. 

90. 

91. 

Short Title/ 


Title/ 

Agency 

Notice of Benefit and Payment 

Parameters for 2014 


NOTICE: Patient Protection and 

Affordable Care Act Notice of 

Benefit and Payment Parameters 

for 2014 

AGENCY: CMS 

Adverse Benefit Determinations 

ACTION: Guidance 

NOTICE: Adverse Benefit 

Determinations and Final Internal 

Adverse Benefit Determinations for 

Beneficiaries in Non-Federal 

Governmental Health Plans 

AGENCY: CCIIO 

Waiting Period Limitation Under 

Public Health Service Act 

ACTION: Guidance 

NOTICE: Guidance on 90-Day 

Waiting Period Limitation under 

Public Health Service Act 

AGENCY: CCIIO 



File Code 



CMS-9964-P Issue Date: TBD 

Due Date: 




CCIIO (no 

reference 

number) 

CCIIO (no 

reference 

number) 







Due Date: 9/30/2012 




In Table B-- 


Agency action 

included? 


included? 


action: 


action: 


action: 


action: 


action: 


action: 

In Table C-- 




action? 














RRIAR 

Ref. 

# 

92. 

35. 

36. 

74. 

Short Title/ 


Title/ 

Agency 

Health Insurance Market Rules 


NOTICE: Patient Protection and 

Affordable Care Act Health 

Insurance Market Rules 

AGENCY: CMS 

Medical Child Support 

ACTION: 

NOTICE: 

AGENCY: CMS 

Transitional Medical Assistance 

ACTION: 

NOTICE: 

AGENCY: CMS 

Beat Down Blood Pressure 

Challenge 


NOTICE: Announcement of 

Requirements and Registration for 

Beat Down Blood Pressure 

Challenge 

AGENCY: ONC, HHS 



File Code 



CMS-9972-P Issue Date: [Pending at OMB as 

of 11/8/2012] 

Due Date: 




Section IV: Other 











ONC (no Issue Date: 3/23/2012 

reference Due Date: None 

number) NIHB File Date: None 



In Table B-- 


Agency action 

included? 


included? 


action: 


action: 


action: 


action: 


action: 


action: 


action: √ 


action: None. 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

75. 

76. 

82. 

93. 

Short Title/ 


Title/ 

Agency 

Indian Tribal Government Plan 


NOTICE: Determination of 

Governmental Plan Status 

AGENCY: IRS 

Tribal Self-Governance Program 

ACTION: New-Limited 

Competition 

NOTICE: Funding Opportunity: 

Tribal Self-Governance Program; 

Planning Cooperative Agreement 

AGENCY: IHS 

HIPAA Rules 


NOTICE: Modifications to the 

HIPAA Privacy, Security, 

Enforcement, and Breach 

Notification Rules 

AGENCY: Office of Civil Rights, 

HHS 

New Freedom Initiative 


NOTICE: New Freedom Initiative— 

Web-based Reporting System for 

Grantees 

AGENCY: CMS 



File Code 

IRS REG- 

133223-08 

HHS-2012- 

IHS-TSGP- 

0001 

HHS 

RIN 0945- 

AA03 




Due Date: 6/2012 





Due Date: 9/9/2012 




Issue Date: [Pending at OMB 

since 3/24/2012] 

Due Date: 




CMS-10161 Issue Date: 9/28/2012 

Due Date: 10/29/2012 




In Table B-- 


Agency action 

included? 


included? 


action: √ 


action: None. 


action: √ 


action: None. 


action: 


action: 



entered.] 


action: 

In Table C-- 




action? 

















RRIAR 

Ref. 

# 

94. 

95. 

96. 

97. 

Short Title/ 


Title/ 

Agency 

Methodology for Designation of 

Frontier and Remote Areas 


NOTICE: Methodology for Design. 

of Frontier and Remote Areas 

AGENCY: HRSA 

Indian Health Service Forms to 

Implement the Privacy Rule 


NOTICE: IHS Forms to Implement 

Privacy Rule (45 CFR Parts 160; 

164) 

AGENCY: IHS 

IHS New System of Records 


NOTICE: Privacy Act of 1974 

System of Records 

AGENCY: IHS 

Federal Employees Health 

Benefits Program Coverage 


NOTICE: Federal Employees 

Health Benefits Program Coverage 

for Certain Intermittent Employees 

AGENCY: OPM 



File Code 

HRSA (no 

reference 

number) 

IHS-810, 912- 

1, 912-2, 913, 

and 917 

IHS (no 

reference 

number) 

OPM 

RIN 3206- 

AM74 




Due Date: 1/4/2013 





Due Date: 60 days (approx. 

11/30/2012) 




Issue Date: 10/29/2012 

Due Date: 12/13/2012 




Issue Date: [Approved by OMB 

as of 11/6/2012] 

Due Date: 




In Table B-- 


Agency action 

included? 


included? 


action: 


action: 


action: 


action: 


action: 


action: 


action: 


action: 

In Table C-- 




action? 

















Mr. John n J. O'Brien 

Director, , Healthcare and Insuran nce 

U.S. Offi ice of Person nnel Manage ement 

1900 E Street, S NW, Room R 5532B B 

Washing gton, DC 204 415-0001 

Re: NIHB N Comm ments on Draf ft Multi-Stat te Plan Proggram 

Applicaation 

Dear Mr. . O'Brien: 

On behal lf of the National 

Indian n Health Bo oard 

Office of f Personnel Managemen M t (OPM) Dra 

comment ts are provid ded below as s well as in th 

1 , I am wwriting 

to suubmit 

commments 

on thee 

U.S. 

aft 2014 Muulti-State 

Plaan 

Program AApplication. 

. Our 

he attached ccomment 

temmplate. 

The Mul lti-State Plan n Program (Program) ( will w be criticcally 

importtant 

to ensurre 

that Ameerican 

Indians and a Alaska Natives N (AI/ /ANs) are ab ble to accesss 

affordable health insurrance 

througgh 

the 

Affordab ble Insurance e Exchanges s (Exchanges s). As discuussed 

below, , AI/ANs haave 

a federal right 

to health care at no cost c to them through the e Indian Heaalth 

Service, Tribes and Tribal progrrams, 

and urban 

Indian org ganizations (collectively 

( , the I/T/U oof 

the Indiann 

health systtem). 

Becauuse 

of 

this, they y are unlikely y to purchas se insurance products onn 

the Exchannges 

unless tthey 

can conntinue 

to receive 

care at no cost to them m, and do so at the Indiaan 

health carre 

provider oof 

their choicce. 

If 

they do not particip pate in the Exchanges, E AI/ANs willl 

not be abble 

to take aadvantage 

oof 

the 

1 Establish 

Del livered via electronic e traansmission 

Octo ober 22, 20122 

hed 40 years ag go, NIHB is an n inter-Tribal organization o thaat 

advocates onn 

behalf of Triibal 

governmennts 

for 

the provisi ion of quality health h care to all American Indians and AAlaska 

Natives. . NIHB is govverned 

by a Booard 

of 

Directors consisting c of a representative 

from each of 

the twelve Inndian 

Health SService 

(“IHS” ”) Areas. Eachh 

Area 

Health Boa ard elects a rep presentative to o sit on the NIH HB Board of DDirectors. 

In arreas 

where theere 

is no Area HHealth 

Board, Tri ibal governme ents choose a representative who communnicates 

policy information aand 

concerns of the 

Tribes in that area with h NIHB. Whe ether Tribes op perate their enntire 

health caare 

program tthrough 

contraacts 

or 

compacts with IHS und der Public La aw 93-638, th he Indian Selff-Determinatioon 

and Educattion 

Assistancce 

Act 

(“ISDEAA A”), or continue e to also rely on o IHS for deli ivery of some, or even most, of their healthh 

care, NIHB iis 

their 

advocate

premium tax credit assistance and cost-sharing exemptions Congress intended would be made 

available to improve health care outcomes for AI/AN people. 

To overcome this financial barrier to meaningful AI/AN access to the Exchanges, Tribal entities 

may choose to pay all or part of the premiums on behalf of designated AI/AN individuals. 

Tribes and Tribal organizations will be hesitant to do so unless the plans on the Exchanges are 

open to allowing them to make aggregated premium payments on behalf of their members, and 

the plans offer to include Indian health care providers in their provider networks. In addition, 

based on the successful experience under the Medicare Part D Program, we have found the use 

of a standard contract addendum that addresses Indian-specific issues to be critical to successful 

contracting by health plans with Indian health care providers. Our comments focus on designing 

the Program application criteria to ensure that the Multi-State Plans (MSPs) selected by OPM 

will allow Tribal entities to implement this solution for AI/AN people. 

Our comments request that the application criteria OPM establishes for the Program encourage 

MSP applicants to (1) demonstrate how they will offer to include Indian healthcare providers in 

their provider networks, (2) agree to use a standard contract addendum when contracting with 

Indian health care providers, and (3) allow Tribes, Tribal organizations and urban Indian 

organizations to make aggregated group payments of premiums on behalf designated individuals 

to the MSPs. These requests are consistent with the guidance provided by CMS in its Final 

Exchange Establishment Rule, “Patient Protection and Affordable Care Act; Establishment of 

Exchanges and Qualified Health Plans,” 77 Fed. Reg. 18346 (March 27, 2012), and with ongoing 

efforts by the CMS Center for Consumer Information and Insurance Oversight (CCIIO) to 

draft and issue a standard Indian addendum, thereby facilitating and encouraging Qualified 

Health Plans (QHPs) to contract with Indian health care providers. For OPM to foster these 

three measures (i.e., MSP contracting with Indian health care providers, use of a standard Indian 

addendum, and group payment of premiums on behalf of AI/ANs) is also fully consistent with 

advancing the Federal trust responsibility. 

OPM Has a Continuing Federal Trust Responsibility to Enable Meaningful AI/AN Access to 

the Federal Health Care Programs It is Charged with Administering 

The Federal government’s trust responsibility to provide health care services to Tribes originates 

in treaties and other agreements between Tribes and the United States, and has been consistently 

reaffirmed in numerous Acts of Congress, Executive Orders, regulations, and the ongoing course 

of dealings between the Federal government and Indian Tribal governments. The most recent 

reaffirmation of the unique responsibility was included in the 2010 amendments to the Indian 

Health Care Improvement Act in which Congress declared: 

“Congress declares that it is the policy of this Nation, in fulfillment 

of its special trust responsibilities and legal obligations to Indians-- 

(a) to ensure the highest possible health status for Indians 

National Indian Health Board Page 2 of 7 October 22, 2012

and urban Indians and to provide all resources necessary to effect 

that policy . . .” 2 . 

Although the Federal trust responsibility to provide health care to AI/ANs has been carried out in 

recent years by the Indian Health Service (as well as Tribes and Tribal organizations, operating 

under the Indian Self-Determination and Education Assistance Act (ISDEAA)), this 

responsibility is not limited to the Indian Health Service. Rather, it applies to the Federal 

government as a whole, and to each agency charged with administering federal health care 

programs. 

OPM has demonstrated itself as a model agency in administering the Federal trust responsibility 

in its implementation of the Federal Employees Health Benefits (FEHB) program option for 

Tribes. OPM's commitment to Tribal consultation and the resources required to getting the 

program up and running and available to Tribes across the country is to be commended. We 

hope that OPM will continue to administer the Federal trust responsibility in the Program with 

the same level of commitment, Tribal consultation and collaboration it has demonstrated with the 

FEHB program. 

The Unique Nature of the Indian Health System Creates Barriers to Accessing Exchange 

Benefits for American Indians and Alaska Natives 

American Indians and Alaska Natives have a right to health care at no cost to them, and AI/ANs 

who seek services from IHS and Tribal providers do not pay for those services directly. 

Consistent with the Federal trust responsibility, Congress has enacted laws that ensure that 

AI/ANs are not charged for participating in other federal health care programs. In Medicaid, 

CHIP and the Exchanges 3 , for example, there are no deductibles or co-pays for AI/ANs. 

Similarly, the ACA provides that AI/ANs are not subject to the penalties for failing to obtain 

insurance. 

Because AI/ANs can obtain care at no cost to themselves through the I/T/U, AI/ANs will be 

hesitant to purchase health insurance through the Exchanges. Yet Congress clearly intended 

Exchange coverage to be an additional vehicle for providing additional resources to the Indian 

health care system, and Congress encouraged AI/ANs to participate in the Exchange program 

when it exempted most AI/ANs from cost-sharing in the Exchanges. 

The Congressional Budget Office (CBO) estimates that the premium exchange subsidies for 

qualified individuals will total $1,017 billion over the 2012-2022 period. We estimate as many 

as 510,000 AI/ANs will qualify for exchange subsidies as their family income falls between 138 

and 400 percent of the Federal Poverty Level (FPL). These tax credits are only available through 

the Exchanges. 

2 25 U.S.C. § 1602. 

3 All AI/AN who receive their care through an I/T/U or contract health services are not subject to cost-sharing 

through the Exchanges. AI/AN with incomes below 300 percent of the Federal Poverty Level who receive care 

from any other provider are similarly exempt from cost-sharing in the Exchanges. 


Access to this benefit is critically important to the Indian health system, as it will provide access 

to the private insurance market that many AI/ANs could not otherwise afford, and create new 

third party sources of revenues for I/T/U, which are chronically underfunded with federal 

appropriated funds at only 55 percent of need. Without action by OPM and its sister agencies to 

remove barriers to access Exchanges by AI/ANs, however, these benefits will likely remain 

unclaimed by AI/AN people, and provide no relief to the chronic health care disparities between 

AI/ANs and the general population. 

OPM Has an Opportunity to Implement the Program to Reduce Barriers to AI/AN Access to 

the Exchanges 

OPM has a unique opportunity to further reduce impediments to AI/ANs’ timely access to 

comprehensive health care services by lowering barriers to Exchange coverage by AI/ANs and in 

the process create positive and lasting change in the health care of AI/AN people. As outlined 

above, there are three critical steps for achieving this goal: (1) encourage MSPs to contract with 

I/T/U; (2) facilitate the use of a standard Indian addendum when contracting with I/T/U; and (3) 

require MSPs to accept aggregate payment of premiums on behalf of AI/ANs. 

Tribal Sponsorship 

Because AI/ANs have little incentive to purchase insurance products on the Exchanges when 

they otherwise have a right to free care through the I/T/U system, many Tribes and Tribal 

organizations may choose to pay all or part of the unsubsidized portion of the premium payment 

on behalf of their members. In the final rule on Exchange establishment, CMS confirmed that an 

“Exchange may permit Indian Tribes, Tribal organizations and urban Indian organizations to pay 

aggregated QHP [Qualified Health Plan] premiums on behalf of qualified individuals…” 45 

C.F.R. § 155.240(b). Similarly, in the Preamble to the Final Rule, CMS stated that “[w]e 

encourage Exchanges to include this [Tribal Sponsorship] option as part of its consultation with 

Tribal governments.” 77 Fed. Reg. 18310, 18338 (Mar. 27, 2012). 

We understand that the MSPs selected by OPM will operate in accordance with the rules of the 

Exchange in which they participate. For example, some Exchanges may permit premium 

payments from plan enrollees to be made through the Exchange, while others (such as those 

operated as Federally-facilitated Exchanges) will require payments to be made directly to the 

QHPs themselves. But, as provided for the Affordable Care Act, all Exchange enrollees have the 

right to make direct payments to QHPs. Likewise, OPM should ensure that any MSP selected 

be willing to permit Tribal entities to make aggregate payments for sponsored AI/ANs in each 

Exchange they operate. 

Inclusion of I/T/U in MSP Provider Networks 

Tribal entities are unlikely to make such premium payments on behalf of their members unless 

their Tribal health facilities can fully participate as in-network providers in the MSP provider 

networks. Although Section 206 of the Indian Health Care Improvement Act (IHCIA) allows 

I/T/U providers to bill health plans for services provided to the plan’s enrollees whether or not 

the I/T/U provider is in the plan’s network, it is preferable that the I/T/U be part of a plan’s 

network. Section 408 of the IHCIA provides that Federal health care programs like the Multi- 


State Plan Program must accept I/T/Us as in-network providers on the same basis as any other 

provider. Including I/T/U in MSP networks will facilitate coordination of care, minimize 

duplication of services, and provide greater certainty to the I/T/U providers in the timeliness and 

amount of payments. It will also significantly reduce the transaction costs that would be 

involved for each I/T/U to enforce its right to payment under Section 206 of the IHCIA. 

Accordingly, we request that OPM encourage plans that seek qualification as an MSP to offer to 

contract with I/T/U providers in their service areas. Inclusion of I/T/U providers should be 

central to demonstrating network adequacy for AI/AN people who are likely to have longstanding 

relationships with these providers who provide culturally competent care. 

The Draft 2014 Multi-State Plan Program Application (Application) requires MSPs to 

“Describe provisions for adequate choice for enrollees who are American 

Indians and for ensuring covered services from the Indian Health Service, 

as applicable” 

in demonstrating the adequacy of their provider networks. The Application also requires MSPs 

to 

“Describe your approach to ensuring compliance with 45 CFR 156.235, 

regarding Essential Community Providers in your network.” 

We are encouraged that OPM has proposed to ask potential MSPs to demonstrate their networks 

will provide adequate choice for AI/AN enrollees and to ensure continued coverage of services 

from the IHS. However, we believe this section of the application must be strengthened and 

made more precise if it is to have the desired effect. First, we note that it should cover American 

Indians and Alaska Natives, not just American Indians. Second, we note that health care services 

to AI/ANs are not only provided by the IHS, but also by Tribes, Tribal organizations and urban 

Indian organizations. Third, the only adequate choice for most AI/AN people is their local I/T/U 

provider. In many cases in Indian country, the only alternative health care option for AI/AN 

people is located hundreds of miles from Tribal population centers, leaving the I/T/U as the only 

practical option available. Even in more densely populated areas of the country, the I/T/U offers 

the only health care facility providing culturally competent care. Accordingly, because 

"adequate choice" for AI/AN people means the I/T/U of their choice, this requirement should be 

revised to explicitly require MSP applicants to describe provisions to offer to include I/T/U 

providers in their provider networks. 

To address these concerns, we recommend that the first of the two provisions above from the 

Application be amended, as follows: 

Describe provisions for adequate choice for enrollees who are American 

Indians or Alaska Natives and for ensuring these enrollees have access to 

covered services from the Indian Health Service, Tribal health programs, 

and urban Indian health programs, as applicable. 

We also note with approval that the draft application would require a plan to demonstrate 

compliance with 45 CFR 156.235 regarding essential community providers. I/T/Us are essential 


community providers for purposes of the final Exchange rule, and a “sufficient number and 

geographic distribution of essential community providers” must be included in any provider 

network for that reason as well. 

Use of a Standard Indian Addendum 

One impediment for I/T/U providers may be the standard contract language an MSP requires. 

Often, the standard contract language offered by health plans contains provisions that are 

inconsistent with federal Tribal rights. For example, many such contracts will impose a 

requirement that the provider demonstrate it has obtained sufficient insurance. I/T/Us are 

generally covered by the Federal Tort Claims Act, however, and should not be required to spend 

significant and unnecessary dollars purchasing private insurance that is duplicative of FTCA 

coverage simply to enter into a provider contract. Likewise, when health plans are informed of 

the applicability of various Indian-specific federal laws, their concerns are often addressed. 

The attached Addendum for Indian Health Care Providers has been developed to preemptively 

address these issues. It sets out federal laws that apply to provider contracts between I/T/Us and 

QHPs. We believe that use of this Indian Addendum will benefit both the plans and the Indian 

Health Care Providers by lowering perceived barriers to contracting, assuring compliance by the 

MSPs with key federal laws protecting I/T/Us, and minimizing potential disputes. 

HHS has recognized the merits of the use of such an Indian Addendum. In the preamble to the 

Final Rule on Exchange Establishment, HHS stated that: 

We recognize that furnishing QHP issuers with a standard Indian Addendum to a 

provider contract may make it easier for QHP issuers to contract with Indian 

providers. We note that QHP issuers may not be aware of the various Federal 

authorities that govern contracting with Indian health providers, and such an 

Addendum may lower the perceived barrier of contracting with Indian providers. 

We plan to develop a template for contracting between QHP issuers and Tribal 

health care providers. While we do not uniformly mandate that QHP issuers use 

the template, we believe that QHP issuers will find it in their interest to adopt 

such a template when contracting with Indian providers. We also note that 

Exchanges may elect to direct QHP issuers to use the Indian Addendum when 

contracting with Indian providers. 77 Fed. Reg. at 18423. 

CCIIO, the agency tasked with developing guidance and regulations on the Exchanges, is 

currently developing a standard Indian Addendum template. We further understand that CCIIO 

is preparing additional guidance that would encourage health plans to offer to contract with I/T/U 

using the Indian Addendum. We understand that this guidance may be released soon. We 

encourage OPM to ensure that the evaluation criteria OPM sets for the MSPs require or at the 

very least encourage plans in the strongest possible terms to offer to contract with I/T/U using 

the Indian Addendum. For your reference, we have attached a copy of a guide to the Indian 

Addendum we previously provided to CCIIO. Again, we strongly encourage OPM to make the 

attached Indian Addendum a part of OPM's 2014 Multi-State Plan Program Application along 

with the explanatory guide. 


The MSPs will be of particular importance to AI/ANs and I/T/Us across the country. Ultimately, 

the MSPs will be available in every state, regardless of how a state implements their Exchange 

and regardless of whether an Exchange is operated by a state or HHS. Consistent with that 

Federal trust responsibility, we urge OPM to ensure that any plan that seeks MSP designation be 

required to demonstrate how it will offer to contract with the I/T/U using the Addendum as a 

condition for participation as an MSP. 

Conclusion 

The Multi-State Plan Program provides an important opportunity to ensure that AI/AN people 

will be able to meaningfully participate in Exchange coverage options and take advantage of the 

federal health care funding offered only through the Exchanges. As discussed above and in the 

specific recommendations we have made in the attached comments template, we urge OPM to 

administer this federal health care program in a way that incentivizes AI/AN participation in the 

Exchanges while still allowing them to receiving culturally competent care at the I/T/U provider 

of their choice. OPM can accomplish this by requiring the MSPs to offer to enter into network 

provider contracts with I/T/Us using the attached Indian addendum, and to allow aggregate 

payment of premiums by Tribal entities on behalf of qualified AI/AN individuals. 

We appreciate the opportunity to provide comments on OPM's Draft 2014 Multi-State Plan 

Program Application. We would like to have further consultation with OPM on the issues raised 

in our comments and are available to provide additional information as may be necessary. You 

may contact Jennifer Cooper, NIHB Legislative Director at jcooper@nihb.org for further 

questions. 

cc: Yvette Roubideaux, IHS 

Stacy A. Bohlen, NIHB 

Susan McNally, OPM 

John Cutler, OPM 

Gary Cohen, CMS 

Peter Nakahata CCIIO 

Sincerely Yours, 


Chairperson, National Indian Health Board 



Centers for Medicare and Medicaid Services 

Office of Strategic Operations and Regulatory Affairs 

Division of Regulation Development 

Department of Health and Human Services 

Attention CMS-10445 / OCN: 0938-New 

Room C4-26-05 

7500 Security Boulevard 

Baltimore, MD 21244-1850 

Submitted via regulations.gov 

RE: Comments of CMS-10445; Survey regarding the Medicare Advantage Quality Bonus Payment 

Demonstration 

I write on behalf of the National Indian Health Board (NIHB) 1 , to the Centers for Medicare and Medicaid 

Services (CMS) regarding the request for comments on CMS-10445 / OCN 0938-New pertaining to the 

Paperwork Reduction Act (PRA) Notice on the survey of Medicare Advantage plans regarding the 

Medicare Advantage Bonus Payment Demonstration published in the Federal Register on September 17, 

2012 (Request for Comments). 2 We appreciate the opportunity to comment on the proposed survey. 

We provide below a limited set of recommended additions to the survey. 

Background 

CMS-10445 requests comments on the survey to be conducted of Medicare Advantage Organizations 

(MAOs) as part of an assessment of the MA Bonus Payment Demonstration. 

Under the Affordable Care Act (ACA), beginning in 2012, all plans earning four or five stars in Medicare’s 

Star Rating program will receive quality bonus payments (QBPs). As an extension of this legislation, CMS 

launched the Medicare Advantage Quality Bonus Payment Demonstration, which accelerates the phasein 

of QBPs by extending bonus payments to three-star plans and eliminating the cap on blended county 

1 Established 40 years ago, NIHB is an inter-Tribal organization that advocates on behalf of Tribal governments for the provision 

of quality health care to all American Indians and Alaska Natives. NIHB is governed by a Board of Directors consisting of a 

representative from each of the twelve Indian Health Service (“IHS”) Areas. Each Area Health Board elects a representative to 

sit on the NIHB Board of Directors. In areas where there is no Area Health Board, Tribal governments choose a representative 

who communicates policy information and concerns of the Tribes in that area with NIHB. Whether Tribes operate their entire 

health care program through contracts or compacts with IHS under Public Law 93-638, the Indian Self-Determination and 

Education Assistance Act (“ISDEAA”), or continue to also rely on IHS for delivery of some, or even most, of their health care, 

NIHB is their advocate 

2 77 Federal Register 57090, Comment Request, Medicare Advantage Quality Bonus Payment Demonstration, CMS-10445, 

September 17, 2012 (http://www.gpo.gov/fdsys/pkg/FR-2012-09-17/html/2012-22726.htm) 

Draft NIHB Comments on CMS-10445 Page 1 of 3

enchmarks that otherwise would limit QBPs. Through this demonstration, CMS seeks to understand 

how incentive payments impact plan quality across a broader spectrum of plans. 

Through a contractor, CMS will conduct a survey of MAOs and as many as 10 case studies of MAOs to 

supplement analyses of administrative and financial data for MAOs and environmental and literature 

scans. CMS requires this information collection to evaluate the QBP demonstration and better 

understand what impact the demonstration has had on MAO operations and their efforts to improve 

quality. Researchers will use a survey questionnaire designed to capture information on how MAOs 

perceive the demonstration and are planning for or implementing changes in quality initiatives and to 

identify factors that help or hinder the capacity to achieve quality improvement and that influence the 

decision calculus to make changes. For the case studies, researchers will hold a series of open-ended 

discussions with MAO staff guided by a discussion protocol. The case studies will supplement the 

information gathered from the survey and data analysis, providing context and details about successful 

quality improvement activities. 

Analysis 

The CMS survey is required of MAOs and will guide CMS in designing quality improvement efforts and 

requirements. The survey includes a question about the “main challenges to improving star ratings for 

your contract”, and the survey includes a question as to whether quality improvement efforts are 

focused on a particular population. The survey does not, though, explicitly query about the efforts 

undertaken by MAOs to meet the needs of these particular populations. For instance, and a particular 

concern for American Indians and Alaska Natives (AI/ANs), is whether MAOs seek to include culturally 

and linguistically competent providers in their networks in order to meet the needs of AI/ANs. 

Despite the remote locations of many AI/ANs, and compounded by the relatively low number of AI/ANs 

in most MAO service areas, there is typically not a great deal of attention paid to addressing the access 

needs of AI/ANs. Including a question in the survey seeking information on whether MAOs focus quality 

improvement efforts on particular beneficiary populations should produce useful information, as the 

survey currently does. But, the survey should also include a question soliciting information on what 

efforts are undertaken to address the needs of these beneficiary populations. Doing so – gathering 

information on whether MAOs make efforts to conduct quality improvement efforts with particular 

populations as well as identifying what those efforts are – should: 1) provide useful information for 

evaluating the Medicare Advantage Quality Bonus Payment Demonstration and 2) stimulate the MAOs 

to pay greater attention to these beneficiary populations. Combined, the information will indicate 

whether MAOs focus quality improvement efforts on AI/ANs and, if so, what those efforts are. 

Recommendations 

The proposed survey does seek information (in questions A2. and A2a.) on whether the MAOs focus 

quality improvement efforts on particular beneficiary populations. 

Recommendation: In question A2a. add the following two options – 


_________ American Indian or Alaska Native 

_________ Persons with English as a second language 

The proposed survey, though, does not include a question or provide an opportunity for survey 

respondents to include information on efforts to match particular beneficiary populations with 

particular providers that may be most responsive to these beneficiaries’ needs. 

Recommendation: Re-label A3 as A4, and adjust all subsequent numbering. Insert the following 

new questions as “A3.” and “A3a.”. 

A3. Have you worked to contract with providers that have cultural and linguistic competencies 

for the particular beneficiary populations you are targeting? _____ Yes ______ No 

A3a. If yes, which ones? 

_______ Federally-Qualified Health Centers 

_______ Indian Health Services or other Indian health care providers 

________ [ ] 

_______ Other: ________________________________________ 

Thank you for your attention to these recommendations. We appreciate the opportunity to provide 

comment on CMS-10445. We are available to provide additional information as may be necessary to 

fully consider our recommendations. 

Sincerely Yours, 


Chairman, National Indian Health Board 

Cc: Marilyn Tavenner, Acting Administrator, CMS 

Kitty Marx, Director of Tribal Affairs, CMS 

Dr. Yvette Roubideaux, Director, IHS 

Stacy Bohlen, Executive Director, NIHB 

H. Sally Smith, Chairwomen, MMPC 


Dear Governor: 

THE SECRETARY OF HEALTH AND HUMAN SERVICES 

WASHINGTON, D.C. 20201 

November 9,2012 

Over the past two years, we have worked together as many of you began building your new 

health insurance marketplaces. The hard work you have engaged in has laid the foundation for 

providing access to quality affordable coverage for millions of Americans. Consumers in all 

fifty states and the District of Columbia will have access to insurance through these new 

marketplaces on January 1, 2014, as scheduled, with no delays. 

This Administration is committed to providing significant flexibility for building a marketplace 

that best meets your state's needs. We intend to issue further guidance to assist you in the very 

near future. Funding is now available to you no matter where you are in the process of 

establishing an Exchange and no matter whether you plan to run your own Exchange, partner 

with another state, or work with the federal government. In response to your request, we 

previously announced that states have until the end of2014 to apply for these federal funds and 

have the flexibility to use such funds both for building Exchanges and for associated start-up 

costs provided that a state's Exchange is not yet self-sustaining. The next application deadline 

for Levelland Level 2 Exchange establishment grants is November 15,2012. I encourage you 

to take advantage of these additional resources. 

As the date approaches for submission of your Blueprint for Approval of State-based and State 

Partnership Exchanges, we have heard from many states that additional time would allow you to 

submit a more comprehensive, complete Blueprint application for your Exchange. 

The deadline for a Declaration Letter for a State-based Exchange remains Friday, November 16, 

2012. However, today, in order to continue to provide you with appropriate technical support if 

you are pursuing a State-based Exchange, HHS is extending the deadline for State-based 

Exchange Blueprint application submissions to Friday, December 14,2012. HHS will approve 

or conditionally approve the State-based Exchanges for 2014 by the statutory deadline of January 

1,2013. 

Additionally, if you are pursuing a State Partnership Exchange, we will accept Declaration 

Letters and Blueprint Applications and make approval determinations for State Partnership 

Exchanges on a rolling basis. The final deadline for both the Declaration Letter and Blueprint 

Application for State Partnership Exchanges that would be effective for 2014 has been extended 

to Friday, February 15,2013. And states will be able to apply to run Exchanges in subsequent 

years.


Page 2 

We are committed to providing you with the flexibility, resources, and technical assistance 

necessary to help you achieve successful implementation of your state's Exchange and look 

forward to continuing to work with you as we implement the health care law. 

Sincerely, 

Kathleen Sebelius

Tribal Consultation for Health Insurance Exchanges 

Survey Questions 

Please take a few minutes to fill out this questionnaire for the Tribal Self Governance 

Advisory Committee (TSAGC). In December 2012, States will submit their applications, 

or “blueprints,” to create a State Health Insurance Exchange or to become partners with 

the federal government in operating an Exchange. The federal government will ask 

States to explain how they consulted with Tribes in their planning process. We want to 

hear the perception of Tribes in every State, so we can compare it with what States are 

reporting. If your Tribe is in more than one State, please fill out a separate 

questionnaire for each State. We would like your response no later than December 20. 

Thank you for assisting us. 

1. Name of Tribe: __________________ 

2. Name of Person Responding to Survey: _______________________ 

3. Title of Person responding to survey: __________________________ 

4. E-mail address of person responding to survey: ___________________ 

5. State where Tribe is located: ___________________ 

If your Tribe is in more than one State, please fill out a separate questionnaire for 

each State. 

6. Which kind of Health Insurance Exchange are you expecting to have in your State: 

a. State Exchange 

b. Federally Exchange 

c. Partnership (Federally-Facilitated Exchange with State taking on some 

functions) 

d. Don’t know 

7. Has your Tribe been involved in Tribal Consultation on Exchanges? 

a. Yes at the State level 

b. Yes at federal level 

c. Not involved at either the State or federal level


Survey Questions Page 2 

Follow up: What is the main reason you have not been involved? 

8. If you wanted to be involved at the State level, do you have the name of a person 

working for the State who you could contact? 

a. Yes. Please give name: _______________________ 

b. No. 

9. Please check any of the following which describe your State’s Tribal consultation 

policy for health insurance exchanges: 

a. State has a Tribal consultation policy for the Health Insurance Exchange and 

Tribes helped to formulate the policy. 

b. State does not have a Tribal consultation policy specifically for Health 

Insurance Exchanges, but they have other policies for State government that 

require Tribal consultation for planning Exchanges. 

c. State is working on a Tribal consultation policy for the Exchange, but it has not 

been finalized. 

c. State does not have any Tribal consultation policies that cover Exchanges. 

d. Don’t know. 

10. Has your Tribe been invited to participate in any of the following: 

a. Meetings to discuss Health Insurance Exchange planning with Tribes Y/N 

b. Meetings to discuss Medicaid Expansion with Tribes. Y/N 

c. Individual discussions with Health Insurance Commissioner. Y/N 

d. Individual discussions with State planners for Exchange. Y/N 

e. State workgroups set up to plan Health Insurance Exchanges. Y/N 

f. Membership on the planning or governing body for Exchange. Y/N 

11. Has your Tribe been involved in discussions with the State on any of the following 

issues related to Health Insurance Exchanges: 

a. Essential Health Benefits Y/N


Survey Questions Page 3 

b. Indian Addendum and Qualified Health Plan (QHP) networks Y/N 

c. Eligibility and enrollment, including identification of American Indians and 

Alaska Natives Y/N 

d. Tribal sponsorship of premiums for individuals in Exchange Y/N 

e. Payment to I/T/U for services provided to enrolled individuals Y/N 

f. Design of website Y/N 

g. Navigators and in-person assisters Y/N 

h. Call centers Y/N 

12. How much do you agree with the following Statements: 

a. Our State interacts with Tribes as full partners during the design and 

implementation of the Health Insurance Exchange. 

Strongly agree/Agree/Disagree/Strongly Disagree/ No Answer 

b. Tribal consultation on Exchanges has ensured that the Health Insurance 

Exchange will meet the needs of Tribes in our State. 

13. Other comments: 

Strongly agree/Agree/Disagree/Strongly Disagree/ No Answer 

Thank you.

Background 

Analysis of Tribal Consultation Policies 

For Health Insurance Exchanges 

Mim Dixon 


On September 14, 2011, Secretary of Health and Human Services (HHS) Kathleen 

Sebelius sent a letter to each State governor regarding Tribal consultation on all health 

and human services programs that are supported with federal funding, including Tribal 

consultation in the development of health insurance exchange under the Affordable 

Care Act (see Attachment A). The Secretary cited the Executive Order on Tribal 

Consultation signed by President Obama in 2009, and the HHS Tribal Consultation 

Policy. The letter states, 

States must consult with Tribes to ensure the programs that they administer with 

federal funding meet the needs of the Tribes in that state. Tribes should be 

considered full partners by states during the design and implementation of 

programs that are administered by states with HHS funding. The requirement of 

states to consult with Tribes in the development of the Affordable Insurance 

Exchanges is an example of how states can proactively include and partner with 

Tribes during the planning stages of a program that has the potential to benefit 

Tribal members greatly. 

While this letter requires States with federal funding to consult with Tribes on the 

development of Health Insurance Exchanges, it does not actually require that States 

adopt a Tribal consultation policy for their Exchanges. At an HHS Tribal Consultation 

on Federally-Facilitated Exchanges held in Washington, DC, on July 26, 2012, a Center 

for Consumer Information and Insurance Oversight (CCIIO) representative stated that 

the requirement for Tribal consultation would be considered in the certification process 

in 2013 when CCIIO decides whether States have the readiness to implement 

Exchanges. 

Federal Funding for Exchange Planning 

Every State except Alaska applied for and received an initial planning grant to consider 

whether or not they would create an Exchange, with the understanding that the federal 

government would create exchanges for States that did not create their own 

Exchanges. States were then able to apply for Establishment Grants to do the work of 

designing Exchanges. Level 1 and Level 2 Establishment Grants were available to 

States.

Analysis of Tribal Consultation Policies For Health Insurance Exchanges 

Tribes understood from the HHS Secretary’s letter to Governors that States with 

federally-funded Planning Grants and Establishment Grants would be consulting with 

Tribes in their respective States during the planning and implementation process. 

Establishment Grant funding could be used for this purpose. However, this has not 

happened in every State that received this federal funding. 

Partnership Exchanges 

CCIIO issued Blueprint for Approval of Affordable State-Based and State Partnership 

Insurance Exchanges on August 14, 2012. It outlines ways that States that decide not 

to operate their own Exchanges can assume some of the responsibilities for the 

Federally-facilitated Exchange (FFE). States may take on functions related to plan 

management, or consumer assistance, or both. States that want to take on these 

functions must submit a “blueprint” to CCIIO by February 15, 2013. 1 CCIIO is expected 

to make decisions in early 2013 2 , about the readiness of States to operate their own 

Exchanges or to take on responsibilities in a Partnership Exchange. 

Within the Partnership Exchanges, States could take responsibility for a number of 

functions that have great interest for Tribes and Urban Indian programs, such as 

certifying Qualified Health Plans with regard to network adequacy and essential health 

benefits (EHB), as well as administration of the navigator program and in-person 

assister program. Furthermore, States must be involved in the coordination of other 

programs that they manage with federal funding -- Medicaid, Medicaid Expansion and 

Child Health Insurance Programs (CHIP) — with the FFE for purposes of a single, 

streamlined application, determination of eligibility, and enrollment. States are also 

encouraged to run the re-insurance program that is required under the Affordable Care 

Act (ACA) through 2016. 

Tribal Consultation Approaches 

The Indian Health Service (IHS), Tribes, and Urban Indian clinics (collectively called the 

“I/T/U” or “Indian health programs”) have the experience and perspective to advise both 

the federal government and state governments about how to structure policies and 

procedures to be workable in the unique context of Indian health programs. Indian 

health programs have a strong interest in making sure that all of the activities of both 

state and federal Exchanges are carried out in a way that preserves the protections for 

American Indians and Alaska Natives (AI/AN) and makes it easy for the Indian health 

1 Original deadline of November 16 was extended by HHS on November 9 to February 15, 2012. 

2 Originally, the federal government was to decide by January 1, 2013, whether states were ready to operate their 

own Exchanges or participate in partnership arrangements. However, the deadline for states to submit their 

blueprints was extended from November 15 until December 14. Therefore, it is assumed that HHS may not be able 

to assess readiness by January 1, 2013, as originally intended. 

2


facilities to bill for services that they provide to people who are enrolled in Exchange 

plans. 

Some States have a better history of working with Tribes than other States where there 

may be hostility over a variety of issues that may be unrelated to health care. In States 

with good relations with Tribes, there may be state law that requires Tribal consultation 

and provides the infrastructure to make it happen. In those States, there may also be a 

state policy for Tribal consultation in the Medicaid program and cooperative efforts at 

planning. However, in most States – even those with a history of good relationships 

with Tribes-- the Exchange planning process is being conducted in the Department of 

Insurance or by an off-shoot of that type of agency, which has had very little experience 

working with Indian health programs. State Health Insurance Commissioners typically 

are ignorant about Indian health programs and federal Indian law. Their focus is on 

regulating insurance companies so that they do not lose money and fail to live up to 

their contractual obligations. 

Survey of State Exchange Consultation Policies and Approaches 

In 2011, CCIIO provided to Tribes and to the Tribal Technical Advisory Group (TTAG), 

an advisory group to the Centers for Medicare and Medicaid (CMS), a list of contact 

people in each State that would serve as liaisons with the I/T/U. Starting in July 2012, 

Tribal representative began contacting people on that list by e-mail to inquire about 

whether or not their Exchange had a Tribal Consultation Policy. By that time, many 

people had moved to other jobs, their e-mails were not working, and Tribal 

representatives were referred as often as four different times to other people. In some 

cases, there was no response to Tribal e-mails and no further names in State 

government to pursue. Tribal representatives tried again to contact people in August, 

September and October and were unable to make contact with anyone in the following 

states: Alaska, Florida, Idaho, Kansas, North Dakota, Texas, and Wisconsin. One can 

only assume that if this survey failed to make contact, then the I/T/U also could not use 

the list provided by CCIIO to contact anyone involved in Exchange planning in those 

States. Tribal representatives asked for an updated list of contacts from CCIIO in 

September 2012, but have not yet received it at the time this report is written. 

A summary of the findings from the States that responded to this survey is provided as 

Attachment B. Only 3 of the 34 states with Tribes had a final, signed Exchange Tribal 

Consultation Policy: Colorado, Minnesota, and Oregon. In addition, 6 States reported 

that they were working with Tribes on an Exchange Tribal Consultation Policy that they 

expected to have signed and completed by the November 16, 2012 deadline for the 

State Exchange and Blueprint applications. These are: Arizona, California, 

Connecticut, Mississippi, New York, and Washington. 

3


In a New Mexico and Utah, there are State Tribal consultation policies that cover a 

broad range of health topics, including Medicaid. These are being used to guide State 

Exchange planning activities. Utah has been consulting with Tribes about updating their 

policies, but this process has not been finalized. Nebraska State officials report that 

they are using the New Mexico policies as a template and adapting them for Nebraska. 

While Oklahoma has returned its Establishment Grant funding is not planning an 

Exchange, they note that the Oklahoma Health Care Authority, which runs the Medicaid 

and CHIP program, has a Tribal Consultation Policy. As long as an Exchange or 

Partnership is within State government and a separate quasi-governmental organization 

has not been established to operate an Exchange, these States believe that their 

existing policies apply to Exchange planning. 

Another approach is being used by Rhode Island, which has one federally-recognized 

Tribe. Instead of developing a formal Tribal Consultation Policy, they have chosen to 

include the Tribal Health Director in a variety of State health advisory committees that 

have already been established. They have documentation to submit to CCIIO that 

describes discussions with the Tribal Health Director about Exchange planning issues. 

Alabama is another State with one federally-recognized Tribe that seems to think a 

formal Tribal Consultation Policy is unnecessary; however, they have put their 

Exchange planning on hold until after the elections. 

An additional 3 states responded to the survey saying that they are not establishing a 

state Exchange and therefore not working on a Tribal Consultation policy: Louisiana, 

Montana, and Wyoming. The survey response from Montana reported that the state 

was advised by CCIIO that they would be handling Tribal Consultation for the FFE. 

Timing of Tribal Consultation 

Many States that have received Establishment Grants believe that they do not need to 

have a Tribal Consultation Policy until they have state legislation or executive orders to 

establish an Exchange, or until they apply to CCIIO for certification to operate an 

Exchange or to assume Partnership functions in the FFE. Meanwhile they are going 

forward with planning many details that are important to tribes. 

For example, according to Reforum website (http://www.statereforum.org/stateprogress-on-essential-health-benefits) 

by the end of July 2012, 7 states with Tribes had 

formed workgroups on essential health benefits (EHB) (Alabama, Colorado, 

Connecticut, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, and New 

York). In addition, 3 States with Tribes had already enacted benchmark plan type 

(Arizona, California, and Nevada). Other States with Tribes had conducted 

assessments of benchmark plan options (Maine, Michigan, Mississippi, North Carolina 

and New York.) Tribes need to be involved with these discussions and decisions 

4


because significant issues are at stake, including mental health parity, limitation in 

number of visits, and having a separate plan for pediatric oral and vision services. 

Consultation for Partnerships in FFE 

In summary, 13 of the 34 states with Tribes have an approach to Tribal Consultation for 

Exchange planning. Among the other 21 states, 10 did not receive Establishment 

Grants and are, therefore, not likely to have state Exchanges or Partnerships in the FFE 

(including 6 that did not respond to the survey). 

Both the I/T/U and the federal government should be most concerned about the States 

that received Establishment Grants with the clear direction to engage in Tribal 

consultation and for which there is no evidence that this has been done. These include: 

Iowa, Massachusetts, Maine, Michigan, North Carolina, Nevada, and South Dakota. 

Idaho also received an Establishment Grant, but did not respond to the survey. 

A number of these States indicated that they are still evaluating their options and have 

not made a decision about what they will be doing, in most cases waiting until after the 

election. This seems to be a rationale for not engaging Tribes in the planning process 

and not developing policies, such as a Tribal Consultation policy. However, if they have 

been using their Establishment Grant funding to do planning, they are likely to submit a 

Blueprint for partnership in the FFE. These States may assume FFE functions related 

to plan management, or consumer assistance, or both. If the federal government 

approves their Partnership applications, these States will be making decisions that 

affect the I/T/U without necessary consultation. 

Attachments: 

A. Letter to Governors from Kathleen Sebelius, HHS Secretary, September 14, 2011 

B. Status of Tribal Consultation Policies 

C. Issues for Tribal Consultation 

5


Attachment A 

Dear Governor: 

THE SECRETARY OF HEALTH AND HUMAN SERVICES WASHINGTON, D.C. 20201 


Over the last two years, the Department of Health and Human Services (HHS) has taken a number 

of steps to strengthen our partnership with American Indian and Alaska Native Tribal Nations. We 

take seriously the federal government's obligation to help improve the health of American Indians 

and Alaska Natives through the various health and human services programs administered by the 

Department. 

However, improving the health and well-being of Tribal nations is contingent upon understanding the 

specific needs of Tribal communities. Tribal consultation is an essential tool in understanding these 

unique needs and ensuring government to government relations. I am writing to you today to 

encourage you to consult with Tribes as you administer health and human services programs that are 

supported with federal funding. 

HHS has made significant progress in strengthening our partnership with Tribes, and Tribal 

consultation is one piece of our efforts to fulfill our responsibility to represent the best interests of 

Tribes. Since President Obama signed an Executive Order on Tribal Consultation in 2009, HHS has 

also updated its formal Tribal consultation policy. The updated policy includes the responsibility of 

states to consult with Tribes when HHS has transferred the authority and funding for programs to 

states that are intended to benefit Tribes. States must consult with Tribes to ensure the programs that 

they administer with federal funding meet the needs of the Tribes in that state. Tribes should be 

considered full partners by states during the design and implementation of programs that are 

administered by states with HHS funding. The requirement of states to consult with Tribes in the 

development of the Affordable Insurance Exchanges is an example of how states can proactively 

include and partner with Tribes during the planning stages of a program that has the potential to 

benefit Tribal members greatly. Consultations can identify strengths and barriers to Tribes accessing 

these services and ensure that Tribes have the opportunity for greater health care coverage for their 

members and employees. 

I believe we share a vision of the future where our nation is strong and where every individual and 

every community has the opportunity to reach their full potential. We can continue to strengthen 

our partnership with Tribes and improve health and human service opportunities for all. Together, 

we have the opportunity to build something great. 

Kathleen Sebelius 

6


Attachment B 

State Health Insurance Exchanges, Status of Tribal Consultation Policies, 10-18-12 

Stat 

e 

Contact Polic 

y? 

7 

Status 

(latest status 

report date) 

Establishm 

ent 

Grant? 

Type 

Exchan 

ge 

Expecte 

d 

AK No FFE 

AL Kathleen Healy 

HIX 

No FFE 

Kathleen.healey@myalabama.gov establishme 

nt on hold 

until after 

elections. 

Only one 

federallyrecognized 

tribe seems 

to be reason 

for State not 

to have 

formal 

policy. 

(7/20/12) 

AZ Donald Hughes 

Expected to Yes 

dhughes@az.gov (602-542-1334) be 

completed in 

October. 

CA Jessica Abernethy 

Working on Yes State 

Jessica.abernethy@hbex.ca.gov 

it. Check in 

November 

CO Myung Kim 

yes CO Health Yes State 

mkim@cohbe.org 

Benefit 

Exchange 

Policy 

Regarding 

Consultation 

with 

Colorado’s 

American 

Indian 

Tribes was 

signed in 

December 

2011. 

CT Julie Lyons Finalize Yes State


Julie.Lyons@ct.gov (860-418- 

6267) 

Sept 27 

FL No FFE 

IA Angela Doyle Scar 

Angela.DouyleScar@idph.iowa.go 

v 

no (9/18/12) Yes 

ID Yes 

KS No FFE 

LA Carol Steckel 

No LA is not No FFE 

Carol.Steckel@LA.gov (337-233- 

establishing 

9627) 

a state 

based 

exchange 

and is 

therefore not 

working on a 

Tribal 

Consultation 

Policy. 

(7/9/12) 

MA Kaitlyn Kenny 

Kaitlyn.kenney@state.ma.us 

(617-933-3030) 

Yes State 

ME Katrin P. Teel 

No ME is 

Yes 

Katrin.Teel@maine.gov 

reviewing its 

(207-287-3531 

options and 

has not 

developed 

any policies 

such as 

Tribal 

Consultation 

Policies. 

(10/19/12) 

MI Chris Priest 

No MI is waiting Yes 

PriestC1@michigan.gov (517-335- until after 

5178) 

they have 

established 

legal 

authority for 

a statebased 

exchange to 

work on a 

Tribal 

Consultation 

8


MN April Todd-Malmlov 

April.todd-malmlov@state.mn.us 

(651-296-6025) 

MS Liz Barnett 

Liz.Barnett@mid.state.ms.us 

MT Christa McClure 

cmcclure@mt.gov (406-444-2041) 

Policy. 

(7/10/12) 

Yes MN Health 

Insurance 

Exchange 

Tribal 

Consultation 

Policy 

signed 

9/25/12 

Working on 

it (9/14/12) 

No MT was 

advised by 

CCIIO that 

they would 

be handling 

Tribal 

Consultation 

for FFE 

(7/9/12). 

9 

Yes 

Yes 

No 

FFE


NB John Paul (JP) Sabby 

JP.Sabby@nebraska.gov 

(402-471-0344) 

NC Jean Holliday 

Jean.holliday@ncdoi.gov 

10 

Nebraska is 

using NM 

Tribal 

Consultation 

Policy as a 

template 

and 

adapting it. 

No decision 

on 

Exchange 

until after 

election. If 

there is a 

State 

Exchange, it 

will be 

located 

inside state 

government 

in Division of 

Insurance. 

Check back 

in 

November. 

(10-18-12) 

No NC has not 

established 

legal 

authority 

and 

therefore no 

legal entity 

exists to 

execute 

Tribal 

Consultation 

Policy. 

There is only 

one 


tribe (EBC) 

and they 

have been in 

discussions 

Yes 

Yes


ND 

bout 

Exchange. 

(7/12/12). 

No FFE 

NM Priscilla Caverly 

State HSD Yes 

Priscilla.Caverly@ state.nm.us 

has tribal 

consultation 

policy 

signed 

7/29/11. 

State-Tribal 

Collaboratio 

n Act , 

SB196, 

requires all 

departments 

of state 

government 

to have a 

tribal 

consultation 

policy. 

(7/10/12) 

NV Jon Hager 

jhager@exchange.nv.gov (775- 

687-9926) 

Yes 

NY Lisa Sbrana 

Tribal 

Yes state 

Lbs05@health.state.ny.us 

consultation 

(212-417-5293) 

meeting 

scheduled 

for 10/30/12 

OK Buffy Heater 

No OK 

No FFE 

Buffy.heater@okhca.org 

exchange 

planning on 

hiatus and 

there is no 

Tribal 

Consultation 

Policy, 

although 

Medicaid 

(OHCA) 

does have 

one. 

(7/13/12) 

OR Rachel Oh Yes OR Health Yes state 

11


Rachel.oh@orhix.org Insurance 

Exchange 

Corporation 

Tribal 

Consultation 

Policy 

signed 

RI Megan Hall 

Megan.hall@faulknerconsultinggr 

oup.com 

12 

4/2/12. 

An 

unsigned 

Tribal 

Consultation 

Document 

dated May 

11, 2012, 

outlines 

processes 

for tribalstate 

communicati 

on. State 

has one 


tribe 

(Narraganse 

tt). Tribal 

health 

director 

serves on 

Medicaid 

Advisory 

Committee. 

Tribe is 

invited to 

attend public 

meetings. 

(7/15/12) 

Yes state


SD Eric Matt 

Eric.matt@state.sd.us 

No SD has not 

yet decided 

whether they 

will have a 

state 

exchange. 

No formal 

Tribal 

Consultation 

Policy. 

Convened 

workgroup in 

2011 with 

tribal 

representati 

on. 

Medicaid 

Tribal 

Consultation 

group meets 

quarterly 

and they are 

updated on 

health 

reform. 

(7/11/12) 

TX No FFE 

UT Melissa Zito 

Dept of 

No FFE 

mzito@utah.gov (801-712-9346) 

Health Tribal 

Consultation 

Policy 

signed 

11/2/06. 

Exchange 

uses Utah 

Indian 

Health 

Advisory 

Board. 

WA Brad Finnegan 

Working on Yes State 

Brad.finnegan@hca.wa.gov 

it. Check in 

November 

WI No FFE 

WY Tom Hirsig 

No No state No FFE 

Tom.hirsig@wyo.gov 

exchange 

and 

13 

Yes


14 

therefore no 

work on 

Tribal 

Consultation 

Policy. 

(7/9/12)


Attachment C 

Issues for Tribal Consultation in Exchange Planning 

Version 10/25/12 

A. Qualified Health Plan (QHP) Networks and Essential Health Benefits 

1. Require all QHPs to offer contracts to all I/T/U providers with an Indian 

Addendum 

2. Develop rules and processes to assure that AI/AN who are enrolled in a 

QHP and referred through an I/T/U CHS program (and/or are below 300 

percent FPL) are not charged a co-pay or deductible for services they receive 

outside the I/T/U. 

3. Essential Health Benefits 

a. Review the scope and duration of services 

b. Providers covered 

B. Payment for Services Provided by I/T/U 

c. Substitution of benefit categories from benchmark plan 

d. Offering pediatric oral and vision services in the QHP versus 

a separate plan 

e. Compliance with Mental Health Parity and Addiction Equity 

Act (MHPAEA) 

1. Enforcement of Section 206 of the Indian Health Care Improvement Act 

(IHCIA) 

a. Assure that the I/T/U is paid in a sufficient and timely way for services 

delivered to individuals who are enrolled in QHPs if the I/T/U is not a 

network provider. 

b. Create single point of contact for I/T/U facilities that have problems 

collecting from QHPs, and a process for dealing with those issues. 

2. Reimbursement for Waived Cost Sharing 

a. Develop a process to assure that the I/T/U receives payment for the 

co-pays and deductibles that are waived for AI/AN. 

15


b. Develop process to reimburse other QHP providers for waived cost 

sharing for AI/AN. 

C. Eligibility and Enrollment and Tribal Sponsorship 

1. Eligibility 

a. Identification of individuals who are eligible for special protections and 

provisions as AI/AN in the eligibility process and at the provider level to 

assure that deductibles and co-pays are waived. 

b. Utilization of existing databases or development of new databases to 

expedite eligibility determinations. 

c. Deciding how additional documentation will be requested, submitted, 

reviewed, and stored and how eligibility determinations will be made when 

individuals are not included in approved data systems. 

d. Develop the system to assure waiver of penalties for AI/AN without 

Insurance and to communicate who is covered by this provision in the law. 

2. Enrollment process 

a. Enrollment process must accommodate special provision for AI/ANs in 

Exchanges (monthly enrollment, waiver of cost sharing, exclusion of 

certain sources of income). 

b. As single point of enrollment, Exchanges must be able to identify 

AI/AN for benefits and protections in Medicaid, Medicaid Expansion, 

Child Health Insurance Programs, and Basic Health Plans, if there are 

any in the State. 

3. Tribal Sponsorship 

4. Website 

a. Allow tribes to decide which individuals they want to sponsor and 

provide opportunity for aggregate payment of premiums. 

b. Decide the terms and conditions of Tribal Sponsorship. 

c. Allow I/T/U clinic addresses to be used for QHP mailing to enrolled 

individuals. 

16

D. FFE Data 


a. Design the website to include information specific to AI/ANs and the 

I/T/U. 

b. Test the website in Indian Country and in urban Indian clinics to make 

sure it is culturally appropriate, easy to navigate to Indian health 

information, and the information is presented in a way that is accurate and 

easy accessible to consumers, as well as those assisting with enrollment. 

5. Enrollment Assistance 

a. Carve outs for navigator contracts for the I/T/Us, including an Indian 

Addendum. 

b. Provide other enrollment assistance funding, such as Medicaid 

Administrative Match (MAM). 

6. Call Centers 

a. Decide whether it is most appropriate to have an Indian desk to handle 

questions and resolve problems regarding AI/AN and I/T/Us, or whether 

everyone who works at a call center should receive training about Tribes 

in the State, the Indian health care delivery system and special provisions 

in the law, regulations and systems for AI/AN. 

b. Review scripts that are used in call centers to assure their accuracy for 

AI/ANs and I/T/Us. 

c. Provide appropriate back up for call center employees who are unable 

to answer questions about AI/ANs and I/T/U and standards for timely 

response. 

d. Keep FAQs and review answers for accuracy. 

1. Enrollment data 

2. Federal data hub 

a.IHS registration data 

b. Other AI/AN data sets 

3. Identifying AI/AN in FFE data and reports 

a. For benefits and protections for AI/AN 

b. For reimbursing cost sharing 

17


c. Performance metrics 

d. Measuring effectiveness/barriers to enrollment of AI/AN 

E. Outreach and Education 

1. Provide outreach and education that is culturally appropriate. 

2. Assure that AI/ANs know which QHPs have I/T/U providers in their 

networks. 

3. Inform consumers and providers about the special protections and 

provisions for AI/AN. 

18

John O'Brien 

Director, Healthcare & Insurance 

Office of Personnel Management (OPM) 

John O'Brien is the Director of Health Care and Insurance at the Office of Personnel Management. In this position he 

oversees the insurance programs for federal employees including the Federal Employees Health Benefit (FEHB) 

program, which provides health insurance to over 8 million federal employees, retirees, and their dependents. In 

addition, he leads the team implementing OPM's responsibilities under the Affordable Care Act (ACA). These include 

the development of multi-state plans for state exchanges and allowing employees of tribes and tribal organizations to 

purchase health and life insurance through the federal system. 

From 2007 to 2009 he helped oversee the State of Maryland's unique all-payer hospital rate setting system as the 

Deputy Director for Research and Methodology at the Maryland Health Services Cost Review Commission (HSCRC). 

From 1997 to 2007 he was the Director of Acute Care Policy at the University of Maryland, Baltimore County (UMBC) 

Hilltop Institute where his work focused on the management and oversight of Medicaid managed care plans. Mr. 

O'Brien was a 2005 recipient of an Ian Axford Fellowship in Public Policy under which he studied health system 

performance measurement in New Zealand. He has a Master Degree in Public Administration from Syracuse 

University.

Centers for Medicare & Medicaid Services’ Tribal 

Technical Advisory Group 

American Indian and Alaska Native 

Strategic Plan 

2013 - 2018 

This draft plan is being circulated for Tribal Leader and health director comments and 

recommendations. An electronic copy is available at: www.nihb.org. Please submit 

your comments by October 30, 2012 to Liz Heintzman at the National Indian Health 

Board at EHeintzman@nihb.org. Thank you! 

The 2013-2018 CMS-TTAG AI/AN Strategic Plan covers the time period from Fiscal Year 2013 to Fiscal Year 

2017(FY2013-FY2017), which spans from October 1, 2013 to September 30, 2018. Recommendations contained in 

the plan will also be used to inform budget requests for Fiscal Year 2012.

Draft Report: Currently being circulated for Tribal leader and health director 

review and comment. Please provide comments by October 30, 2012 to Liz 

Heintzman at the National Indian Health Board at EHeintzman@nihb.org. 

CMS Tribal Technical Advisory Group 

W. Ron Allen 

Chairman, Jamestown S’Klallam Tribe 

Tribal Self Governance Advisory Committee 

Representative 

Pearl Capoeman-Baller 

Quinault Indian Nation 

Portland Area Representative 

James Crouch 

Executive Director, California Rural Indian Health 

Board, Inc. 

California Area Representative 

Valerie Davidson 

Senior Director of Legal and Intergovernmental 

Affairs, Alaska Native Health Consortium 

Alaska Area Representative 

Juana Majel-Dixon 

Secretary, NCAI Executive Committee 

National Congress of American Indians 


Judy Goforth Parker, PhD 

Administrator, Chickasaw Nation Division of Health 

Oklahoma Area Representative 

Carl Harper 

Director, Office of Resource Access & Partnerships 

Indian Health Service Representative 

Rex Lee Jim 

Vice-President, Navajo Nation 

Navajo Area Representative 

Grace Manuel 

Legislative Council Member, Tohono O’odham 

Nation 

Tucson Area Representative 

2 

Richard Narcia 

President, Board of Directors, Gila River Indian 

Community 

Phoenix Area Representative 

Marlene Redneck 

Northern Cheyenne Tribal Council 

Billings Area Representative 

H. Sally Smith 

Chairman, Bristol Bay Health Area Health 

Corporation 

National Indian Health Board Representative 

Carmelita Skeeter 

Chief Executive Officer, Indian Health Care Resource 

Center of Tulsa 

National Council on Urban Indian Health 


Donita Stephens 

Finance Director, Choctaw Health Center 

Nashville Representative 

Alec Thundercloud, MD 

Executive Director of Health, Ho-Chunk Nation 

Bemidji Representative 

Donald Warne, MD, MPH 

Senior Policy Analyst, Great Plains Tribal Chairmen’s 

Health Board 

Aberdeen Representative 

Albuquerque Representative 

Vacant




Table of Contents 

TABLE OF CONTENTS ..........................................................................................................1 

DEDICATION .....................................................................................................................2 

EXECUTIVE SUMMARY ............................................................................................... 3 

INTRODUCTION..................................................................................................................4 

GOALS AND OBJECTIVES FOR 2013-2018 

Goal 1. Tribal Consultation ...........................................................................................................12 

Goal 2. Policy Development and Implementation ......................................................................15 

Goal 3. Long Term Services and Support ......................................................................................19 

Goal 4. Outreach and Education ...................................................................................................22 

Goal 5. Data for Evaluation ...........................................................................................................25 

APPENDIX A: PLAN SUMMARY AND BUDGET ..........................................................................28 

APPENDIX B: LEGAL BASIS FOR SPECIAL CMS PROVISIONS FOR AI/ANS .....................................40 

APPENDIX C: CMS ORGANIZATION CHART .............................................................................62 

APPENDIX D: COMMON TERMS & ACRONYMS .......................................................................63 

ACKNOWLEDGEMENTS ........................................................................................................64 

1




Dedication 

This CMS American Indian and Alaska Native Strategic Plan 

is dedicated to three colleagues whose contributions made the Tribal Technical 

Advisory Group (TTAG) stronger and more effective. 

Robert Dean Moore, Rosebud Sioux (1963 - 2010) 

Tribal Council member for the Rosebud Sioux Tribe, Robert Moore was 

the Aberdeen Area representative to the TTAG. Earlier in his career, as the 

Indian Affairs staff member for former US Senator Tom Daschle, Robert 

raised awareness of health disparities and the need for long-term care for 

Tribal elders. He was a friend and warrior for all throughout Indian 

communities. 

Kristine Anne Locke (1950 - 2012) 

Technical Advisor to the Tribal Self Governance Advisory Committee 

(TSGAC) representative on the TTAG, Kris Locke brought technical 

expertise, wisdom and experience to the process of defining values and 

core principles, fostering team work among all participants, and providing 

technical and program support for TTAG subcommittees. She worked 

tirelessly on behalf of Tribes and American Indian and Alaska Native 

people. 

Elmer Brewster, MSW, MPH, Paiute (1949 - 2012) 

A friend to all who knew him, Elmer Brewster was engaged with the TTAG 

from its beginning, shared data and information about the costs of Indian 

health care, advocated for payment systems that were inclusive, and 

represented the Indian Health Service and the Indian health system 

honorably. 

2




Executive Summary 

This is the third American Indian and Alaska Native (AI/AN) Strategic Plan for the Centers for 

Medicare and Medicaid Services (CMS) by the Tribal Technical Advisory Group (TTAG). Update of 

AI/AN Strategic Plan is urgently needed to address new opportunities and challenges of 

implementing legislation passed since the last Plan was written, including: 

American Recovery and Reinvestment Act of 2009 (ARRA) 

Patient Protection and Affordable Care Act (ACA), which also amended and 

permanently authorized the Indian Health Care Improvement Act (IHCIA) 

AI/AN Strategic Plan has five goals that apply to all CMS programs, including Medicare, Medicaid, 

CHIP, and Health Insurance Exchanges: 

1. CMS engages in meaningful consultation with Tribes and works closely with the TTAG. 

(Page 12) 

2. CMS enacts and implements policy through regulation, guidance, review and 

enforcement to align CMS programs to serve AI/ANs by improving enrollment processes, 

assuring access to care, having efficient payment systems, and increasing the I/T/U capacity 

to deliver integrated, comprehensive programs. (Page 15) 

3. CMS improves and expands opportunities for development and delivery of Long Term 

Services and Support throughout Indian communities. (Page 19) 

4. Through outreach and enrollment activities, all I/T/U programs are fully informed about 

CMS programs and AI/ANs know about benefits to which they are entitled. (Page 22) 

5. Develop and improve CMS data systems to evaluate and expand the capacity of CMS to 

serve American Indians and Alaska Natives. (Page 25) 

Annual Plan budget is $5.5 million in 2013, $7.3 million in 2014, $7.4 million in 2015, and $4.5 

million in the following 3 years. The higher amounts are needed in the next three years to prepare 

for 2014 and on-going implementation to assure that AI/ANs benefit from ACA. Budget summary is 

provided in Appendix A (Page 28). 

AI/AN Strategic Plan serves as an important reference document through the inclusion of Appendix 

B: Legal Basis for Special CMS Provisions for American Indians and Alaska Natives. (Page 39) 

3




Introduction 

New developments require strategic response 

This is the third American Indian and Alaska Native Strategic Plan that the Tribal Technical Advisory 

Group (TTAG) to the Centers for Medicare and Medicaid Services (CMS) has prepared to help guide 

Centers for Medicare & Medicaid Services (CMS). The first one was issued for the period of 2005-2010, 

and the second for the period of 2010-2015. There have been significant changes in the law and in CMS 

since the most recent strategic plan was issued in 2009, including: 

American Recovery and Reinvestment Act of 2009 (ARRA), P.L. 111-5, February 17, 2009. 

Patient Protection and Affordable Care Act (ACA), P.L. 111-148, March 23, 2010, which also 

permanently authorized the Indian Health Care Improvement Act (IHCIA) by Section 10221. 

CMS Tribal Consultation Policy, signed Nov 17, 2011. 

The Supreme Court of the United States decision on June 28, 2012, that upheld the ACA, but 

created new challenges in the event that some states choose not to implement Medicaid 

Expansion. 

A prolonged period of an economic recession that has created pressures on State budgets 

that affect Medicaid program funding and services. 

Changes in direction by CMS to create a greater emphasis on payment related to quality, 

integration of services, utilization of electronic methods for enrollment and care 

management, and greater accountability. 

This new American Indian and Alaska Native Strategic Plan for 2013-2018 is urgently needed to: 

Get ready for 2014 when people will be able to enroll in the new Medicaid Expansion and 

Health Insurance Exchanges. 

Strengthen primary care networks to prepare for the managed care approaches across all 

CMS programs by facilitating the integration of Indian health providers, utilizing them as 

medical homes, acknowledging new provider types and services, and providing adequate 

payment for services. 

Build capacity for long term care through community based services and support in Tribal 

communities. 

Implement protections in the law for American Indians and Alaska Natives who enroll in 

federally-funded health programs. 

4




Create a partnership between CMS and Tribal governments that provides early discussions 

of policy development and planning to assure the integration of CMS programs and Indian 

health programs to create effective processes for enrollment, access to care, care 

coordination, quality care, and adequate payment for services. 

Reduce health disparities for American Indians and Alaska Natives which are among the 

worst of any racial or ethnic group in our nation, a condition that can be improved through 

better integration of the Indian health care system and CMS programs. 

CMS programs must reduce health disparities 

Federal funding for Medicaid, Medicaid Expansion, CHIP, Medicare, and Health Insurance Exchanges 

is intended to reduce health disparities in our society. At every stage of their lifespan, American 

Indians and Alaska Natives (AI/AN) have significantly worse health status than the rest of the nation. 

A recent analysis of Medicaid data in one state 1 shows that infant mortality among AI/ANs was 

twice the rate for the Medicaid population as a whole. Compared to the rest of the world, the 

AI/AN infant mortality rate was higher in that State than such countries as Poland, Slovakia, Estonia, 

Malaysia, Thailand, and Sri Lanka. Contributing factors included deaths due to Sudden Infant Death 

Syndrome (SIDS) at a rate 3 times higher among Indians compared to the total Medicaid population, 

deaths due to injuries at a rate 5 times higher among Indians, and a rate of deaths from 

complications of pregnancy and delivery 50 percent higher than the total Medicaid population. 

Medicaid data from the same state also provided an analysis of the risk factors that lead to poor 

pregnancy outcomes. Compared to all pregnant women on Medicaid, Indian pregnant women were 

2.7 times more likely to have a mental health diagnosis, 3.3 times the rate of alcohol and substance 

abuse, a 70 percent higher rate of smoking, and a 30 percent higher rate of obesity. 

CMS must assure that AI/ANs and Indian Health Service (IHS)/Tribal/and Urban Indian Organization 

(I/T/U) users are accurately identified in records for Medicaid, Medicare and Health Insurance 

Exchanges that can be used to calculate health disparities, as well as provide utilization data and 

performance metrics. In the past IHS provided health status and health disparity information on a 

nationwide basis for AI/ANs who are I/T/U users; however, that effort was discontinued in 2007. 

According to the most recent reports from IHS, AI/ANs die at higher rates than other Americans 

from tuberculosis (500 percent higher), alcoholism (514 percent higher), diabetes (177 percent 

higher), unintentional injuries (140 percent higher), homicide (92 percent higher) and suicide (82 

1 American Indian Health Commission for Washington State, Tribal Maternal and Infant Health Strategic Plan, 2010. 

Analysis based on 8 years of data by Laurie Cawthon, MD, MPH, Manager of First Steps Data Base in Washington 

State Department of Social and Health Services. 

5




percent higher). 2 Current data are needed to know whether interventions, such as enrollment in 

CMS programs, are effective in changing health outcomes. 

A number of factors contribute to persistent disparities in AI/AN health status. American Indians and 

Alaska Natives have the highest rates of poverty in America, accompanied by high unemployment 

rates, lower education levels, poor housing, lack of transportation and geographic isolation. All of 

these factors contribute to insufficient access to health services. American Indians and Alaska 

Natives continue to experience historical trauma from damaging federal policies, including those of 

forced removal, boarding schools, and taking of tribal lands, and continuing threats to culture, 

language, and access to traditional foods. 

Historic and persistent under-funding of the Indian healthcare system has resulted in problems with 

access to care, and has limited the ability of the Indian healthcare system to provide the full range of 

medications and services that could help prevent or reduce the complications of chronic diseases. 

CMS, IHS and Tribes must work together to help eliminate existing health inequalities. Together we 

can and must strengthen the ability of Indian health programs to serve as the medical home for 

AI/ANs, offering culturally competent care with a public health focus, while fulfilling their important 

role as essential providers for Medicaid, Medicare, and Children Health Insurance programs and the 

prospective Health Insurance Exchange plans. This plan offers CMS and TTAG a roadmap for making 

that happen. 

The Indian health care system is unique 

The United States has acknowledged its special trust responsibility to provide health services to AI/ANs. 

This responsibility is the direct result of treaties between the United States and Indian Tribes and of 

executive orders, and has been reaffirmed by judicial decisions, executive orders, and Acts of Congress 

(see Appendix B, p. 39). 

The IHS was created in 1955 to assist the United States to fulfill its obligation to provide health care to 

AI/ANs. Twenty years later, Congress enacted the Indian Self-Determination and Education Assistance 

Act of 1975 (P.L. 93-638) to enable Tribes and Tribal Organizations to directly operate health programs 

that would otherwise be operated by IHS, thereby empowering Tribes too design and operate health 

programs that are responsive to community needs. Title V of the Indian Health Care Improvement Act 

of 1976 (P.L. 94-437) (IHCIA) authorized federal funding for urban Indian organizations to provide health 

services to AI/ANs, many of whom had been relocated to urban areas by federal relocation programs. 

2 Website http://www.ihs.gov/Public Affairs/IHSBrochure/Disparities.asp. AI/AN data from 2004-2006 are 

compared with U.S. All Races data for 2005. 

6




Taken together, this complex healthcare delivery system is often referred to as the “I/T/U” 

(IHS/Tribal/Urban) or Indian healthcare system. A year later, the Congress authorized IHS and tribal 

health programs to bill Medicare and Medicaid, which expanded the resources available to them to 

carry out the federal trust responsibility. 

Today the Indian healthcare system includes 46 Indian hospitals (1/3 of which are tribally operated) and 

nearly 630 Indian health centers, clinics, and health stations (80 percent of which are tribally operated). 

When specialized services are not available at these sites, health services are purchased from public and 

private providers through the IHS-funded Contract Health Services (CHS) program. Additionally, 34 

urban programs offer services ranging from community health to comprehensive primary care. 

The I/T/U utilizes a community-based public health model with many approaches that are not found in 

typical American medical delivery systems. For example, the Indian health programs include public 

health nursing, outreach workers, prevention services, and even building community water and 

sanitation services. Indian health programs have pioneered new types of providers, such as community 

health aides and dental health therapists, as well as new approaches to delivering services in remote 

rural areas, including telehealth. Tribal governments manage a wide range of services, such as 

substance abuse treatment, the U.S.D.A. nutrition programs for pregnant women, infants and children 

(WIC), Senior Centers and elder nutrition sites, rabies vaccinations for dogs, and injury prevention 

programs, to name just a few. Tribal programs tend to take a more holistic view and utilize indigenous 

people who speak the local language and live in remote Tribal communities. 

Not only does the Indian health system have to deal with health disparities, it’s important to note that 

the system is also challenged with funding disparities. The IHS Federal Disparity Index (FDI) is used to 

determine the level of funding for the Indian health system relative to its total need. The FDI compares 

actual health care costs for an IHS beneficiary to those costs of a beneficiary served in mainstream 

America. The FDI uses actuarial methods that control for age, sex, and health status to price health 

benefits for Indian people using the Federal Employee Health Benefits (FEHB) plan, which is then used to 

make per capita health expenditure comparisons. Based on this model it is estimated that Congress 

provides direct appropriations to the Indian health system, on average, at approximately 60 percent of 

its level of need. 3 It is these health and funding disparities that exacerbate the challenges in providing 

health care for AI/AN people. 

3 The IHS calculates funding needs for IHS and tribal health programs by “comparing [IHS] funding to the cost of 

providing medical insurance for [AI/AN] users in a mainstream health insurance plan such as the Federal 

Employees Health Plan (FEHP).” Indian Health Manual, Part 6, Chapter 4, Manual Exhibit 6-4-A. This methodology 

is commonly referred to as the Federal Disparity Index (FDI). Available at: 

http://www.ihs.gov/NonMedicalPrograms/lnf/ 

7




The federal government reimburses States 100 percent for Medicaid services delivered to AI/ANs 

through IHS and Tribal health programs. States are reimbursed for payments made to Urban Indian 

Health Programs for Medicaid services provided to AI/ANs on the basis of the state-specific Federal 

Medical Assistance Percentage (FMAP), which in 2013 varies from a minimum of 50 percent up to 73.43 

percent. Many programs operated by the IHS and Tribes use a bundled rate approved by the Office of 

Management and Budget (OMB) on an annual basis, called the “IHS Reimbursement Rate“ or the ”IHS 

encounter rate.” These and other unique circumstances and billing practices are generally not well 

understood outside the Indian health system. A summary of the legal basis for special CMS provisions 

for American Indians and Alaska Natives has been updated and presented in Appendix B (page 39). The 

lack of 100 percent FMAP to States for services provided in Urban Indian Health Programs has precluded 

these programs from inclusion in the “IHS encounter rate” reimbursement methodology, and hinders 

the recognition by States of the special obligations owed to urban Indians and Urban Indian Health 

Programs under Federal law. There is much more work to be done to align the policies, programs, and 

systems for billing for CMS services in order to ensure that AI/ANs have the health care coverage they 

are entitled to receive. 

Tribal consultation is required for CMS programs 

The United States government has a unique legal and political relationship with American Indian and 

Alaska Native Tribes. This special relationship recognizes Tribes as sovereign nations that retain the 

inherent right to self-govern, and that interact with the United States on a government-to-government 

basis. These rights are grounded in the U.S. Constitution and treaties, and are reinforced by judicial 

precedent and Presidential Executive Orders that direct federal agencies to consult with Tribes on a 

government-to-government basis. Tribal consultation is an open and continuous exchange of 

information that leads to mutual understanding and informed decision making between federal 

agencies and tribal governments. Tribal consultation should occur at the earliest possible point in the 

policy formulation process, particularly whenever decisions would significantly impact Tribes, would 

have a substantial compliance cost, or would result in new or changed policies. Both the Department of 

Health and Human Services (HHS) and CMS have Tribal consultation policies, and CMS is developing 

procedures to operate those policies. The CMS Tribal Consultation policy calls for an annual review and 

revisions to update the policy. 

The purpose of the first goal of this Strategic Plan is to ensure meaningful consultation with Indian 

Tribes on policy and programmatic issues including, but not limited to eliminating health disparities of 

Indians and ensuring access to critical health services, including those made available through Medicare, 

Medicaid, CHIP, and Exchange Plans administered by CMS. The involvement of Tribes and the TTAG in 

the development of CMS policy allows for culturally appropriate approaches resulting in greater access 

8




to CMS programs and positive outcomes for Indian people and the health programs operated by the 

Indian Health Service, Tribes and Tribal Organizations, and urban Indian organizations. 

Tribal Technical Advisory Group advises CMS 

The Tribal Technical Advisory Group (TTAG) was started by CMS in 2004 as a policy advisory body. In 

2009 ARRA Section 5006(e)(l), P.L. 111-5 established the TTAG in law, added new categories of 

members, and reaffirmed its status as exempt from the Federal Advisory Committee Act (FACA), 5 U.S.C. 

App. 2 

TTAG has 18 members: elected tribal leaders (or their designated employees) selected from the 12 

Areas of the IHS, as well as representatives from the National Congress of American Indians (NCAI), the 

National Indian Health Board (NIHB), the Tribal Self-Governance Advisory Committee (TSGAC), the 

Indian Health Service, and the National Council of Urban Indian Health (NCUIH). TTAG meetings, 

subcommittees, and workgroups facilitate the exchange of information and perspectives on the 

administration of CMS programs and their efficacy in Indian communities. TTAG meetings complement, 

but do not supplant, tribal consultation processes that take place between CMS and individual Tribes. 

Some of the recommendations from the TTAG have been implemented as CMS regulation and policy, 

and later reaffirmed in federal law. While the TTAG has offered their advice to CMS on a wide range of 

issues, the following are some of the significant achievements: 

CMS Tribal Consultation Policy is adopted and training is provided for CMS employees to 

implement it. 

Native American Contacts (NACs) are designated for each Regional Office of CMS. 

Medicaid Administrative Match may be made available by State Medicaid programs to Tribal 

health programs to provide enrollment assistance. 

Indian Addendum 4 developed for Medicare Part D to assure participation by I/T/U pharmacies 

on terms appropriate to their governmental status and statutory protections. 

Successful campaign is initiated to increase AI/AN enrollment in CHIP. 

4 “Indian Addendum” refers to contract terms that are specific to IHS and tribal health programs that was 

approved by CMS and that Medicare Part D pharmacy plans must include in preferred provider arrangements with 

IHS and tribal health programs. 

9




On April 6, 2012, CMS approved Arizona’s request to amend its 1115 demonstration known as 

the Arizona Health Care Cost Containment System (AHCCCS), which allows the State to offer 

uncompensated care payments to Indian Health Service and tribal 638 facilities. Under the 

amended demonstration, IHS and Tribal 638 facilities can begin to claim payments for 

uncompensated care costs associated with services furnished to individuals with income up to 

100 percent of the FPL. 

CMS training is provided to I/T/U in each Area on an annual basis, supplemented by Medicine 

Dish programs, All Tribes calls, a CMS Day at the NIHB Annual Consumer Conference, CMS 

sponsorship of a Long Term Care Conference and a website. 

Meaningful use of electronic health records rules are defined and promote I/T/U participation. 

States are required to consult with Tribes and Tribal Organizations on Medicaid State Plans, 

waivers and the development of health insurance exchanges. 

Regulation tracking process is implemented for AI/AN and I/T/U issues. 

CMS Tribal Affairs Group added staff to address issues. 

Medicaid, CHIP, and Medicare enrollment, service and payment data for AI/AN have been 

identified and reported . 

Collaborative policymaking processes such as those demonstrated by TTAG improve the quality of 

resultant decisions. 

Organization of CMS AI/AN Strategic Plan 

This plan is organized to provide a focus on the goals and objectives. Supporting documentation and 

budget summaries are provided in appendices. There are five overarching goals in this plan that apply 

to all CMS programs, including Medicare, Medicaid, CHIP, and Health Insurance Exchanges. These are: 

Goal 1: CMS engages in meaningful consultation with Tribes and works closely with the TTAG. 

Goal 2: CMS enacts and implements policy through regulation, guidance, review and 

enforcement to align CMS programs to serve AI/ANs by improving enrollment processes, 

assuring access to care, having efficient payment systems, and increasing the I/T/U capacity to 

deliver integrated, comprehensive programs. 

10




Goal 3: CMS improves and expands opportunities for development and delivery of Long Term 

Services and Support (LTSS) throughout Indian communities. 

Goal 4: All I/T/U programs are fully informed about CMS programs and AI/ANs know about 

benefits to which they are entitled. 

Goal 5: Develop and improve CMS data systems to evaluate and expand the capacity of CMS to 

serve American Indians and Alaska Natives. 

For each goal, a number of objectives are listed with tasks identified that are necessary to achieve each 

objective. 

Budgets for each of the tasks are estimates based on experience and have not been calculated based on 

actual or projected costs. For items related to policy development, it is assumed that CMS staff is 

already funded. It should be noted that the budgets do not consider the time and expenses of TTAG 

members, alternates and their technical advisors who participate in TTAG meetings, subcommittee 

meetings, teleconferences, and other activities. 

11




Goal 1: CMS will execute its federal trust responsibility to engage in meaningful consultation 

with Tribes and work closely with the Tribal Technical Advisory Group. 

Objective 1a – On an annual basis, CMS will engage the TTAG to evaluate and revise the CMS Tribal Consultation 

Policy 

Task 1: Evaluate and revise existing CMS Tribal Consultation Policy, in collaboration with the 

TTAG and CMS Tribal Affairs Group (TAG), and provide an opportunity for Tribal consultation on 

the policy. 

Task 2: CMS will conduct an annual Tribal Consultation session separate and distinct from the 

HHS Department-wide and Regional Tribal Consultation session. 

Budget request: $75,000 per year 

Task 3: In partnership with TTAG and IHS, CMS will develop a written annual report documenting 

and evaluating consultation activities, which will be disseminated to partners in the first quarter 

of each fiscal year. The report will assess both consultation processes and outcomes. This 

detailed report will be used by TTAG to monitor and evaluate consultation processes and their 

impact. 

Budget request: $40,000 per year. These funds will be used to support tracking activities by 

CMS and process evaluations carried out by a qualified tribal consultant/organization, and 

review of the report with relevant stakeholders. 

Objective 1b – In collaboration with the TTAG, CMS will develop mechanisms to involve Tribes in states that 

have federally-facilitated exchanges and partnership exchanges to assure that I/T/U issues are 

addressed in the planning, policies, structure, and operations of those exchanges. 

Task 1: Beginning in 2012, CMS and TTAG will agree on a list of issues that could affect AI/AN 

participation in health insurance exchanges and create workgroups that meet regularly to resolve 

those issues prior to July 2013. 

Objective 1c – Each year, CMS will provide financial and administrative support to facilitate the ongoing 

activities of TTAG, and a sufficient budget to support TTAG activities included in the 2013-2018 

Strategic Plan. 

12




Task 1: CMS will fully fund the Tribal Technical Advisory Group, including TTAG travel, per diem, 

communication needs, basic staffing, and other related expenses for face-to-face meetings up to 

three times per year. TTAG serves as a policy advisory body to CMS, providing expertise on 

policies, guidelines, and programmatic issues affecting the delivery of health care for AI/ANs. 

Budget request: $280,000 per year. Funds will be used to support the travel and per diem 

expenses of TTAG members three times per year, occasional subcommittee meetings, and 

the ongoing communication and professional technical assistance needed to support TTAG 

meetings and activities. 

Task 2: CMS will actively seek to recruit AI/ANs for key policy positions, particularly with regard 

to Indian health care. CMS will develop a personnel succession plan to ensure consistent and 

competent TAG staffing with expertise in the Indian healthcare system. The personnel succession 

plan should include recruitment, training, and promotion strategies, particularly for AI/ANs, 

including internships, cross-training opportunities for IHS employees, recruitment of AI/ANs to 

serve as Native American Contacts (NACs) in regional offices, and/or providing executive 

leadership training for AI/ANs in CMS. 

Budget request: $25,000 per year for succession planning and recruiting as needed. 

Task 3: The Tribal Affairs Group at CMS will report quarterly to TTAG activities and funding for 

implementation of this Strategic Plan. 

Task 4: CMS will retain at least 7 FTE personnel in their Tribal Affairs Group (TAG) who will 

provide policy and administrative support to TTAG. CMS will hire and retain Native American 

Contacts in each of its Regional Office locations. 

Objective 1d – CMS personnel with the authority to make binding decisions will regularly participate in TTAG 

meetings, the Annual DHHS Budget Consultation session, and DHHS regional tribal consultation 

meetings and listening sessions. 

Task 1: On an annual basis, the CMS Administrator, and/or CMS Center and Office Directors, will 

participate in at least three face-to-face meetings with TTAG, along with other CMS officials with 

pertinent expertise in the subject matter at hand. 

Task 2: Key leadership from CMS Headquarters will attend annual DHHS regional tribal 

consultation meetings and listening sessions. 

Objective 1e – CMS will develop a set of standard operating procedures that will be used by the agency to guide 

administrative decisions regarding Indian health policy. 

Task 1: In recognition of the United States trust responsibility described in Appendix B (p. 39), 

TTAG and the CMS Office of External Affairs will work collaboratively to develop a set of standard 

13




operating procedures that can be used by CMS to guide policy formation and Tribal consultation. 

Such procedures should be based on values and principles that promote the federal trust 

responsibility for health care and Tribal consultation. 

Budget request: $40,000 for the first year to develop the standard operating procedures. 

Funds will be used to support the completion of this task by a qualified consultant or Tribal 

Organization, and any partner meetings needed to develop mutually agreed upon standard 

operating procedures. An additional $15,000 per year is requested to monitor compliance 

and evaluate the effectiveness of the standard operating procedures. 

Examples of such values and principles include: 

CMS recognizes that the tribal healthcare delivery system is politically, legally, and culturally 

unique and that policies developed specifically for Indian healthcare can be designed to apply 

only to Indian health programs, and will not be considered to set precedent for other types of 

healthcare delivery system. 

It is a well-settled canon of construction that federal laws enacted for the benefit of Indian Tribes 

are to be given a liberal interpretation, and that doubtful expressions are to be resolved in favor 

of Indian interests. 

Absent express statutory prohibition, CMS shall engage in Tribal consultation and implement 

Tribal recommendations made during such consultations, regarding any CMS policies and actions 

that: 

1. Have Tribal implications, or 

2. Have substantial direct effects on 

a. one or more Indian Tribes, or 

b. the relationship between the Federal Government and Indian Tribes, or 

c. the distribution of power and responsibilities between the Federal 

Government and Indian Tribes. 

CMS will develop enrollment strategies that maximize AI/AN participation in Medicaid, Medicare, 

and CHIP, and health insurance exchanges, and will work collaboratively with I/T/Us to carry out 

identified strategies. 

14




Goal 2: CMS enacts policy through regulation, guidance, review and enforcement to align 

CMS programs to serve American Indians and Alaska Natives by improving enrollment 

processes, assuring access to care, having efficient payment systems, and increasing the I/T/U 

capacity to deliver integrated, comprehensive programs. 

Objective 2a – CMS will work with the TTAG to develop a global approach to funding enrollment assistance 

provided by the I/T/U and eligibility determinations for all CMS supported programs. 

Task 1: Evaluate the number of States that are using Medicaid Administrative Match (MAM) to 

fund enrollment assistance at I/T/Us and the number of I/T/U programs that are receiving this 

funding, and the best approaches to provide financial support (including expansion of MAM to 

other I/T/Us and broadening the programs for which its funding can be used) for assisting AI/ANs 

who use I/T/U programs to enroll in Medicaid, Medicaid Expansion, CHIP, qualified health plans 

through the health insurance exchange, and other insurance and benefits (including those 

provided by the Department of Veterans Affairs (VA), and other new approaches for simplifying 

applications and approvals for enrollment within control of CMS. 

Task 2: Develop mechanisms for the I/T/U to receive Navigator or other funding from the 

federally-facilitated Exchanges, partnership exchanges and state exchanges. 

Task 3: Consider alternative sources of funding for the I/T/U to assist AI/ANs to enroll in CMS 

funded programs, including Medicaid, Medicare, CHIP, and qualified health plans offered through 

exchanges, including special enrollments that may be offered to eligibles. 

Task 4: Streamline systems to offer aggregate payment options and remove any barriers to 

Tribes and others paying premiums for enrollment in federally-funded programs, including 

Medicare, Basic Health Plans, and Health Insurance Exchanges. 

Objective 2b – To maximize access to care and coordination of services for AI/ANs, CMS will work with the TTAG 

to develop processes to assure that I/T/Us can choose to be network providers for managed care 

organizations that deliver services with funding from Medicare, Medicaid, CHIP and Health 

Insurance Exchanges. 

Task 1: CMS will work with the TTAG to develop a prototype Indian Addendum that can be used 

with managed care provider contracts in all programs of CMS to acknowledge the federal laws 

that are specific to the I/T/U and that can affect provider contracts. 

Task 2: CMS will adopt standards of network adequacy for managed care organizations that are 

federally-funded (in whole or part) that require inclusion of I/T/Us as sources of care that are 

geographically accessible and culturally appropriate. 

15




Task 3: CMS will review programs, policies, and payment mechanisms and provide training and 

technical assistance to assure that each I/T/U can be the medical home for the AI/ANs who use 

its services. 

Task 4: CMS will assure that all AI/ANs who are enrolled in a managed care organization through 

Medicare, Medicaid, CHIP or Health Insurance Exchanges can be referred to specialty care by 

I/T/U providers and that the laws and protections regarding deductibles and co-pays for AI/AN 

are followed. 

Objective 2c – CMS will assure that I/T/Us are paid for all services that are covered by CMS supported 

programs and provided to any AI/AN who is enrolled in Medicaid, Medicaid Expansion, Basic 

Health Plans, Medicare, and Health Insurance Exchanges. 

Task 1: CMS will enforce the laws that assure that I/T/Us are paid for off-plan services delivered 

by it or an I/T/U provider to an AI/AN enrolled in a federally funded program by 

assuring that this requirement is included in contracts with managed care organizations 

and preferred provider arrangements, 

providing a point of contact for I/T/U programs that are not able to receive payment for 

services that have been billed, 

informing the managed care or preferred provider organization of its obligation to pay 

for these services, and 

cancelling or not renewing contracts with managed care or preferred provider 

organizations or qualified health plans that do not abide by the applicable statutory and 

contractual and requirements. 

Task 2. CMS will sponsor a conference to engage Tribal technical advisors and others in a better 

understanding of emerging payment approaches in Medicare and Medicaid, analyze how those 

approaches may affect I/T/U participation and revenues, and share that information with I/T/U 

management. 

Budget: $120,000 in 2013. 

Task 3: All CMS programs will review their payment policies for telehealth services and work 

with the TTAG to update those policies to assure that I/T/Us can be paid for telehealth services. 

Task 4: CMS will resolve the problem of paying for Medicaid serves for AI/AN youth who are 

receiving treatment and/or enrolled in boarding schools in a state other than where their parents 

are resident (A/K/A Across State Borders). 

Task 5: CMS will create a workgroup across all CMS programs and with the TTAG to develop 

criteria for I/T/U providers as distinct provider types for enrollment in Medicare and in State 

16




Medicaid programs in order to achieve greater flexibility for services and distinct payment 

methodologies. 

Objective 2d – The CMS Office for Dual Eligibles will work with a subcommittee of the TTAG to assure that 

I/T/Us can participate in new approaches for coordinating services to and associated payments 

for people who are dually eligible for Medicaid and Medicare, and in some cases also eligible for 

services from the VA. 

Task 1: TTAG will form a subcommittee to work with the Office for Dual Eligibles on planning 

new programs, enrollment policies, and payment approaches appropriate for I/T/Us. 

Objective 2e – CMS and the TTAG will work together to assure that AI/AN continue to receive needed services 

and the I/T/U continues to receive payment for those services In the context of States reforming 

their Medicaid programs, creating new types of waivers, choosing whether to implement 

Medicaid Expansion, and eliminating CHIP programs. 

Task 1: CMS will provide information and technical assistance to Tribes and States to allow them 

to adopt the principles and approaches used in the Arizona Medicaid waiver that preserves 

services for AI/ANs. 

Task 2: CMS will notify Tribes affected by State reforms to their Medicaid programs and consult 

with Tribes as soon as practicable on State Medicaid reform proposals. 

Task 3: CMS will, as a condition of approving any State reform proposal, require the State to 

design its proposal to ensure continued AI/AN access to existing covered services and I/T/U 

payment for those services. 

Objective 2f – Offices within CMS that are responsible for enforcement and compliance will work with the TTAG 

to develop approaches for assisting I/T/Us adhere to applicable laws and regulations, to develop 

adequate compliance systems, and to resolve compliance issues. 

Task 1: The CMS TAG will provide training on Indian health care delivery systems to offices 

responsible for enforcement. Such training will include material regarding the unique legal and 

regulatory environment in which I/T/Us carry out their programs. 

Task 2: CMS will expedite consideration of recommendations regarding Safe Harbors submitted 

by Tribes and Tribal Organizations to assure that there is appropriate coordination between 

health care delivery systems without violations of the law. 

Task 3: CMS will work with the TTAG to develop appropriate policies for compliance that 

consider the budgets, size, location, and staffing of I/T/U programs and to develop tiered 

standards that do not unreasonably take resources from direct patient care to comply with CMS 

requirements for accountability. 

17




Task 4: CMS will provide training, technical assistance, and funding for systems’ improvements 

to I/T/Us to assist them to comply with policies with regard to disclosure and auditing. 

Objective 2g– CMS will facilitate implementation of ARRA Section 5006 that authorizes American Indian 

Medicaid Managed Care Entities. 

Task 1: CMS will sponsor a meeting with Tribes, Tribal Organizations, urban Indian 

organizations, and others to share information, provide technical assistance, and identify next 

steps for implementing the creation of American Indian Medicaid Managed Care Entities under 

Section 5006 of ARRA. 

Budget request: $150,000 per year in 2014 and 2015. 

Objective 2h – CMS will create internal processes and funding to facilitate partnerships with Tribes, Tribal 

Organizations, and urban Indian organizations to work together on new policies and approaches 

to better align CMS and I/T/U programs. 

Task 1: CMS will substantively involve TTAG in administrative, regulatory, and legislative policy 

questions before the notice of proposed rule-making (NPRM) and provide funding for a policy 

analyst to track NPRMs, determine whether proposed rules are relevant to Indian health care, 

provide information to the TTAG about the potential impacts of regulations, track TTAG 

comments on NPRMs, and track final regulations to see if they have been responsive to TTAG 

recommendations. 


Task 2. CMS will create better mechanisms to fund cooperative agreements with Tribes, Tribal 

Organizations, and urban Indian organizations to provide policy analysis, outreach and education 

to assist CMS to carry out its mission to improve the health status of AI/ANs through better 

access to care and quality of care. 

Task 3. The CMS Office of Legislation will work with Tribes, Tribal Organizations, and urban 

Indian organizations on mutually beneficial legislation, including revisions to the Affordable Care 

Act to clarify the definition of Indian and to address issues related to Medicaid Expansion that 

were created by the Supreme Court decision. 

Task 4. CMS will move the Tribal Affairs Group from the Office of Public Engagement to the 

Office of the Administrator to more accurately reflect its role in policy development across all 

CMS agencies. 

18




Goal 3: Improve and expand the development and delivery of Long Term Services and 

Support throughout Indian communities. 

Objective 3a - Develop and maintain an interactive data base of current Long Term Services and Supports (LTSS) 

provided by the Indian Health Service, tribal health programs, and urban Indian organizations 

with contact information for the providers. Develop toolkits to assist other health programs to 

evaluate options and develop similar programs. In addition, CMS working with IHS and the 

Administration for Community Living (ACL) in HHS will provide technical assistance to I/T/Us 

developing and taking advantage of these LTSS programs 

Task 1: Working with ACL and IHS, CMS will develop and maintain a website that will serve as an 

AI/AN LTSS portal to: 

1. Facilitate a learning community for the sharing of knowledge and expertise among 

I/T/U health programs by: 

a. Posting lists of existing programs and contacts for each; 

b. Posting technical assistance resources, information, and links; 

c. Hosting web-based seminars and conference calls; 

d. Posting inventory of State Medicaid Plans and waivers that address LTSS in 

states where I/T/U programs are located and updating the inventory at least 

annually; 

e. Research and post “best practices” and models for successful LTSS programs, 

including an analysis and description of prior Elder Care Initiative projects; 

f. Providing information to I/T/Us about training and technical assistance 

resources and potential funding opportunities. 

2. Provide an actively moderated listserv that will make available: 

a. A forum for communication among CMS, IHS, and ACL with I/T/Us as they 

develop LTSS; and 

b. A forum for communication and sharing among I/T/U programs 

Budget request: $125,000 in 2013 and $100,000 per year in 2014 and 2015. 

The website will identify current opportunities and barriers for operation and development of 

LTSS communities where I/T/U programs operate, and present “best practices” or models of 

successful LTSS programs in such locations and information about how I/T/U programs 

participate in these LTSS programs. 

19




Note: In 2011 AoA, IHS and CMS signed a Memorandum of Understanding (MOU) to establish a 

coordinated effort between the agencies to develop methods and means for providing technical 

support to I/T/Us in order to expand development and delivery of LTSS in Indian communities. 

Task 2: CMS will work with the TTAG, IHS, and the Administration for Community Living to 

develop technical assistance materials for I/T/Us that want to develop and take advantage of 

these LTSS programs. 

Objective 3b - CMS will develop an AI/AN LTSS Delivery Plan and a LTSS Roadmap (formerly Toolkit) for I/T/Us 

to provide information and guidance to I/T/Us wishing to research the possibilities of 

implementing LTSS programs in their communities. 

Task 1: CMS will work with TTAG and IHS to 

Assist I/T/Us to assess their current LTSSs and to identify internal and external barriers 

to optimal operation and expansion; 

Develop an AI/AN LTSS Service Delivery Plan containing strategies to overcome existing 

administrative or regulatory policy barriers for the implementation of LTSS in Indian 

communities, including practical guidance from I/T/Us that have already developed 

certain services; and 

Develop recommendations on how to engage States and CMS for financing LTSS in 

Indian communities. 

Task 2: Working with TTAG, IHS, and ACL, CMS will develop a searchable web tool (LTSS 

Roadmap) as a part of the website development in Objective 3a for use by I/T/Us in the 

development of LTSS programs. The Roadmap will include information on LTSS that are 

accessible and/or covered under State Plans and waivers, and will include options available to 

I/T/Us to overcome barriers and improve access to LTSS and financing. 

Budget request: $150,000 per year in 2013, 2014, and 2015. 

Objective 3c - Throughout the next five years, CMS and TTAG will work collaboratively to educate tribal leaders 

about long term care program planning and implementation, particularly regarding services that 

address the needs of elders, veterans, and persons with disabilities. 

Task 1: CMS and TTAG will review annually documents that describe overarching principles and 

talking‐points, regarding the importance of LTSS for AI/ANs in Indian communities and other 

communities where I/T/Us are located and delivery by I/T/U programs, controlling the cost and 

improving the quality of LTSS programs supported with Federal funds, including Medicare and 

Medicaid. 

Task 2: On a quarterly basis, CMS and TTAG will develop audience‐specific educational 

materials for I/T/U leadership and staff that describe strategies to achieve increased access to 

20




LTSS in Indian communities and other communities in which I/T/U programs are located and 

will disseminate these materials to tribal leaders and I/T/U staff. 

Budget request: $100,000 per year. These funds will cover formative research, media 

design, printing, and dissemination. 

Task 3: On an annual basis, CMS will work with TTAG and IHS to identify existing meetings or 

conferences that are attended by I/T/U leaders and staff, at which workshops or 

presentations could be provided on LTSS services in Indian communities and other 

communities in which I/T/U programs are located. When appropriate, experts in this field 

will provide workshops or presentations. 

Budget request: $100,000 per year. These funds will cover travel, per diem, and 

registration expenses for CMS, Tribal and/or expert presentations at five or more national 

meetings/conferences. 

Task 4: ACL, IHS, and CMS will jointly develop and support an annual AI/AN LTSS Conference for 

experts to provide education on LTSS and allow I/T/U LTSS programs to share their experiences, 

showcase best practices, and enhance the LTSS’ learning network. 

Budget request: $200,000 per year in 2013, 2014, and 2015. These funds will cover 

conference planning, facility costs, speaker fees, travel, and registration expenses for a 

national AI/AN LTSS conference. 

Task 5: From 2013-2017, CMS will fund a resource center to build capacity for LTSS for 15 

Tribes, by assisting them with planning and development grants, and providing teams of experts 

to evaluate their existing LTSS, developing specific steps to integrate and expand necessary 

LTSS, and providing program specific assistance in overcoming barriers to accomplishing the 

steps. 

Budget request: $300,000 in 2013; $1.5 million per year in 2014 and 2015 

21




Goal 4: Every Indian Health Service, tribal and urban Indian health program is fully informed 

about CMS programs and every American Indian and Alaska Native knows about the benefits 

to which they are entitled. 

Objective 4a – Maintain effective communications between CMS and Tribes and I/T/U health programs. 

Task 1: CMS will work with the TTAG and its Outreach & Education subcommittee to design and 

implement a communications plan each year that facilitates a better understanding of CMS 

programs among I/T/U providers. 


Task 2: CMS will use national Indian organizations such as the National Indian Health Board 

(NIHB), the National Congress of American Indians (NCAI), National Council of Urban Indian 

Health (NCUIH), and the Tribal Self-Governance Advisory Committee (TSGAC) to share CMS 

information with Tribal governments and I/T/U health programs via established communication 

channels, such as newsletters, websites, e-mails, and meetings. 

Budget request: $150,000 per year. Funds will be used to sponsor national and regional 

Tribal Organizations to disseminate CMS information via established communication 

channels. 

Task 3: At the request of area and national Indian organizations, CMS will participate in tribal 

meetings, such as: the CMS Day at the National Indian Health Board’s Annual Consumer 

Conference; the annual meetings for the National Congress of American Indians, Tribal Self 

Governance, Direct Service Tribes, and Urban Indian Clinics; meetings of Area Indian Health 

Boards; and tribal consultation meetings. 

Budget request: $150,000 in 2013, $175,000 in 2014, $175,000 in 2015. Funds will be used 

for sponsorship and to support registration, exhibit costs, and travel expenses. 

Task 4: CMS should contract with Area Indian Health Boards and other organizations of I/T/U 

programs to publicize CMS trainings and provide travel assistance for tribal participation in 

regional trainings. 

Budget request: $240,000 in 2013, $240,000 in 2014, $250,000 in 2015. Funds will be used 

by regional and national tribal organizations to publicize CMS meetings and facilitate tribal 

participation in regional trainings. 

22




Objective 4b – Provide information, training, and capacity building assistance to the I/T/U regarding CMS 

programs. 

Task 1: In collaboration with TTAG, CMS will develop and implement an annual training plan for 

I/T/U providers using appropriate Information Technology (IT) communication systems, such as 

webinars, Medicine Dish programs, YouTube videos, and other social media. 

Budget request: $100,000 in 2013, $150,000 in 2014, $200,000 in 2015. 

Task 2: CMS will hold 20 training meetings per year to provide information about Medicare, 

Medicaid, CHIP, and Health Insurance Exchanges to I/T/U employees to improve their provision 

of CMS services and increase enrollment of AI/AN beneficiaries. 

Budget request: $750,000 per year. These funds will be used to contract with Area Health 

Boards to hold annual trainings and meetings for I/T/U employees. 

Task 3: CMS will develop, maintain, and update web based manual of CMS policies and guidance 

that are specifically related to AI/AN and the I/T/U. 

Budget request: $100,000 in 2013, $125,000 in 2014, and $150,000 in 2015. 

Task 4: All Tribes Calls will be scheduled specifically for issues related to Indian healthcare at 

least 6 times per year, with TTAG assisting in developing topics for the calls. 

Budget request: $100,000 per year. 

Task 5: CMS and its contractors will provide tribal-specific ICD-10 training in each of the 12 Areas 

of the Indian Health Service, and other coding training as needed. 


Objective 4c – Provide training and technical assistance for I/T/U programs to maximize enrollment of eligible 

AI/ANs in Medicaid, Medicaid Expansion, Medicare, CHIP, and Health Insurance Exchanges. 

Task 1: CMS will provide training and technical assistance to I/T/Us and States to improve access 

to sustainable sources of compensation for I/T/Us to provide enrollment assistance to AI/ANs for 

CMS programs, such as Medicaid Administrative Match (MAM), and Navigator funding for 

Exchange enrollment. 


Task 2: CMS will provide training and technical assistance to I/T/Us and States to increase 

utilization by I/T/Us of electronic enrollment applications and determinations, and new 

approaches to simplification of enrollment processes. 


23




Task 3: CMS, in collaboration with TTAG, will develop a simple and practical handout for use by 

I/T/U personnel, States, and other entities providing enrollment assistance to AI/ANs that 

explains the special provisions they qualify for because of their status as AI/ANs in CMS 

programs. 


Objective 4d – Provide materials and marketing designed to inform American Indians and Alaska Natives about 

CMS programs for which they may be eligible. 

Task 1: CMS will develop, design, produce, and disseminate materials that are culturally 

appropriate and effective in AI/AN communities, with an emphasis on the new Medicaid 

Expansion and Health Insurance Exchanges, by: 

Hiring graphic artists who are AI/AN 

Developing a television campaign with AI/AN images and messages that are 

appropriate for people using Indian health programs 

Developing radio programs for tribal radio stations 

Placing materials in effective communication channels 

Translating materials as needed 


24




Goal 5: Develop and Improve CMS data systems to evaluate and expand the capacity 

of CMS to serve American Indians and Alaska Natives. 

Objective 5a – CMS will create data systems that identify AI/AN appropriately to assure that they are provided 

the benefits and protections under laws and regulations (such as waiver of co-payments and 

deductibles) under Medicaid, CHIP, Basic Health Plans, and Health Insurance Exchanges. 

Task 1: CMS and TTAG will create a joint workgroup on Data and Policy to assure that AI/AN 

provisions of ARRA and ACA, as well as other laws and regulations, are implemented in 

the eligibility and enrollment processes, including designating and implementing the 

federal data hub for eligibility; to assure that computer systems used by providers flag 

AI/AN cost sharing protections; and to appropriately designate AI/ANs for reporting and 

performance metrics, including assessing levels of enrollment. 

Task 2: Twice a year CMS will hold a day of meetings at CMS central offices in Baltimore for 

TTAG Data and Policy Subcommittee members to exchange information with key CMS 

staff in policy implementation, data systems, and innovations to understand the 

changes that are occurring with the implementation of health care legislation and how 

they could affect AI/AN enrollment and I/T/U provider participation in CMS programs. 

Task 3: The attendees will make recommendations to the CMS TTAG regarding approaches 

needed to change CMS and other data collection systems for implementation of health 

care legislation and suggest topics on the effects on AI/AN and I/T/U for follow-up. 

Task 4: Make the CMS data and any findings from the data systems available online, in 

presentations at AI/AN and CMS conferences, and in reports, so that AIAN stakeholders 

can use the data and findings. 

Budget request: $150,000 per year for Objective 5a. 

Objective 5b – Develop and improve data for AI/AN populations within and outside of the IHS healthcare 

delivery system that can be used to evaluate CMS program enrollment, health care delivery, 

outcomes, and payments across states and IHS Areas during the implementation of ACA, CHIPRA, 

ARRA, and any subsequent health care policy changes. 

Task 1: Establish baseline enrollment rates in CMS programs and federally facilitated Health 

Insurance Exchanges for AI/ANs and monitor changes in the rates. 

25




Task 2: Establish baseline usage indicators for CMS program health care services used by AI/ANs 

and monitor changes in the usage. 

Task 3: Determine health outcomes in CMS programs of care for AI/ANs. 

Task 4: Establish baseline CMS program payments for health care for AI/ANs and monitor 

changes in the payments. 

Task 5: Make the evaluation data sets and findings available online, in presentations at AI/AN 

and CMS conferences, and in reports, so that AIAN stakeholders can use the data and 

findings. 

Budget request: $300,000 per year for Objective 5b. 

Objective 5c – Produce an AI/AN CMS Data Symposium on the impact of the implementation of ACA, CHIPRA, 

ARRA, and any subsequent health care policy changes on AI/AN and I/T/U providers. 

Task 1: CMS will sponsor a one-day Data and Policy Conference bringing together experts in 

demographic, services ,and policy analysis from outside CMS to better understand the 

impacts of the legislative health care reforms relevant to AI/AN and I/T/U providers. 

Task 2: Conduct conference planning sessions with CMS staff, and secure the necessary 

personnel, materials, facilities, and equipment to accomplish the tasks needed to plan, 

prepare, and execute the Conference including making site arrangements for the event 

and travel arrangements for speakers. 

Task 3: Provide brief descriptions of three research projects that could be carried out using the 

American Indian specific data developed to date that might have utility to Tribes, IHS 

funded health providers, state Medicaid programs or Health Benefit Exchanges. 

Task 4: Provide a technical writer for the symposium who shall prepare a draft Data Symposium 

Summary report within 4 weeks after the event. 

Task 5: Make summaries of the presentations available online and in a report, so that AI/AN and 

CMS stakeholders can benefit from the data and findings. 

Budget request: $50,000 for one conference. 

26




Objective 5d – CMS and TTAG annually will update and review its AI/AN research and evaluation plan to better 

track and evaluate CMS program services and policy impacts on AI/ANs and ITUs. 

Task 1: CMS will work with the TTAG and its subcommittees, Tribal Epidemiology Centers, and 

the HHS Health Research Advisory Committee for AI/ANs (HRAC) to update the plan to 

identify additional data development and analysis work. 

Task 2: Carry out additional data development and analysis activities that are of high impact or 

of a time sensitive nature. 

Budget request: $75,000 per year for objective 5d. 

27

Draft Report: Currently being circulated for Tribal leader and health director review and comment. Please provide 

comments by October 30, 2012 to Liz Heintzman at the National Indian Health Board at EHeintzman@nihb.org. 

APPENDIX A: PLAN SUMMARY AND BUDGET 

Goal 1: CMS engages in meaningful consultation with Tribes and work closely with the Tribal Technical Advisory Group (TTAG). 

Objectives & Tasks FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 FY 2018 

Objective 1a – On an annual basis, CMS will engage the TTAG to evaluate and revise the CMS Tribal Consultation Policy 

Task 1: Evaluate and revise existing CMS Tribal Consultation 

Policy, in collaboration with the TTAG and CMS Tribal Affairs 

Group (TAG), and provide an opportunity for Tribal 

consultation on the policy. 

 

Task 2: Conduct an annual Tribal Consultation session. 75,000 75,000 75,000 75,000 75,000 75,000 

Task 3: Written annual report documenting and evaluating 

consultation activities disseminated to partners in the first 

quarter of each fiscal year to assess both consultation 

processes and outcomes. 

40,000 40,000 40,000 40,000 40,000 40,000 

Objective 1b – In collaboration with the TTAG, CMS will develop mechanisms to involve tribes in states that have federal-facilitated exchanges and partnership 

exchanges to assure that I/T/U issues are addressed in the planning, policies, structure, and operations of those exchanges. 

Task 1: Beginning in 2012, health insurance exchanges 

workgroups that meet regularly to resolve issues. 

 

Objective 1c – Each year, CMS will provide financial and administrative support to facilitate the ongoing activities of TTAG, and a sufficient budget to support TTAG 

activities included in the 2013-2018 Strategic Plan. 

Task 1: CMS will fully fund the Tribal Technical Advisory Group. 280,000 280,000 280,000 280,000 280,000 280,000 

Task 2: CMS will actively seek American Indians and Alaska 

Natives to hire for key policy positions. 

25,000 25,000 25,000 25,000 25,000 25,000 

28



Task 3: The Tribal Affairs Group at CMS will report quarterly to 

TTAG 

activities and funding for implementation of this Strategic Plan 

Task 4: CMS will retain at least 7 FTE personnel in the Tribal Affairs 

Group. 

 

 

Objective 1d – CMS personnel with the authority to make binding decisions will regularly participate in TTAG meetings, the Annual DHHS Budget Consultation session, 

and DHHS regional tribal consultation meetings and listening sessions. 

Task 1: On an annual basis, the CMS Administrator, the CPC 

Director, the CMM Director, and the CMSO Director will 

participate in at least 3 face-to-face meetings with TTAG, along 

with other CMS officials. 

Task 2: Key leadership from CMS Headquarters will attend 

annual DHHS regional tribal consultation meetings and 

listening sessions. 

 

 

Objective 1e – By fiscal year 2013, CMS will develop a set of standard operating procedures that will be used by the agency to guide administrative decisions regarding 

Indian health policy 

Task 1: TTAG and the CMS Office of External Affairs will 

develop standard operating procedures that can be used by 

CMS to guide policy formation and Tribal consultation. 

40,000 15,000 15,000 15,000 15,000 15,000 

SUBTOTAL 460,000 435,000 435,000 435,000 435,000 435,000 

29



Goal 2: CMS enacts and implements policy through regulation, guidance, review and enforcement to align CMS programs to serve AI/AN by 

improving enrollment processes, assuring access to care, having efficient payment systems, and increasing the I/T/U capacity to deliver integrated, 

comprehensive programs. 

Objective 2a – CMS will work with the TTAG to develop a global approach to funding enrollment assistance provided by the I/T/U and eligibility determinations for all 

CMS programs. 

Task 1: Evaluate the number of States and Tribes using 

MAM to fund enrollment assistance and other 

approaches for assisting AI/AN who use I/T/U facilities 

to enroll in CMS programs through the health insurance 

exchange websites, and ways to simplifying 

applications and approvals for enrollment. 

Task 2: Develop mechanisms for the I/T/U to receive 

Navigator or other funding from the Federallyfacilitated 

Exchanges, the partnership exchanges and 

the state exchanges. 

Task 3: Consider alternative sources of funding for the 

I/T/U to assist AI/AN to enroll in CMS funded programs, 

including Medicaid, Medicare and dual eligibles. 

Task 4: Streamline systems to offer aggregate payment 

options and 

remove any barriers to Tribes and others paying 

premiums for enrollment in CMS programs. 

 

 

 

 

Objective 2b – To maximize access to care and coordination of services for AI/ANs, CMS will work with the TTAG to develop processes to assure that the I/T/U can 

choose to be network providers for managed care organizations that deliver services with funding from Medicare, Medicaid, CHIP and Health Insurance Exchanges. 

Task 1: Develop a prototype Indian Addendum that 

can be used with managed care provider contracts in all 

CMS programs. 

 

30



Task 2: Adopt network adequacy standards to include 

I/T/U for managed care organizations funded through 

CMS programs. 

Task 3: Review programs, policies, payment 

mechanisms and provide training and technical 

assistance to assure that the I/T/U can be the medical 

home for AI/AN who use their services. 

Task 4: Assure that AI/AN who are enrolled in 

managed care organization through CMS programs can 

be referred to specialty care by I/T/U providers and 

that the laws and protections regarding deductibles 

and co-pays for AI/AN are followed. 

 

 

 

Objective 2c – CMS will assure that the I/T/U is paid for all services provided that are covered by CMS programs for all AI/AN who are enrolled in Medicaid, Medicaid 

Expansion, Basic Health Plans, Medicare, and Health Insurance Exchanges. 

Task 1: CMS enforces the law that assures that the 

I/T/U is paid for off-plan services by managed care 

organizations with CMS funding. 

Task 2: CMS will sponsor a conference to engage Tribal 

technical advisors and others on emerging payment 

approaches, analyze how those approaches may affect 

I/T/U, and share that information. 

Task 3: All CMS programs will review their payment 

policies to assure that the I/T/U can be paid for 

telehealth services delivered to AI/AN. 

Task 4: CMS will pay for Medicaid serves for AI/AN 

youth who are 

receiving treatment and/or enrolled in boarding 

schools in a different state from their parents (A/K/A 

Across State Borders). 

Task 5: CMS will create a workgroup across all agencies 

and with the TTAG to develop criteria for I/T/U 

providers as distinct provider types for enrollment in 

Medicare and Medicaid. 

 

120,000 0 0 0 0 0 

 

 

 

31



Objective 2d – The Office for Dual Eligibles will work with a subcommittee of the TTAG to assure that there is integration of the Indian health system in new 

approaches for coordinating services and payments for people who are eligible for Medicaid and Medicare, and in some cases also eligible for services from the VA. 

Task 1: Workgroup on policy and data to implement 

AI/AN provisions of ARRA and ACA on eligibility and 

enrollment, federal data hub, and computer systems 

used by providers to flag AI/AN cost sharing 

protections, and performance metrics. 

 

Objective 2e – CMS and the TTAG will work together to assure that AI/AN continue to receive needed services and the I/T/U continues to receive payment for those 

services In the context of States reforming their Medicaid programs, creating new types of waivers, choosing whether to implement Medicaid Expansion, and 

eliminating CHIP programs. 

Task 1: Information and technical assistance to Tribes 

and States to adopt principles and approaches used in 

Arizona Medicaid waiver to preserve services for AI/AN. 

Task 2: Notify Tribes about State Medicaid reforms and 

consult with them. 

Task 3: State Medicaid reform proposals approval 

contingent on continued services for AI/AN from I/T/U, 

and payment for those services. 

 

120,000 0 0 0 0 0 

 

Objective 2f – Offices within CMS that are responsible for enforcement and compliance will work with the TTAG to develop reasonable approaches for assuring that 

I/T/U adheres to laws and regulations. 

Task 1: Training on Indian health care delivery systems 

to CMS offices responsible for enforcement. 

Task 2: Expedite consideration of recommendations 

regarding Safe 

Harbors submitted by Tribes and Tribal Organizations. 

Task 3: Develop appropriate policies for compliance 

with tiered standards that consider the budgets, size, 

location and staffing of I/T/U facilities. 

 

 

 

32



Task 4: Training, technical assistance, and funding for 

systems 

improvement to the I/T/U to comply with policies on 

disclosure and 

auditing. 

 

Objective 2g– CMS will facilitate ARRA Section 5006 that authorizes American Indian Medicaid Managed Care Entities. 

Task 1: Sponsor a meeting on the creation of 

American Indian Medicaid Managed Care Entities under 

Section 5006 of ARRA. 

0 150,000 150,000 0 0 0 

Objective 2h – CMS will create internal processes and funding to facilitate partnerships with Tribes and Tribal organizations to work together on new policies and 

approaches to better align CMS and I/T/U programs. 

Task 1: Maintain funding for regulation review. 250,000 250,000 250,000 250,000 250,000 250,000 

Task 2: Create better mechanisms to fund cooperative 

agreements with Tribes and Tribal Organizations. 

Task 3: The CMS Office of Legislation will work with 

Tribes on mutually beneficial legislation, including 

revisions to ACA to clarify the definition of Indian and 

to address issues related to Medicaid Expansion. 

Task 4: Move the CMS Tribal Affairs Group from the 

Office of Public Engagement to the Office of the 

Administrator. 

 

 

 

SUBTOTAL 490,000 400,000 400,000 250,000 250,000 250,000 

33



Goal 3: CMS Improves and expands the development and delivery of Long Term Services and Support (LTSS) throughout Indian communities. 

Objective 3a - Develop and maintain an interactive data base of current Long Term Services and Supports (LTSS) provided by the Indian Health Service (IHS), tribal 

health programs, and urban Indian health programs (I/T/U) with contact information for the providers. Develop tool kits to assist other health programs to evaluate 

options and develop similar programs. In addition, CMS working with IHS and the Administration for Community Living (ACL) in HHS will provide technical assistance 

to I/T/Us developing and taking advantage of these LTSS programs 

Task 1: Working with ACL and IHS, CMS will develop 

and maintain a 

website that will serve as an AI/AN LTSS portal. 

Task 2: CMS will work with the TTAG, IHS and ACL to 

develop technical assistance materials for I/T/U. 

125,000 100,000 100,000 0 0 0 

 

Objective 3b - CMS will develop an AI/AN LTSS Delivery Plan and a LTSS Roadmap (formerly Toolkit) for Indian communities to provide information and guidance to 

I/T/Us wishing to research the possibilities of implementing LTSS programs in their communities. 

Task 1: Assist I/T/Us to assess their current LTSSs, 

develop an AI/AN LTSS Service Delivery Plan, and 

develop recommendations to engage States and CMS 

for financing LTSS in Indian communities. 

Task 2: Develop a searchable web tool (LTSS 

Roadmap) as a part of the website development. 

 

150,000 150,000 150,000 0 0 0 

Objective 3c- Throughout the next five years, CMS and TTAG will work collaboratively to educate tribal leaders about long term care program planning and 

implementation, particularly regarding services that address the needs of elders, veterans, and persons with disabilities. 

Task 1: Annually review documents for I/T/U that 

describe principles and talking‐points about the 

importance of LTSS, controlling costs, and improving 

quality. 

 

34



Task 2: Quarterly development and dissemination of 

audience‐specific educational materials for I/T/U 

leadership and staff that describe strategies to achieve 

increased access to LTSS in Indian communities. 

Task 3: Annually identify existing meetings or 

conferences attended by I/T/U leaders and provide 

presentations there on LTSS services in Indian 

communities. 

100,000 100,000 100,000 100,000 100,000 100,000 

100,000 100,000 100,000 100,000 100,000 100,000 

Task 4: Support annual AI/AN LTSS Conference. 200,000 200,000 200,000 0 0 0 

Task 5: Fund a resource center to build capacity for 

LTSS for 15 Tribes. 

300,000 1,500,000 1,500,000 0 0 0 

SUBTOTAL 975,000 2,150,000 2,150,000 200,000 200,000 200,000 

Goal 4: Every I/T/U facility is fully informed about CMS programs and every AI/AN knows about benefits to which they are entitled. 

Objective 4a – Maintain effective communications between CMS and Tribes. 

Task 1: Design and implement annual communications 

plan that facilitates a better understanding of CMS 

programs among I/T/U providers. 

Task 2: CMS will use tribal organizations to share CMS 

information with Tribes via established communication 

channels. 

Task 3: At the request of tribal organizations, CMS will 

participate in tribal meetings. 

Task 4: CMS should contract with Area Indian Health 

Boards and other Tribal organizations to publicize CMS 

trainings and provide travel assistance for Tribal 

participation in regional trainings. 

Objective 4b – Provide information, training and capacity building assistance to the I/T/U regarding CMS programs. 

25,000 25,000 25,000 25,000 25,000 25,000 

150,000 150,000 150,000 150,000 150,000 150,000 

150,000 175,000 175,000 175,000 175,000 175,000 

240,000 240,000 250,000 250,000 250,000 250,000 

35



Task 1: Develop and implement annual training plan 

for I/T/U providers using appropriate Information 

Technology (IT) communication systems. 

Task 2: Hold 20 training meetings per year to provide 

information about CMS programs to I/T/U employees. 

Task 3: Develop, maintain and update web based 

manual of CMS policies and guidance specifically 

related to AI/AN and the I/T/U. 

Task 4: All Tribes Calls related to Indian healthcare at 

least 6 times per year. 

Task 5: Tribal-specific ICD-10 training in each of the 12 

Areas of the IHS. 

100,000 150,000 200,000 200,000 200,000 200,000 

750,000 750,000 750,000 750,000 750,000 750,000 

100,000 125,000 150,000 100,000 100,000 100,000 

100,000 100,000 100,000 100,000 100,000 100,000 

200,000 750,000 850,000 200,000 200,000 200,000 

Objective 4c – Provide training and technical assistance for I/T/U facilities to maximize enrollment of eligible AI/AN in Medicaid, Medicaid Expansion, Medicare, CHIP 

and Health Insurance Exchanges. 

Task 1: Training and technical assistance to I/T/U and 

States to identify enrollment assistance funding for 

CMS programs. 

Task 2: Training and technical assistance to I/T/U and 

States to increase use of electronic enrollment 

applications and determinations, and simplification of 

enrollment processes. 

Task 3: Develop a simple and practical handout for 

enrollment assistance that explains the special 

provisions for AI/ANs in CMS programs. 

100,000 100,000 100,000 100,000 100,000 100,000 

500,000 500,000 500,000 500,000 500,000 500,000 

125,000 200,000 125,000 0 0 0 

Objective 4d – Provide materials and marketing designed to inform AI/AN consumers about CMS programs for which they may be eligible. 

36



Task 1: CMS will develop, design, produce and 

disseminate create materials that are culturally 

appropriate and effective in AI/AN communities, with 

an emphasis on the new Medicaid Expansion and 

Health Insurance Exchanges. 

500,000 500,000 500,000 500,000 500,000 500,000 

SUBTOTAL 3,040,000 3,765,000 3,875,000 3,050,000 3,050,000 3,050,000 

Goal 5: Develop and improve CMS data systems to evaluate and expand the capacity of CMS to serve American Indians and Alaska Natives. 

Objective 5a – CMS will create data systems that identify AI/AN appropriately to assure that they are provided the benefits and protections under law and regulations 

(such as waiver of co-payments and deductibles) under Medicaid, Basic Health Plans, and Health Insurance Exchanges. 

Task 1: Workgroup on policy and data to implement 

AI/AN provisions of ARRA and ACA on eligibility and 

enrollment, federal data hub, and computer systems 

used by providers to flag AI/AN cost sharing protections, 

and performance metrics. 

Task 2: Twice a year CMS will hold a day of meetings at 

CMS for TTAG Data and Policy Committee members to 

exchange information with key CMS staff. Attendees will 

make recommendations to the CMS TTAG and suggest 

topics for follow-up. Presentations at AI/AN and CMS 

conferences, and in reports. 

 

150,000 150,000 150,000 150,000 150,000 150,000 

Objective 5b – Develop and improve data for the AI/AN populations within and outside of the IHS healthcare delivery system that can be used to evaluate CMS 

program enrollment, health care delivery, outcomes and payments across states and IHS Areas during the implementation of ACA, CHIPRA, ARRA and any subsequent 

health care policy changes. 

Task 1: Establish baseline enrollment rates for AI/ANs 

and monitor 

changes. 

Task 2: Establish baseline usage indicators for AI/ANs 

and monitor 

changes. 

 

 

37



Task 3: Determine health outcomes for AI/ANs in CMS 

programs. 

Task 4: Establish baseline CMS program payments for 

health care for AI/AN and monitor changes. 

Task 5: Make evaluation data sets and findings available 

online, in presentations at AI/AN and CMS conferences, 

and in reports. 

 

 

300,000 300,000 300,000 300,000 300,000 300,000 

Objective 5c – Produce an AI/AN CMS Data Symposium on the impact of the implementation of ACA, CHIPRA ARRA and any subsequent health care policy changes on 

AI/AN and I/T/U providers. 

Task 1: Sponsor AI/AN Data and Policy Conference. 

Task 2: Conduct conference planning sessions with CMS 

staff, and secure the necessary personnel, materials, 

facilities and equipment to accomplish the tasks needed 

to plan, prepare and execute the Conference including 

making site arrangements for the event and travel 

arrangements for speakers. 

Task 3: Provide brief descriptions of three research 

projects that could be carried out using AI/AN specific 

data. 

Task 4: Technical writer for the symposium shall prepare 

Data Symposium Summary. 

Task 5: Make summaries of the presentations available 

online, and in a report. 

 

 

 

50,000 0 0 0 0 0 

Objective 5d – CMS and TTAG annually will update and review its AI/AN research and evaluation plan to better track and evaluate CMS program services and policy 

impacts on AI/AN’s and ITU’s. 

38



Task 1: CMS will work with the TTAG and its Sub 

Committees, Tribal 

Epidemiology Centers, and the DHHS Health Research 

Advisory Committee 

for AI/AN (HRAC) to update the plan to identify additional 

data 

development and analysis work. 

Task 2: Carry out additional data development and 

analysis activities that are of high impact or of a time 

sensitive nature. 

TOTAL 

S 

 

75,000 75,000 75,000 75,000 75,000 75,000 

575,000 525,000 525,000 525,000 525,000 525,000 

TOTALS 5,540,000 7,275,000 7,385,000 4,460,000 4,460,000 4,460,000 

39

Draft Report: Currently being circulated for Tribal leader and health director review and 

comment. Please provide comments by October 30, 2012 to Liz Heintzman at the 

National Indian Health Board at EHeintzman@nihb.org. 

Appendix B: Legal Basis for Special CMS Provisions for American Indians and Alaska Natives 

I. Introduction 

Carol Barbero, Esq. 5 

Elliott Milhollin, Esq. 

Hobbs, Straus, Dean and Walker, LLP 

November 2012 

There is a special relationship between the United States and Indian Tribes that creates a trust 

responsibility toward Indian people regarding health care. The existence of this truly unique obligation 

supplies the legal justification and moral foundation for health policy making specific to American 

Indians and Alaska Natives (AI/ANs) – with the objectives of enhancing their access to health care and 

overcoming the chronic health status disparities of this segment of the American population. 

It is beyond question that the obligation to carry out the trust responsibility to Indians applies to all 

agencies of the federal government – including the Centers for Medicare & Medicaid Services (CMS) – 

as evidenced by Presidential Executive Orders and Special Memoranda. 6 Furthermore, with regard to 

health care for AI/ANs, federal law assigns comprehensive duties to the Secretary of the Department of 

Health and Human Services (HHS) in order to achieve the goals and objectives established by Congress 

for Indian health. The trust responsibility, and laws enacted pursuant thereto, provides ample 

authority for the Secretary – whether acting through the Indian Health Service (IHS), CMS, or other 

agency of HHS – to take pro-active efforts to achieve the Indian health objectives Congress has 

articulated. 

5 The initial version of this Appendix D appeared in the first Strategic Plan submitted to CMS in 2005 by the CMS Tribal 

Technical Advisory Group. In that submission, the author acknowledged the Northwest Portland Area Indian Health Board 

(NPAIHB) and its member tribes for their generous support of the author’s earlier work which provided foundation for that 

paper. That earlier paper, titled "The Federal Trust Responsibility: Justification for Indian-Specific Health Policy," was 

presented at the National Roundtable on the Indian Health System and Medicaid Reform sponsored by the NPAIHB at the 

Urban Institute on August 31, 2005. This Appendix D has been updated to reflect significant Indian-specific health policy 

legislative and administrative actions that have occurred since it was originally drafted. The authors would like to thank the 

United South and Eastern Tribes, Inc. for its generous support in updating this Appendix D. 

6 See, e.g., Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 6, 2000) reprinted in 2000 U.S.C.C.A.N. at B77; White House 

Memorandum for Heads of Executive Departments and Agencies, Nov. 5, 2009; Dep't of Health and Human Services Tribal 

Consultation Policy (Dec. 14, 2010); Centers for Medicare and Medicaid Services Tribal Consultation Policy (Nov. 17, 2011); 

Cramer v. United States, 261 U.S. 219 (1923). 

40




HHS and CMS both recognize this authority in their tribal consultation policy: 

Since the formation of the Union, the United States (U.S.) has recognized 

Indian Tribes as sovereign nations. A unique government-to-government 

relationship exists between Indian Tribes and the Federal Government 

and this relationship is grounded in the U.S. Constitution, numerous 

treaties, statutes, Federal case law, regulations, and executive orders that 

establish and define a trust relationship with Indian Tribes. This 

relationship is derived from the political and legal relationship that Indian 

Tribes have with the Federal Government and is not based upon race. 

This special relationship is affirmed in statutes and various Presidential 

Executive Orders … 7 

While CMS often looks to the Social Security Act for authority, the historic and complex body of federal 

Indian law and case law applies throughout the federal government to all agencies, including CMS. The 

intent of this paper is to provide a brief summary of federal Indian law that is most relevant to current 

and future regulations and guidance regarding participation of Indians and the Indian health system in 

Medicare, Medicaid, Child Health Insurance Programs, and health insurance exchanges. 

II. The United States has a Trust Responsibility to Indians 

A. Origins of the trust responsibility to Indians 

The federal trust responsibility to Indians, and the related power to exercise control over Indian affairs 

in aid of that responsibility, is rooted in the United States Constitution – most significantly the Indian 

Commerce Clause, the Treaty Clause, and the exercise of the Supremacy Clause. 8 The Constitution 

contains no explicit language that defines the trust relationship. Rather, the parameters of the trust 

responsibility have evolved over time through judicial pronouncements, treaties, Acts of Congress, 

Executive Orders, regulations, and the ongoing course of dealings between the federal government 

and Indian tribal governments. 

7 Dep't of Health and Human Services Tribal Consultation Policy (Dec. 14, 2010), at 1; Centers for Medicare and Medicaid 

Services Tribal Consultation Policy (Nov. 17, 2011), at 1. 

8 Morton v. Mancari, 417 U.S. 535, 551-552 (1974) ("The plenary power of Congress to deal with the special problems of 

Indians is drawn both explicitly and implicitly from the Constitution itself."); McClanahan v. Arizona State Tax Comm’n, 411 

U.S. 164, 172, n.7 (1973); see also TASK FORCE No. 9, VOL. 1, AMERICAN INDIAN POLICY REVIEW COMM’N 31 (1976) 

(explaining the origins of Constitutional power to regulate Indian affairs as flowing from Congress’s treaty making powers, 

powers to regulate commerce with Indian tribes, and its authority to withhold appropriations); FELIX S. COHEN, HANDBOOK 

OF FEDERAL INDIAN LAW 418-423 (2005); Reid Payton Chambers, Judicial Enforcement of the Federal Trust Responsibility to 

Indians, 27 STAN. L. REV. 1213, 1215-1220 (1975). 

41




The earliest formal dealings between the federal government and Indian Tribes were undertaken 

through treaty-making. From the United States’ perspective, treaty objectives were essentially twofold: 

cessation of hostilities to achieve and maintain public peace, and acquisition of land occupied by 

tribal members. Tribes doubtless had a peace-making motive as well, but in return for the vast tracts 

of land they relinquished to the more powerful federal government, Tribes also obtained the promise – 

expressed or implied – of support for the social, educational, and welfare needs of their people, 

including health care. These treaties/promises were the first expression of the federal government’s 

obligation to Indian tribes. 

The initial express recognition that a trust responsibility existed came from the courts. In the landmark 

case of Cherokee Nation v. Georgia, 30 U.S, 1 (1831), Chief Justice John Marshall established the legal 

foundation for the trust responsibility by describing Indian Tribes as “domestic dependent nations” 

whose relationship with the United States “resembles that of a ward to his guardian.” Id. At 17. That 

theme – and the duty of the federal sovereign to Indian Tribes – carried forward some 50 years later 

when, in United States v. Kagama, 118 U.S. 375, 384 (1886), the Supreme Court acknowledged that 

Tribes are under the protection and care of the United States: 

From their very weakness and helplessness, so largely due to the course 

of dealing of the federal government with them, and the treaties in which 

it has been promised, there arises the duty of protection, and with it the 

power [of protection]. 9 

Through nearly two centuries of case law, the courts have extensively examined the parameters of the 

trust responsibility to Indians, frequently in the context of whether the federal government has the 

authority to perform an action and whether there are limitations on the exercise of Congressional 

power over Indian affairs. While Congress has plenary authority over Indian matters through the 

Constitution, the “guardian-ward” relationship articulated by Chief Justice Marshall requires that 

federal actions be beneficial, or at least not harmful, to Indian welfare. This is not to say, however, 

that the United States has always acted honorably toward Indians throughout its history. 10 

Nonetheless, the fact that our government has failed in some instances to act in an honorable manner 

9 See also Board of County Commissioners of Creek County v. Seber, 318 U.S. 705, 715 (1943) ("Of necessity the United 

States assumed the duty of furnishing . . . protection [to Indian tribes] and with it the authority to do all that was required 

to perform that obligation . . . ."). 

10 An example is unilateral abrogation of Indian treaties by Congress. See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553 

(1903). 

42




toward Indians does not and should not absolve the more powerful sovereign from its responsibility to 

carry out its obligations honorably. 

B. “Indian” as a political rather than a racial classification: Indian-specific lawmaking and 

the “rationally related” standard of review 

In pursuit of its authority under the Constitution and the trust responsibility, Congress has enacted 

Indian-specific laws on a wide variety of topics 11 as well as included Indian-specific provisions in 

general laws to address Indian participation in federal programs. 12 In the landmark case of Morton v. 

Mancari, 417 U.S. 535 (1974), the Supreme Court set out the standard of review for such laws – the 

“rational basis” test. In Mancari, the Court reviewed an assertion by non-Indians that the application 

of Indian preference in employment at the Bureau of Indian Affairs (as ordered in the Indian 

Reorganization Act 13 ) was racially discriminatory under the then-recently amended civil rights law 

which prohibited racial discrimination in most areas of federal employment. 

11 See, e.g., Indian Health Care Improvement Act, 25 U.S.C. § 1601, et seq.; Indian Self-Determination and Education 

Assistance Act, 25 U.S.C. §450, et seq.; Indian Education Act, 20 U.S.C. §7401, et seq.; Tribally Controlled Schools Act, 25 

U.S.C. §2501, et seq.; Tribally Controlled College or University Assistance Act, 25 U.S.C. §1801, et seq.; Native American 

Housing Assistance and Self-Determination Act, 25 U.S.C. §4101, et seq.; Indian Child Welfare Act, 25 U.S.C. §1901, et seq.; 

Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. §3201, et seq.; Indian Employment, Training, and 

Related Services Demonstration Act, 25 U.S.C. §3401, et seq. 

12 See, e.g., 42 U.S.C. §1395qq (eligibility of IHS/tribal facilities for Medicare payments); 42 U.S.C. §1396j (eligibility of 

IHS/tribal facilities for Medicaid payments); 42 U.S.C. §1397bb(b)(3)(D) (assurance of CHIP services to eligible low-income 

Indian children); Elementary and Secondary Education Act, as amended, 20 U.S.C. §6301, et seq. (funding set-asides 

throughout this law for the benefit of children enrolled in the Bureau of Indian Affairs school system); Impact Aid Program, 

20 U.S.C. §7701, et seq. (federal aid to public school districts for Indian children living on Indian lands); Carl D. Perkins 

Vocational and Applied Technology Education Act, 20 U.S.C. §§2326 and 2327 (funding set-aside for Indian vocational 

education programs and tribal vocational Institutions); Higher Education Act, 20 U.S.C. §1059c (funding for triballycontrolled 

higher education institutions); Individuals with Disabilities Education Act, 20 U.S.C. §1411(c) (funding set-aside 

for Bureau of Indian Affairs schools); Head Start Act, 42 U.S.C. §9801, et seq. (includes funding allocation for Indian tribal 

programs and special criteria for program eligibility); Federal Highway Act, 23 U.S.C. §101, et seq. (1998, 2005, 2008 and 

2012 amendments include funding set-asides for Indian reservation roads programs and direct development of regulations 

through Negotiated Rulemaking with tribes); American Recovery and Reinvestment Act of 2009, P.L. 111-5 (Feb. 17, 2009) 

(§5006 making amendments to the Social Security Act to provide various protections for Indians under Medicaid and CHIP, 

discussed below); Patient Protection and Affordable Care Act, P.L. 111-148 (Mar. 23, 2010) (various Indian specific 

provisions, discussed below). 

13 25 U.S.C. §461, et seq. The Indian hiring preference appears at 25 U.S.C. §472. 

43




While the Supreme Court’s civil rights jurisprudence has generally applied strict scrutiny when 

reviewing classifications based on race, color, or national origin, 14 in Mancari the Court determined 

that this test was not appropriate when reviewing an Indian employment preference law. Indeed, the 

Court declared that the practice under review was not even a “racial” preference. Rather, in view of 

the unique historic and political relationship between the United States and Indian Tribes, the Court 

characterized the preference law as political rather than racial, and said that “[a]s long as the special 

treatment [for Indians] can be tied rationally to the fulfillment of Congress’ unique obligation toward 

the Indians, such legislative judgments will not be disturbed.” Id. At 555. The Court found that hiring 

preferences in the federal government’s Indian service were intended “to further the Government’s 

trust obligation toward the Indian tribes,” to provide greater participation in their own selfgovernment, 

and “to reduce the negative effect of having non-Indians administer matters that affect 

Indian tribal life” in agencies, such as the BIA, which administer federal programs for Indians. Id. At 

541-542 (emphasis added). 15 

Once the link between special treatment for Indians as a political class and the federal government’s 

unique obligation to Indians is established, “ordinary rational basis scrutiny applies to Indian 

classifications just as it does to other non-suspect classifications under equal protection analysis.” 

Narragansett Indian Tribe v. National Indian Gaming Comm’n., 158 F.3d 1335, 1340 (D.C. Cir. 1998). 

The Indian hiring preference sanctioned by the Court in Mancari is only one of the many activities the 

Court has held are rationally related to the United States’ unique obligation toward Indians. The Court 

14 The Supreme Court has interpreted Title VI to allow racial and ethnic classifications only if those classifications are 

permissible under the Equal Protection Clause. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978). In this regard, 

the Court has also stated that "all racial classifications, imposed by whatever federal, state, or local governmental actor, 

must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if 

they are narrowly tailored measures that further compelling governmental Interests." Adarand Constructors, Inc. v. Pena, 

515 U.S. 200, 227 (1995). 

15 

Indian Preference provisions are not limited to the BIA, and have been applied in a variety of federal programs for the 

benefit of Indians. Section 7 of the Indian Self Determination Act, for example, establishes a broad federal policy of 

providing hiring, training, and contracting preferences for Indians in contracts or grants with Indian organizations across all 

federal agencies. 25 U.S.C. § 450e(b). Indian preference provisions are also found in other statutes. See, e.g., 42 U.S.C. § 

9839(h) (establishing an Indian hiring preference at American Indian Programs Branch of Head Start Bureau); 20 U.S.C. § 

3423c(c) (establishing an Indian employment preference in the Office of Indian Education in the Department of Education). 

See also Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984) (Indian Preference Act requires Secretary of HHS to adopt 

standards for evaluating qualifications of Indians for employment in the Indian Health Service that are separate and 

independent from general civil service standards). 

44




has upheld a number of other activities singling out Indians for special or preferential treatment, e.g., 

the right of for-profit Indian businesses to be exempt from state taxation, Moe v. Confederated Salish 

& Kootenai Tribes, 425 U.S. 463, 479-80 (1976); fishing rights, Washington v. Washington State 

Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 673 n.20 (1979); and the authority to apply 

federal law instead of state law to Indians charged with on-reservation crimes, United States v. 

Antelope, 430 U.S. 641, 645-47 (1977). The Court in Antelope explained its decisions in the following 

way: 

The decisions of this Court leave no doubt that federal legislation with 

respect to Indian tribes, although relating to Indians as such, is not based 

upon impermissible racial classifications. Quite the contrary, 

classifications singling out Indian tribes as subjects of legislation are 

expressly provided for in the Constitution and supported by the ensuing 

history of the Federal Government’s relations with Indians. 

Antelope, 430 U.S. at 645 (emphasis added). 

The courts continue to acknowledge the special political status of Indians and to uphold legislation 

singling out Indians on that basis. See, e.g., Am. Fed’n of Gov’t Employees, AFL-CIO v. United States, 

330 F.3d 513, 522-23 (D.C. Cir. 2003) (finding outsourcing preference for Indian-owned firms was 

rationally related to the legitimate legislative purpose of promoting the economic development of 

federally recognized Tribes and their members); United States v. Wilgus, 638 F.3d 1274, 1287-88 (10 th 

Cir. 2011) (upholding exception to the Bald Eagle Protection Act for Indian tribal members to possess 

eagle feathers). 

III. Congress’s Recognition of the Federal Trust Responsibility in Health Laws 

Since the early part of the 20 th century, Congress has enacted a number of laws that authorize, direct, 

and fund the provision of health care services to Indian people. 16 Here we focus on the most 

significant legislative enactments intended to ensure access of Indian people to federally-assisted 

health care programs and to enhance the viability of Indian Health Service and tribal programs that 

serve the Indian population. 

A. The Indian Health Care Improvement Act 

16 See, e.g., Snyder Act, 25 U.S.C. § 13; Johnson-O'Malley Act, 25 U.S.C. § 452; Transfer Act, 42 U.S.C. § 2001, et seq. 

(transferred responsibility for Indian health to Public Health Service); annual appropriations to the Indian Health Service 

included in the Interior and Related Agencies Appropriations Acts. 

45




The Indian Health Care Improvement Act (IHCIA) 17 was originally enacted in 1976 as Public Law 94-437. 

It brought statutory order and direction to the delivery of federal health services to Indian people. Its 

legislative history catalogued the deplorable conditions of Indian health that demanded legislative 

attention: inadequate and under-staffed health facilities; improper or non-existent sanitation facilities; 

prevalence of disease; poor health status; inadequate funding; 18 low enrollment of Indians in 

Medicare, Medicaid, and Social Security; serious shortage of health professionals, including Indian 

health professionals; and the need for health care for Indian people who had moved from reservations 

to urban areas. The legislation addressed each of these deficiencies through focused titles: Manpower; 

Health Services; Health Facilities (including sanitation facilities); Access to Medicare and Medicaid; 

Urban Indian Health; and a feasibility study for establishing an American Indian School of Medicine. 19 

The IHCIA has been periodically reauthorized and amended since 1976. In 2010, the law was 

comprehensively amended and authorized as a permanent law of the United States. 20 

Throughout its history, the IHCIA has contained an unequivocal recognition of the United States’ 

responsibility to improve the health of Indian people, to provide federal health services to this 

population, and to foster maximum Indian participation in health care program management. The 

2010 amendments reiterated and reinforced these federal commitments through the following 

provisions: 

Congressional Findings 

The Congress finds the following: 

(1) Federal health services to maintain and improve the health of the Indians are consonant with and 

required by the Federal Government’s historical and unique legal relationship with, and resulting 

responsibility to, the American Indian people. 

(2) A major national goal of the United States is to provide the resources, processes, and structure that will 

enable Indian tribes and tribal members to obtain the quantity and quality of health care services and 

17 25 U.S.C. §1601, et seq. The Indian Health Care Improvement Act was amended and permanently reauthorized by 

Section 10221 of the Patient Protection and Affordable Care Act, P.L. 111-148 (Mar. 23, 2010). 

18 The House Interior and Insular Affairs Committee noted that per capita spending on Indian health in 1976 was 25 

percent less than the average American per capita amount. H.R. REP. No. 94-1026, pt. I, at 16 (1976), reprinted in 1976 

U.S.C.C.A.N. 2652, 2655. According to the U.S. Commission on Civil Rights, IHS per capita spending for Indian medical care 

in 2003 was 62 percent lower than the U.S. per capita amount. U.S. Commission on Civil Rights, Broken Promises: 

Evaluating the Native American Health Care System (Sept. 2004), at 98. 

19 The IHCIA was later amended to include formal establishment of the Indian Health Service as an agency of DHHS. Pub. 

L. No. 100-713 (1988). The IHS establishment is codified at 25 U.S.C. § 1661. 

20 Sec. 10221 of the Patient Protection and Affordable Care Act, P.L. 111-148 (Mar. 23, 2010). 

46




opportunities that will eradicate the health disparities between Indians and the general population of the 

United States. 

(3) A major national goal of the United States is to provide the quantity and quality of health services which 

will permit the health status of Indians to be raised to the highest possible level and to encourage the 

maximum participation of Indians in the planning and management of those services. 

(4) Federal health services to Indians have resulted in a reduction in the prevalence and incidence of 

preventable illnesses among, and unnecessary and premature deaths of, Indians. 

(5) Despite such services, the unmet health needs of American Indian people are severe and the health status 

of the Indians is far below that of the general population of the United States. 21 

Declaration of National Indian Health Policy 

Congress declares that it is the policy of this Nation, in fulfillment of its special trust responsibilities and legal 

obligations to Indians – 

(1) to ensure the highest possible health status for Indians and urban Indians and to provide all resources 

necessary to effect that policy; 

(2) to raise the health status of Indians and urban Indians to at least the levels set forth in the goals contained 

within the Healthy People 2010 initiative or successor objectives; 

(3) to ensure maximum Indian participation in the direction of health care services so as to render the 

persons administering such services and the services themselves more responsive to the needs and 

desires of Indian communities; 

(4) to increase the proportion of all degrees in the health professions and allied and associated health 

professions awarded to Indians so that the proportion of Indian health professions in each Service are is 

raised to at least the level of that of the general population; 

(5) to require that all actions under this chapter shall be carried out with active and meaningful consultation 

with Indian tribes and tribal organizations, and conference with urban Indian organizations, to implement 

this chapter and the national policy of Indian self-determination; 

(6) to ensure that the United States and Indian tribes work in a government-to-government relationship to 

ensure quality health care for all tribal members; and 

(7) to provide funding for programs and facilities operated by Indian tribes and tribal organizations in 

amounts that are not less than the amounts provided to programs and facilities operated directly by the 

Service. 22 

It is important to note that these expressions of policy, obligation, and objectives apply to the federal 

government as a whole. The Act reposes responsibility for their implementation in the Secretary of 

Health and Human Services. While the Indian Health Service has first-line responsibility for 

administering the Indian health system, the Secretary of HHS remains the official with ultimate 

responsibility to see that programs are performed as directed and the objectives established by 

Congress are achieved. Thus, the obligation to exercise the trust responsibility for Indian health, to 

implement the expressed policies, and to achieve the stated goals extend to the Centers for Medicare 

& Medicaid Services, as an agency of HHS. 

B. Statutory Authority for Participation in Medicare and Medicaid 

21 25 U.S.C. §1601. 

22 25 U.S.C. §1602. 

47




In the 1976 IHCIA, Congress amended the Social Security Act to extend to Indian health facilities the 

authority to collect Medicare and Medicaid reimbursements. Prior to these amendments, the IHS, as a 

federal agency, was not permitted to claim reimbursements from Medicare and Medicaid. 

• Sec. 1880 23 made IHS hospitals (including those operated by Indian Tribes 24 ) eligible to collect 

Medicare reimbursement. 

• Sec. 1911 25 made IHS and tribal facilities eligible to collect reimbursements from Medicaid 

• An amendment to Sec. 1905(b) 26 applied a 100 percent federal medical assistance percentage 

(FMAP) to Medicaid services provided to an Indian by an IHS or tribally-operated facility. 

Sections 1880 and 1911 were intended to bring additional revenue into the Indian health system in 

order to address the deplorable condition of Indian health facilities, many of which were in such a poor 

state they were unable to achieve accreditation. The application of a 100 percent FMAP to the 

Medicaid-covered services provided by these facilities was made in express recognition of the federal 

government’s treaty obligations for Indian health. The Committee of jurisdiction observed that since 

the United States already had an obligation to pay for health services to Indians as IHS beneficiaries, it 

was appropriate for the U.S. to pay the full cost of their care as Medicaid beneficiaries. 27 This action is 

consistent with the status of AI/ANs as a political designation. 

Through amendments to Sec. 1880 made in 2000, 2003 and 2010, IHS and tribal hospitals and clinics 

are authorized to collect reimbursements for all Medicare Part A and Part B services. As health care 

providers, IHS and tribal health programs are authorized to collect reimbursements under Medicare 

Parts C and D, as well. 28 

23 42 U.S.C. §1395qq. 

24 Tribes and tribal organizations are authorized to operate IHS-funded hospitals and clinics through contracts and 

compacts issued pursuant to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450, et seq. 

25 42 U.S.C. §1396j. 

26 42 U.S.C. §1396d(b). 

27 H.R. REP. No. 94-1026, pt. III, at 21 (1976), as reprinted in 1976 U.S.C.C.A.N. 2782, 2796. 

28 

In fact, Congress expressly authorized the Secretary of HHS to issue standards to assure access by pharmacies operated 

by the IHS, tribes and urban Indian organizations to the Medicare Part D prescription drug benefit (42 U.S.C. §1395w- 

104(b)(1)(C)(iv)), and required the Secretary to establish procedures (including authority to waive requirements) to assure 

participation by these pharmacies in the transitional assistance feature of the temporary discount drug program. 42 U.S.C. 

48




C. Statutory Authority for Participation in CHIP 

IHS and tribal health providers are authorized to collect payments when providing services to 

individuals enrolled in the Children’s Health Insurance Program (CHIP). 29 To assure that low-income 

Indian children who are CHIP-eligible are not overlooked, Congress, when creating the program in 

1997, expressly required States to describe in their State plans the procedures they will use to assure 

access for these children. 30 

D. Indian-Specific Provisions Designed to Ensure Indian Access to Medicaid, Medicare and 

CHIP 

Since early 2009, Congress has added several significant provisions to Titles XIX and XXI of the Social 

Security Act that give voice to the federal government’s unique responsibility to Indian people and the 

need to remove barriers to their participation in Medicaid and CHIP, especially when AI/ANs eligible for 

those programs receive services from Indian health providers. We highlight these actions below. 

Proof of Citizenship for Medicaid Enrollment. In the Deficit Reduction Act of 2005 (DRA), 

Congress directed that on and after July 1, 2006, persons who apply to enroll or renew 

enrollment in Medicaid must provide documentary proof of identity and U.S. citizenship, and 

identified the types of documents that would be acceptable proof. Indian health advocates 

feared – correctly, as it turns out – that many AI/ANs would not possess sanctioned 

documentation of their status as U.S. citizens. Recognizing the barrier this presented for Indian 

access to Medicaid and CHIP, in 2009 Congress amended these requirements to designate 

documents issued by a federally-recognized Indian Tribe evidencing an individual’s 

membership, enrollment in, or affiliation with such Tribe as satisfactory evidence of U.S. 

citizenship. 31 Significantly, Congress gave tribal documentation “tier I” status – the same as a 

U.S. passport. Individuals presenting tribal affiliation documentation would not be required to 

present any additional identity documentation. 

§1395w-141(g)(5)(B). Congress added language in the Affordable Care Act to allow Indian patients to qualify for the 

catastrophic coverage phase of the Part D program. 42 U.S.C. §1395w–102(b)(4)(C). 

29 42 U.S.C. §2105(c)(6)(B); see also 25 U.S.C. §1647a. 

30 42 U.S.C. §2103(a)(3)(D). 

31 42 U.S.C. §1396b(x)(3)(B), as added by Sec. 211 of the Children’s Health Insurance Program Reauthorization Act of 2009 

(P.L. 111-3) (Feb. 4, 2009). 

49




This legislative action recognizes not only the historic reality that Indian people were the 

original occupants of the North American continent, it also implements in the clearest possible 

way the policy of maintaining a government-to-government relationship with Indian Tribes. It 

also demonstrates respect for the sovereignty of Tribes both to determine tribal membership 

and to issue legal documents. As a practical matter, amending the law to order acceptance of 

tribal documentation underscores Congress’s recognition of its continued responsibility to 

enact Indian-specific legislation when needed to assure full access to federal programs. 

Medicaid Premium and Cost-Sharing Protections. Pursuant to an amendment to Medicaid 

made in 2009, States are prohibited from imposing any premium or cost-sharing on an Indian 

for a covered service provided by the IHS, a health program operated by an Indian Tribe, Tribal 

Organization or urban Indian organization, or through referral under contract health services. 32 

Disregard of Certain Indian Property from Resources for Medicaid and CHIP Eligibility. In 2009, 

Congress amended the Medicaid and CHIP laws to exempt from the resources calculation 

certain enumerated types of Indian property. Primarily, the excluded property is of a type that 

flows to an individual Indian by virtue of his/her membership in a Tribe. 33 

Medicaid Estate Recovery Protections. In an express endorsement of a provision in the CMS 

State Medicaid Manual, in 2009 Congress statutorily exempted certain Indian-related income, 

resources and property held by a deceased Indian from the Medicaid estate recovery 

requirement. 34 The objective of the Manual and statutory protection was to remove a 

disincentive to enrollment for Indian people eligible for Medicaid. 

Special Indian-specific Rules for Medicaid Managed Care. In 2009, Congress removed several 

barriers to full and fair participation of Indian people and Indian health providers in Medicaid 

programs operated through managed care entities. This gave an Indian Medicaid enrollee the 

option to select an Indian health program as his/her primary care provider, and directed that 

32 42 U.S.C. §§1396o(j) and 1396o-1(b)(3)(vii), as added by Sec. 5006(a) of the American Recovery and Reinvestment Act 

of 2009 (P.L. 111-5) (Feb. 17, 2009). In recognition of the trust responsibility, Indian children have been exempt from costsharing 

in the CHIP program pursuant to regulation at 42 C.F.R. §457.535. 

33 42 U.S.C. §§1396a(ff) and 1397gg(e)(1)(H), as added by Sec. 5006(b) of the American Recovery and Reinvestment Act of 

2009 (P.L. 111-5) (Feb. 17, 2009). 

34 42 U.S.C. §1396p(b)(3)(B), as added by Sec. 5006(c) of the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) 

(Feb. 17, 2009). 

50




Indian health providers (IHS, tribal, and urban Indian organization programs) be paid at a rate 

not less than that of the managed care entity’s network provider. 35 These changes were 

needed to overcome the reluctance of managed care entities to admit Indian health providers 

to their networks and to reimburse them for services provided to Indian Medicaid enrollees. 

Authority for Tribal Medicaid Administrative Match. Federal funds may not be used to meet 

State matching requirements, except as authorized by Federal law. In 2005, CMS issued a State 

Medicaid Director letter that permits Indian Tribes and Tribal Organizations to certify funds 

received under the Indian Self-Determination and Education Assistance Act as public 

expenditures to be used as the non-Federal share of expenditures to fulfill State matching 

requirements for administrative claiming activities under the Medicaid program. These 

activities include, among other things, outreach and application assistance for Medicaid 

enrollment and activities that ensure appropriate utilization of Medicaid services by Medicaid 

beneficiaries. 

E. Solicitation of Input from Indian Health Programs. 

In recognition of the need to assure that impacts on the unique Indian health system by proposed 

changes in Medicare, Medicaid, and CHIP are fully evaluated, Congress placed in the Social Security Act 

a requirement for prior notice to and solicitation of input from IHS, tribal health programs, and urban 

Indian organizations. On the federal level, this requirement is to be carried out by CMS through 

maintenance of the Tribal Technical Advisory Group originally chartered by the agency in 2003. 36 

States are required to solicit advice from IHS and tribal health programs and urban Indian organizations 

within their borders prior to submission of any state plan amendments, waiver requests, and 

demonstration projects to CMS. 37 

35 42 U.S.C. §1396u-2(h), as added by Sec. 5006(d) of the American Recovery and Reinvestment Act (P.L. 111-5) (Feb. 17, 

2009). 

36 42 U.S.C. §1320b-24, as added by Sec. 5006(e)(1) of the American Recovery and Reinvestment Act (P.L. 111-5) (Feb. 17, 

2009). The maintenance of the Tribal Technical Advisory Group does not substitute for government-to-government 

consultation with tribes. 

37 42 U.S.C. §§1396a(a)(73) and 1397gg(e)(1)(C), as added by Sec. 5006(e)(2) of the American Recovery and Reinvestment 

Act (P.L. 111-5) (Feb. 17, 2009). 

51




F. Cap on Rates Charged for Contract Health Services. 

Modeling on the Medicare Provider Agreement provision that caps the amount a hospital can charge 

for services purchased by the Department of Veterans Affairs, in 2003 Congress enacted a similar 

limitation on the amount a Medicare participating hospital may charge for services purchased by 

Indian health programs operated by the IHS, Tribes, and Tribal Organizations, and urban Indian 

organizations (I/T/Us). As a condition for participation in Medicare, such hospitals must accept 

patients referred by I/T/Us in accordance with the admission practices, payment methodology, and 

payment rates set forth in Secretarial regulations, and may accept no more than the payment rates set 

by the Secretary. 38 This statutory rate cap is often referred to by the shorthand “Medicare-like rates.” 

In regulations issued by IHS and CMS in 2007, the maximum amount a Medicare hospital is permitted 

to accept for a service purchased by an I/T/U is the applicable Medicare rate. 39 

These statutory and regulatory actions are intended to enable I/T/Us to achieve greater economies for 

the services they must purchase for their Indian patients with funds appropriated for contract health 

services. 

G. Indian-Specific Provisions Designed to Ensure Indian Access to the Health Insurance 

Exchanges 

The Patient Protection and Affordable Care Act (ACA) was enacted by Congress in 2010 in order to 

reform the health insurance market and make health insurance more accessible and affordable for all 

Americans. It imposes a responsibility on most Americans to acquire or maintain health insurance 

coverage, and contains a number of provisions intended to strengthen health insurance consumer 

protections and enhance the health care workforce. Congress included a number of provisions 

designed to ensure that Indians could take advantage of the new reforms. We highlight several of 

these below. 

Exemption from Penalty for Failure to Comply with the Individual Mandate. Although Congress 

designed the law to make nearly all Americans responsible for acquiring or maintaining 

acceptable levels of health insurance coverage, Congress specifically exempted members of 

Indian Tribes from the tax penalty for failure to obtain acceptable coverage. 40 This provision is 

38 42 U.S.C. §1395cc(a)(1)(U), as added by the Medicare Modernization Act of 2003 (P.L. 108-173). 

39 72 Fed. Reg. 30706 (June 4, 2007), adding Subpt. D to 42 C.F.R. Part 136, and adding §489.29 to 42 C.F.R. Part 489. 

These regulations became effective on July 5, 2007. 

40 26 U.S.C. §5000A(e)(3). 

52




based on the theory that the United States is responsible for providing health care to Indians, 

but it has failed to supply an acceptable package of benefits through the Indian Health Service. 

Having failed in that responsibility, it would violate the trust responsibility to require Indians to 

pay for non-IHS coverage or be assessed a tax penalty for failing to do so. 

Cost-Sharing Protections for Indians Enrolled in a Health Insurance Exchange Plan. The 

Affordable Care Act prohibits assessment of any cost-sharing for any service provided by an 

Indian health provider to an AI/AN enrolled in an Exchange plan. Furthermore, no cost sharing 

may be assessed by non-Indian health providers to an AI/AN enrolled in such a plan if the 

individual receives services through an Indian health provider or through contract health 

services. Indians with income below 300 percent of the Federal Poverty Level do not have cost 

sharing in the private sector even if they do not have a referral from an Indian health provider. 

The Secretary of HHS is responsible for paying the Exchange plan the additional actuarial cost 

that results from these cost-sharing protections. 41 

Special enrollment periods for AI/AN. The ACA provides special enrollment periods for AI/ANs 

for health insurance exchanges. This is another measure to provide access to this important 

source of funding for the I/T/U. 

These provisions are designed to reduce the costs for AI/ANs to access the Exchange plans and to 

provide incentives for them to do so, as well as to increase the likelihood that I/T/Us will receive 

payments from health insurance exchange plans for services they provide to AI/Ans. 

IV. Executive Branch Recognition of the Federal Trust Responsibility in Administering Federal 

Health Programs 

A. Executive Branch Administration of the Trust Responsibility 

The Executive Branch is responsible for carrying out the federal trust responsibility to provide health 

care to Indians. The federal government’s general trust duty to provide social services and its duty as a 

trustee to protect and manage Indian trust property are different types of duties and thus are treated 

differently by the courts. 42 Courts have generally been reluctant to impose liability for the federal 

government’s failure to provide social services under the general trust relationship. 43 One notable 

41 42 U.S.C. §18071(d). 

42 Seminole Nation v. United States, 316 U.S. 286, 297 (1942). 

43 See, e.g., Gila River Pima-Maricopa Indian Community v. U.S., 427 F.2d 1194 (Ct.CI. 1970), cert. denied. 400 U.S. 819 

(1970). 

53




exception is the case of Morton v. Ruiz 44 where the Supreme Court said the Bureau of Indian Affairs 

erred in refusing to provide welfare benefits to unemployed Indians who lived off, but near, their 

reservation. The Court reiterated that the “overriding duty of our Federal Government [is] to deal 

fairly with Indians wherever located”, and that BIA’s failure to publish eligibility criteria through 

Administrative Procedure Act regulations was not consistent with the “distinctive obligation of trust 

incumbent upon the Government in its dealings” with Indians. 45 

The IHCIA policy statements quoted above expressly recognize a trust responsibility to maintain and 

improve the health of Indians, and establish a national policy to assure the highest possible health 

status to Indians, as well as to provide all resources necessary to effect that policy. While currently 

there may be no available mechanism to enforce these policies judicially, this does not make them 

meaningless. They establish the goals, which the Executive Branch – particularly the Department of 

Health and Human Services – must strive to achieve as it implements federal law. In fact, they justify – 

indeed, require – the Executive Branch to be proactive and use its resources “to assure the highest 

possible health status for Indians and urban Indians and to provide all resources necessary to effect 

that policy.” 25 U.S.C. §1602(1). The Executive Branch has a dual duty – to carry out the policy 

established by Congress in federal law, and to perform the United States’ trust responsibility to Indians 

in accord with the Congressionally-established standard. 

Indian people take the United States at its word when reading the policy statement in the IHCIA, and 

have a right to expect its trustee to achieve the goal of assuring them the highest possible health 

status. As stated by Justice Black in his lament over the U.S. breaking faith with Indians, “Great 

nations, like great men, should keep their word.” 46 

B. CMS Administration of the Trust Responsibility 

As part of DHHS, and as an agency required to implement statutory provisions intended to benefit 

Indian health, CMS should affirmatively advance policy objectives as set out by Congress in the IHCIA 

when making Indian-related decisions in the Medicare and Medicaid programs. The trust responsibility 

and the federal laws enacted to carry it out not only permit CMS to treat AI/ANs served by the Indian 

44 415 U.S. 199 (1974). 

45 Id. at 236. See also Chambers, note 2, supra, at 1245-46 (arguing that courts should apply the trust responsibility as a 

"fairness doctrine" in suits against the United States for breach of a duty to provide social services). 

46 Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting), 

54




health system as unique Medicare and Medicaid consumers entitled to special treatment, they require 

it. 

CMS shares the responsibility to carry out the policy goals established by Congress in the IHCIA. Both 

the HHS and CMS tribal consultation policies recognize “the unique government to government” 

relationship between the United States and Tribes, as well as the trust responsibility “defined and 

established” by “the U.S. Constitution, numerous treaties, statutes, Federal case law, regulations, and 

executive orders.” 47 One manifestation of this trust responsibility is CMS’s recognition that “CMS and 

Indian Tribes share the goals of eliminating health disparities for American Indians and Alaska Natives 

(AI/AN) and of ensuring that access to Medicare, Medicaid, the Children’s Health Insurance Program 

(CHIP), and Exchanges is maximized.” 48 Through its consultation policy, CMS has committed to 

consulting with Indian Tribes when developing policy that may affect Indians. 

CMS has exercised its authority to administer federal health care programs and interpret the statutes 

within its jurisdiction in a manner that assures access by Indian people and participation by the unique 

Indian health delivery system. In recent decades, CMS (previously HCFA) has taken steps to carry out 

the trust responsibility to Indians in its administration of the Medicare, Medicaid, and CHIP programs. 

Each was a rational exercise of the agency’s authority and fully justified by the United States’ special 

obligations to Indian Tribes. 

A summary of these actions follows: 

Authority for Tribal Facilities to Bill Medicaid at the Same Rate as IHS Facilities. In 1996, 

through a Memorandum of Agreement with IHS, HCFA re-interpreted the term “facility of the 

Indian Health Service” in Section 1911 (Medicaid) to allow a tribally-owned facility operated 

under an ISDEAA agreement to elect designation as a “facility of the Indian Health Service.” 

Previously, HCFA had interpreted the term “facility of the Indian Health Service” to include only 

facilities actually owned or leased by IHS. The MOA enabled these tribally-owned facilities to 

bill Medicaid at the annually-established Medicaid billing rates for IHS facilities and applied the 

100 percent FMAP to Medicaid services provided by such facilities. 

Exemption of IHS and Tribal Clinics from the Outpatient Prospective Payment System. In 2002, 

the Director of the Center for Medicare agreed to continue the exemption of IHS and tribal 

clinics from the Outpatient Prospective Payment System. 

47 Centers for Medicare & Medicaid Services Tribal Consultation Policy (Nov. 17, 2011), at 1; U.S. Dep't of Health and 

Human Services Tribal Consultation Policy (Dec. 14, 2010), at 1. 

48 Centers for Medicare & Medicaid Services Tribal Consultation Policy (Nov. 17, 2011), at 2. 

55




CMS has Broadly Defined the Hospital Services that are Subject to the Medicare-like Rates Cap. 

In 2007, CMS issued regulations implementing Section 506 of the Medicare Modernization Act 

to require all Medicare-participating hospitals to accept Medicare-like rates when providing 

services to I/T/U beneficiaries. The final regulations broadly defined hospital and critical access 

hospital services subject to the rule to include inpatient, outpatient, skilled nursing facilities, 

and any other service or component of a hospital. 42 C.F.R. §136.30; 42 C.F.R. §489.29. 

IHS and Tribal Facility Participation in Medicaid. The 1996 IHS/HCFA MOA incorporated the 

regulatory policy that states must accept as Medicaid providers IHS facilities that meet state 

requirements, but these facilities are not required to obtain a state license. 42 C.F.R. §431.110. 

Thus, it applied this regulatory policy to tribally-owned facilities. Congress converted this policy 

into law for all federally-funded health programs serving AI/AN in the 2010 amendments to the 

Indian Health Care Improvement Act. 49 

Cost-Sharing Protections for Indian Children in CHIP. In 1999, HCFA issued guidance, followed 

by a proposed rule, that prohibits states from imposing any cost-sharing on AI/AN children 

under CHIP, citing the unique federal relationship with Indian Tribes. This rule was 

subsequently promulgated in final form. 42 C.F.R. §457.535. This HCFA regulation reflects the 

agency’s interpretation of how best to carry out the statutory provision requiring states to 

demonstrate how they will assure CHIP access for eligible Indian children. 42 U.S.C. 

§1397bb(b)(3)(D). In 2000, HCFA announced that the policy prohibiting cost sharing for Indian 

children under CHIP would be extended to Section 1115 Medicaid demonstration projects and 

stated the agency would no longer approve Section 1115 projects that impose such costsharing. 

66 Fed. Reg. 2490, 2526 (Jan. 11, 2001). 

State-Tribal Consultation on Medicaid Programs. In 2001, CMS issued a policy statement that 

requires states to consult with Tribes within their borders on Medicaid waiver proposals and 

waiver renewals before submitting them to CMS. 50 Congress subsequently made this 

consultation requirement statutory, adding State Plan Amendments and demonstration 

49 25 U.S.C. §1647a. 

50 Letter from Health Care Fin. Admin. To State Medicaid Directors (July 17, 2001) 

http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/smd071701.pdf. 

56




projects as requisite subjects of tribal consultation. 51 CMS informed the States of this 

consultation requirement on several occasions and codified the 2001 policy statement. 52 In 

May of 2012, CMS announced that it would not accept the waiver applications submitted by 

New Mexico and Kansas until they met the tribal consultation requirements. 

CMS Tribal Technical Advisory Group. In 2003, CMS chartered a Tribal Technical Advisory Group 

comprised of tribal officials and tribal employees to advise the agency on Medicare, Medicaid, 

and CHIP issues that impact Indian health programs. CMS’s foresight was met with approval by 

Congress, which granted the TTAG explicit statutory status in 2009 and added representatives 

of the IHS and urban Indian organizations to the TTAG’s membership. 42 U.S.C. §1320b-24. 

Indian Health Addendum Required for Medicare Part D Pharmacy Contracts. When 

implementing the Medicare Part D drug benefit, CMS recognized that special terms and 

conditions in pharmacy contracts would be needed to assure that IHS, tribal, and urban Indian 

organization pharmacies would be able to participate in the Part D program. The agency 

requires Part D plans to include the CMS-approved text of an Indian Health addendum in 

contracts offered to those pharmacies. 42 C.F.R. §423.120(a)(6). The addendum addresses 

several aspects of federal law and regulations applicable to those pharmacies, such as Federal 

Tort Claims Act coverage (obviating the need for privately-purchased professional liability 

insurance). 53 

Approval of Indian-specific State Medicaid Plan Provision. In April of 2012, CMS approved an 

Arizona Medicaid waiver request through which several optional Medicaid services can 

continue to be covered at IHS and tribal facilities, although they are otherwise discontinued 

from coverage in the State’s plan. When these services are provided to Indian patients at IHS 

and tribal facilities, the 100 percent FMAP continues to apply. This action is a significant 

acknowledgement by CMS that it has the authority and the obligation to carry out its trust 

responsibility for Indian health. 

51 42 U.S.C. §§1396a(a)(73) and 1397gg(e)(1)(C), as added by Sec. 5006(e)(2) of the American Recovery and Reinvestment 

Act (P.L. 111-5) (Feb. 17, 2009). 

52 CMS SMD #09-003 (June 17, 2009); CMS SMDL #10-001 (Jan. 22, 2010); 77 Fed. Reg. 11678 (Feb. 27, 2012). 

53 

The text of the Addendum is included in the Medicare program's solicitation for applications for new cost plan 

sponsors. See, e.g., "Medicare Prescription Drug Benefit, Solicitation for Applications for New Cost Plan Sponsors, 2012 

Contract Year," at 131. 

57




Carrying out the trust responsibility to Indians in these and other ways coincides with and compliments 

CMS’s stated program objectives. 

V. The Unique Nature of the Indian Health System 

The IHS-funded system for providing health services to AI/ANs is one-of-a kind; it is unlike any other 

mainstream health delivery system. In fact, the federal government created and designed the system 

in use today for the specific purpose of serving Indian people in the communities in which they live. 

Overall, the Indian health programs have a community-based approach and seek to provide culturallyappropriate 

services. As demonstrated in this Plan, the IHS system was created for Indian people as a 

political class, not as a racial group. These circumstances require unique rules and policies from CMS 

to enable IHS-funded programs to fully access Medicare, Medicaid, and CHIP and to achieve the 

agency’s health disparities elimination objective. 

We outline below some of the unique circumstances of this health system and of Indian Tribes that 

have been established or recognized by federal law and regulations: 

Limited service population. The IHS health care system is not open to the public. It is 

established to serve AI/AN beneficiaries who fall within the eligibility criteria established by the 

IHS. See 42 C.F.R. §136.12. 54 The IHS estimates the service population served by IHS and 

tribally-operated programs in more than 30 states is approximately 2.1 million AI/Ans. 

No cost assessed to patients. IHS serves AI/AN beneficiaries without cost. For several years, 

Congress reinforced this policy with language in the annual IHS appropriations act that 

prohibited the agency to charge for services without Congressional consent. 55 IHS services at 

no cost to the Indian patient remains IHS policy today. Some members of Congress have 

described the IHS as a pre-paid health plan – pre-paid with land ceded by Tribes to the U.S. 

government. 

54 Under certain circumstances non-Indians connected with an Indian beneficiary (such as minor children and spouses) 

can receive services as beneficiaries. Other non-Indians may receive services in carefully defined circumstances, but are 

liable for payment. See 25 U.S.C. §1680c. 

55 See, e.g., Pub. L. No. 104-134, 110 Stat. 1321-190 (April 26, 1996). 

58




Indian preference in employment. Indian preference in hiring applies to the Indian Health 

Service. 42 C.F.R. §136.41-.43. 56 Such preference also applies to tribally-operated programs 

through the requirement that, to the greatest extent feasible, preference for training and 

employment must be given to Indians in connection with administration of any contract or 

grant authorized by any federal law to Indian organizations or for the benefit of Indians. 25 

U.S.C. §450e(b). 

Only Tribes have rights under ISDEAA. Indian Tribes (and Tribal Organizations sanctioned by 

one/more Tribes) – and only those entities – can elect to directly operate an IHS-funded 

program through a contract or compact from the Indian Health Service issued pursuant to the 

Indian Self-Determination and Education Assistance Act (ISDEAA). 25 U.S.C. §450 et seq. The 

tribal operator receives the program funds the IHS would have used and additional funding for 

administrative costs. A tribal operator directly hires its staff and has the authority to re-design 

the program(s) it offers. 

Federal Tort Claims Act coverage. Pursuant to federal law, tribal health programs and their 

employees are covered by the Federal Tort Claims Act (FTCA). 25 U.S.C. §450f, note. For this 

reason, it is often unnecessary for Tribes to purchase liability insurance for the health services 

they operate with federal funding. 

Use of HHS personnel. To help staff their programs, Tribes and Tribal Organizations are 

authorized by law to utilize employees of HHS under Intergovernmental Personnel Act 

assignments and commissioned officers of HHS under Memoranda of Agreement. 25 U.S.C, 

§450i. 

Creation of specific health care providers. Federal law has created health care delivery 

providers found only in the Indian health care system. See Community Health Representative 

Program, 25 U.S.C. §1616; Community Health Aide Program (CHAP) for Alaska, 25 U.S.C. §1616l. 

The Alaska Medicaid Plan reimburses Indian health programs for covered services provided by 

CHAPs in Alaska. Through a 2010 amendment to the IHCIA, the Secretary is authorized to 

implement a CHAP program for Tribes in the lower 48 states. 

56 See also Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984) (upholding the Indian Health Service's Indian employment 

preference). 

59




IHS as payer of last resort. A longstanding IHS regulation makes IHS programs the payer of last 

resort for eligible Indian beneficiaries, notwithstanding any state or local law to the contrary. 

42 C.F.R. §136.61. Congress has made this payer of last resort status a statutory requirement 

for IHS, tribal, and urban Indian organization programs. 57 

IHS-specific Medicare and Medicaid reimbursement rates. On an annual basis, the IHS (in 

consultation with CMS) establishes the rates at which Medicare outpatient and Medicaid 

inpatient and outpatient services provided to eligible Indians shall be reimbursed to IHS 

facilities. See, e.g.,77 Fed. Reg. 33470 (June 6, 2012). This is an all-inclusive encounter rate 

which is unique to Indian health care. Tribal clinics may instead elect to bill for services as a 

Federally Qualified Health Center (FQHC). 

100 Percent Federal Medical Assistance Percentage. The cost of Medicaid covered services 

provided to AI/ANs in IHS and tribal facilities are reimbursed to the States at 100 percent FMAP 

in recognition that the responsibility for Indian health care is a federal obligation. Sec. 1905(b) 

of SSA; 42 U.S.C. §1396d(b). 

No U.S. right of recovery from Tribes. If an Indian Tribe (or a Tribal Organization sanctioned by 

one/more Tribes) has a self-insured health plan for its employees, the United States is 

prohibited by law from recovering from that plan the cost of services provided unless the 

sponsoring Tribe/Tribal Organization expressly authorizes such recovery. 25 U.S.C. §1621e(f). 

Indian Tribes are governments. Upon achieving federal recognition, an Indian Tribe is 

acknowledged to be and is treated as a government by the United States. The U.S. deals with 

Indian Tribes on a government-to-government basis that is recognized in Executive Orders and 

consultation policies adopted by federal agencies. 58 Indian Tribes determine their own 

governmental structure. They are not required to follow the U.S. model of separate legislative, 

executive, and judicial branches. 

57 25 U.S.C. §1623(b), as added by Sec. 2901(b) of the Affordable Care Act (P.L. 111-148) (Mar. 23, 2010). 

58 

See, e.g., Exec. Order No. 13175, "Consultation and Coordination with Indian Tribal Governments (Nov. 9, 2000) (issued 

by President Clinton and subsequently endorsed by Presidents George W. Bush and Barack Obama); White House 

Memorandum for Heads of Executive Departments and Agencies, Nov. 5, 2009 (President Obama endorsement); Dep't of 

Health and Human Services Tribal Consultation Policy (Dec. 14, 2010); Centers for Medicare and Medicaid Services Tribal 

Consultation Policy (Nov. 17, 2011). 

60




State law does not apply. By virtue of the Supremacy Clause, state laws generally do not apply 

to the IHS system. 59 The Supreme Court has recognized that Indian tribal governments are not 

subject to state laws, including tax laws, unless those laws are made expressly applicable by 

federal law. See, e.g., McClanahan v. Arizona State Tax Comm’n, 411 U.S. 1641 (1973). Indian 

tribal governments are not political subdivisions of states. Tribal facilities and their employees 

may not be required to have state licensure to perform their duties. 

Federal trust responsibility. The United States has a trust responsibility to Indian Tribes 

(described above). 

Tribal sovereign immunity. Indian tribal governments enjoy sovereign immunity except vis-à-vis 

the United States government, the superior sovereign. See, e.g., United States v. United States 

Fidelity & Guaranty Co., 309 U.S. 506 (1940). 

In sum, an Indian Tribe that has elected to directly operate its health care program can simultaneously 

serve in several capacities: as a sovereign government; as beneficiary of IHS-funded health care; as a 

direct provider of health care (including the right of recovery from third party payers); as administrator 

of a health program with responsibilities for advising its patients about eligibility for Medicare, 

Medicaid, and CHIP; and as a sponsor of a health insurance plan for its employees (and the payor 

under such a plan if it is a self-insured plan). CMS must take these multiple roles into account and 

fashion special policies to effectively implement Medicare, Medicaid, and CHIP in Indian communities 

in ways that assure full access by Indian beneficiaries and IHS/tribal providers. 

59 For example, Section 408 of the IHCIA provides that an entity operated by IHS, an Indian tribe, tribal organization or 

urban Indian organization that meets state requirements for licensure must be accepted as a provider but is not required to 

obtain a state license. 25 U.S.C. §1647a. 

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APPENDIX C: CMS ORGANIZATION CHART 

62




Appendix D: Common Terms & Acronyms 

All agencies are in CMS unless otherwise indicated. 

ACA Patient Protection and Affordable Care 

Act (P.L. 111-148) 

AI/AN American Indians and Alaska Natives 

ACL Administration for Community Living (in 

HHS) 

ARRA American Recovery and Reinvestment Act 

of 2009 (P.L. 111-5) 

CCIIO Center for Consumer Information and 

Insurance Oversight 

CHS Contract Health Services, (IHS program to 

purchase services) 

CHIP Child Health Insurance Program 

CHIPRA Children’s Health Insurance Program 

Reauthorization Act of 2009 (P.L. 111-3) 

CMCS Center for Medicaid and CHIP Service 

CMM Center for Medicare Management 

CMMI Center for Medicare and Medicaid 

Innovation 

CMS Centers for Medicare & Medicaid Services 

CMSO Center for Medicaid and State Operations 

DHHS Department of Health and Human 

Services 

FFE Federally-facilitated Exchange 

FMAP Federal Medical Assistance Percentage 

(for Medicaid) 

FQHC Federally Qualified Health Centers 

HHS Department of Health and Human 

Services 

63 

I/T/U Health care services operated by the IHS, 

Tribes and urban Indian clinics 

IHCIA Indian Health Care Improvement Act (P.L. 

94-437) 

IHS Indian Health Service (federal agency in 

DHHS) 

LTSS Long Term Services and Support 

MA Medicare Advantage (managed care plan) 

MAM Medicaid Administrative Match 

MOA Memorandum of Agreement 

NAC Native American Contact in CMS Regional 

Offices 

NIHB National Indian Health Board 

OGC Office of General Counsel 

Part A Medicare inpatient coverage 

Part B Medicare outpatient coverage 

Part C Medicare managed care plans, also called 

Medicare Advantage 

Part D Medicare prescription drug benefit 

TAG Tribal Affairs Group 

TTAG Tribal Technical Advisory Group 

Title XVIII Medicare, Social Security Act 

Title XIX Medicaid, Social Security Act 

Title XXI Children’s Health Insurance 

Program , Social Security Act




Acknowledgements 

This American Indian and Alaska Native Strategic Plan, 2013-2018 was developed by the CMS Tribal 

Technical Advisory Group (TTAG) with assistance from the Northwest Portland Area Indian Health Board 

(NPAIHB). Funding for this project was provided by CMS through an Interagency Agreement with the 

Indian Health Service and a subcontract from the National Indian Health Board (NIHB). 

This plan was developed over a period of six months, beginning in June 2012. The TTAG Strategic Plan 

Subcommittee met in-person and by conference call to develop new goals, objectives, and tasks. TTAG’s 

subcommittees for Tribal Consultation, Long Term Care, Data, and Outreach & Education provided 

essential input related to their visions for future activities and outcomes. TTAG approved the plan for 

nationwide tribal comment and review in September 2012. 

This is the third AI/AN Strategic Plan developed by TTAG. Each plan has built on the work of the 

preceding plan, although much of the background information in previous plans has been dropped from 

this version to make it shorter. The first plan, for the period 2005-2010, was developed under the TTAG 

Strategic Plan Chairmanship of Margaret Terrance, Nashville Area Representative to TTAG, and was 

staffed by Mim Dixon, consultant. The second plan, for the period from 2010- 2015, was developed 

under the TTAG Strategic Plan Subcommittee, chaired by the Honorable W. Ron Allen, Chair of the 

Jamestown S’Klallam Tribe, and Tribal Self-Governance Advisory Committee representative to the TTAG. 

The staff for the second plan included Craig Carter and Stephanie Craig Rushing from NPAIHB, as well as 

Kitty Marx and Caitlin Wesaw who were then at NIHB. 

TTAG would like to thank the many people in CMS who participated in interviews and provided their 

insights for the development of this plan. While we are keeping their names and comments 

confidential, we hope they will see the wisdom they shared reflected on these pages. Mim Dixon and 

Jim Roberts staffed this plan, with assistance from Lisa Griggs (NPAIHB), Tyra Baer (NIHB), and Liz 

Heintzman (NIHB). 

Strategic Plan Subcommittee 

W. Ron Allen, Tribal Chairman, Jamestown S’Klallam Tribe, Strategic Plan Subcommittee Chair 

Jennifer Cooper, JD, National Indian Health Board 

Jim Crouch, MPH, California Rural Indian Health Board 

Valerie Davidson, JD, Alaska Native Tribal Health Consortium 

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Carol Korenbrot , PhD, California Rural Indian Health Board 

Jim Lamb, Alaska Native Tribal Health Consortium 

Liz Malerba, United South and Eastern Tribes 

Elliott Milhollin, JD, Hobbs, Strauss Dean and Walker 

Myra Munson, JD, MSW, Sonosky, Chambers, Miller and Munson 

Raho Ortiz, Indian Health Service 

Judy Goforth Parker, PhD, Chickasaw Nation 

Jim Roberts, Northwest Portland Area Indian Health Board 

Jay Steiner, JD, National Council for Urban Indian Health 

Alec Thurdercloud, MD, Ho-Chunk Nation 

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mmpc - National Indian Health Board

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