February 7, 2013
ACA Policy Subcommittee Meeting Action Items
Action Items
Propose new language concerning payment of
claims for use in the addendum.
Identify relevant CMS staff members to
participate in future discussions of specific
policy issues.
Support the development of a list of Indianspecific policy questions and answers.
Timeline
Person
Responsible
Status
ASAP
Ongoing
ASAP
Subcommittee
Members
Ms. Marx
ASAP
TAG Staff
Ongoing
Notes
Ongoing
February 7, 2013
ACA Policy Subcommittee Meeting Minutes
Agenda Item
Documents Received
Roll Call
Discussion
Action
 None
Ms. Liz Heintzman, Legislative Program Associate, National Indian
Health Board, took the roll:
TTAG:
Vanessa Ardice
Mim Dixon
Doneg McDonough
Elliott Milhollin
Diddy Nelson
Phil Norrgard
James Roberts
John Stephens
Jay Stiener
Sherrie Varner
CMS:
Linda Brown
Cyndi Gillaspie
Lisa Marie Gomez
Beverly Lofton
Kitty Marx
Pete Nakahata
Rachel Ryan
IHS:
Raho Ortiz
ACA Policy Subcommittee Meeting – February 7, 2013 – Page 1
NIHB:
Liz Heintzman
Other:
Priscilla Caverly, New Mexico Human Services Department
Discussion
Mr. Jim Roberts, Policy Analyst, Northwest Portland Area Indian
Health Board, welcomed the call participants and indicated that
the purpose of the call was to receive an update on the tribal
addendum for Qualified Health Plans (QHPs) from the Centers for
Medicare & Medicaid Services (CMS).
QHP Indian Addendum
Mr. Pete Nakahata, Office of Exchanges, Center for Consumer
Information and Insurance Oversight (CCIIO), CMS, indicated that
CMS appreciates all of the comments it received on the
addendum. CCIIO recently met with the issuer trade association
to discuss the addendum. The issuers provided comments to CMS
after the meeting and the Tribal Technical Advisory Group (TTAG)
responded to the comments. Mr. Nakahata anticipated that the
addendum would be finalized by the end of the month. Once
CCIIO finishes its work on the addendum, the document will have
to go through the departmental clearance process.
Mr. Nakahata stated that the meeting with the trade association
raised several questions that he hoped to address with the
Subcommittee.
IHCIA Section 805
Issuers indicated that the addendum would pose operational
challenges, especially with regard to quality assurance and
utilization review procedures. Of particular concern were issues
related to Section 805 of the Indian Health Care Improvement Act
(IHCIA). Mr. Roberts noted that there are provisions in Section
805 that could preclude the Indian Health Service (IHS) and tribes,
as an extension of the IHS, from providing or sharing certain types
of information.
Mr. Nakahata asked whether these issues would be specific to
IHS or whether they would affect tribes that run their own
programs. Mr. Elliott Milholllin, Hobbs, Strauss, Dean & Walker,
pointed out that the requirement concerning the confidentiality
of medical quality assurance records is a new one. Section 805
provides specific protections, similar to those in the Health
Insurance Portability and Accountability Act (HIPAA), concerning
the disclosure of information contained in these records. The
concern is that the issuers’ standard network provider contracts
could include provisions that run counter to the IHCIA provisions.
One way in which the contracts and the law could conflict is in
cases where the medical quality assurance records or
performance standards include medical records. The addendum
seeks to prevent provider contracts putting IHS, tribal, and urban
(I/T/U) program providers in conflict with federal law.
Mr. Roberts added that tribes might have difficulty extracting
information required by plans from their practice management
systems. IHS has data sharing agreements with tribes and
ACA Policy Subcommittee Meeting – February 7, 2013 – Page 2
epidemiology centers concerning aspects of the sharing process.
Mr. Phil Norrgard, Director of Human Services, Fond Du Lac Band
of Lake Superior Chippewa, identified two major concerns
concerning data sharing. The Indian experience with pre-paid
medical assistance plans in the 1990s showed tribes that they
must be concerned about the interpretation of contract laws and
regulations. Tribal attorneys were unwilling to allow tribes to sign
managed care contracts with nondiscrimination clauses because
they required providers to serve everyone eventhough federal
law prohibits IHS and tribal providers from doing so. Similar issues
came up with the malpractice clauses in the contracts. It took a
long time to resolve these issues with the insurers. Now
whenever there is a potential conflict with federal law, Indian
providers become very concerned. When these conflicts arise,
Indian bargaining power with plans decreases. Mr. Norrgard also
identified a lack of specificity concerning the quality measures as
another cause for concern.
Mr. Norrgard reiterated the challenges of extracting data from
existing data systems without the technical capacity to do so. He
was concerned that the inability to extract the necessary data
could affect the providers’ ability to be paid.
Dr. Mim Dixon, TTAG Technical Advisor, Mim Dixon & Associates,
pointed out that the populations served by Indian providers are
very small. This could result in the identification of a single person
if that person is the only one in a particular area with the
condition covered by the quality measure. The Census Bureau
uses a three-year running average for Indians for the American
Community Survey because of the small size of the population.
Protecting communities as a whole was another issue raised by
Dr. Dixon. Many years ago, researchers studying mental health
and substance abuse issues in Barrow, Alaska, announced that
they had identified the community with highest rate of
alcoholism of any group ever studied on the same day that the
community began issuing bonds to build new facilities in the
community. As a result of the announcement, the community
could not sell its bonds. There is a concern that detrimental
information could be published with out coordinating with the
community in question.
Mr. Raho Ortiz, Director, Division of Regulatory Affairs, IHS,
stated that his agency has the same concerns about Section 805.
Specific provisions outline the circumstances under which medical
quality assurance records or testimony can be given. He stressed
that Section 805 applies to I/T/Us.
With regard to confidentiality, Mr. Nakahata stated that there
are standard quality measures (such as the Healthcare
Effectiveness Data and Information Set measures) used
throughout the industry. He believed that these standard
measures protect individual identities. Without the data from
quality assurance measures, CMS cannot hold issuers and
providers accountable for performance.
ACA Policy Subcommittee Meeting – February 7, 2013 – Page 3
Mr. Nakahata was unclear on how the IHCIA provisions would
affect situations in which medical records are needed to
determine medical necessity or determine the need for a referral
to another provider. Dr. Dixon thought that it was standard
practice for tribes to share medical records for these purposes.
Mr. Ortiz stated that Section 805 deals specifically with medical
quality assurance records and testimony. IHS medical records are
controlled by HIPAA and the Privacy Act. IHS publishes its records
notice, which identifies the records it provides to providers, fiscal
intermediaries, or those it bills, in the Federal Register.
Mr. Milhollin stated that Section 805 includes an exemption for
sharing records for monitoring purposes if the identity of the
patient is deleted. He did not think Indian records would be
precluded from being used as part of an issuer’s review of quality
of care.
Mr. Roberts indicated that the overarching concern is that
Section 805 could be interpreted too broadly and used as an
excuse to avoid providing information to issuers. Most programs
are willing to provide information to tribes. He felt that tribes
could work cooperatively with plans on this issue. Plans are
anticipating trouble in this area when there should not be any.
Claims Format
Issuers did not think that claims format is an issue that needs to
be addressed in the addendum. Mr. Nakahata asked the
Subcommittee members why they thought it could be a barrier.
Dr. Dixon noted that most of the I/T/U facilities that would be
interested in becoming network providers would not have a
problem with the claims format. The bigger issue is that QHPs
need to be educated about the Indian provisions in federal law
and are unwilling to accept certain provisions within it. The
addendum is a means of reminding issuers about the applicable
provisions in federal law and of preserving the rights of tribes
under federal law.
Payment of Claims
With regard to payment of claims, Mr. Nakahata reported that
issuers have concerns about the right of recovery and the
contracted rate, specifically with regard to comparability of rates.
Issuers do not want to discuss the right of recovery, especially
since there is ongoing litigation concerning the provisions in
Section 206. Given that the right of recovery is already set in
federal law, he asked why the Section 206 citation needs to be
included in the addendum. Mr. Doneg McDonough, Technical
Advisor, Tribal Self Governance Advisory Committee, stated that
the purpose of the addendum is not to add anything beyond the
requirements of federal law; instead the purpose is to make the
legal requirements as clear as possible.
Dr. Dixon explained that tribes wanted the federal government to
require the use of the addendum by issuers and to require issuers
to offer the addendum to I/T/Us as part of network adequacy.
CMS did not want to take this approach as it would tie the hands
of the issuers, especially since Section 206 would cause issuers to
ACA Policy Subcommittee Meeting – February 7, 2013 – Page 4
negotiate with I/T/Us. As a result, Section 206 was added to the
addendum to remind issuers that they need to negotiate with
I/T/Us in lieu of the federal government taking a more active role
in ensuring that contracts are offered to I/T/Us. The Section 206
reference in the addendum is a means of educating issuers about
federal law. Mr. Nakahata agreed that there is great variability in
issuers’ understanding of Section 206.
Dr. Dixon though that it is very important that issuers understand
that referrals through the Contract Health Services program must
be paid.
Mr. Nakahata suggested that the section on Section 206 be
included in the companion document instead of the addendum as
it is not directly related to the contract between the issuer and
the provider.
Mr. Milhollin asked whether CCIIO is proposing to take out the
reference to Section 206 in the payment of claims section or
whether it is proposing to take out the whole payment of claims
section. Mr. Nakahata indicated that only the reference would be
removed.
Mr. Milhollin pointed out that removing the Section 206
reference would, essentially, create new contract language that
sets out a right of payment that could be inconsistent with the
Section 206 requirements. If the payment of claims section does
not track Section 206, it would be different than federal law.
Mr. Nakahata asked whether Section 206 overrides any contract
between an issuer and a provider unless the contract specifically
states otherwise. Mr. Milhollin indicated that a tribe could agree
to waive its rights under Section 206. He believed that the larger
issue is that the addendum is federal guidance, specifically with
regard to the right of recovery being different from what is
required by federal law. Any discussion of payment of claims
should mirror the language in Section 206.
Mr. Norrgard, speaking from the perspective of a tribal health
director, stated that the management of the anticipated contracts
will be a staggering task. Tribes will be encouraged to take
payments that are less than those allowed under Section 206
because they are such small providers in the field and are unable
to substantiate the rates they want in a way that will encourage
issuers to offer the rates provided by Section 206. An overall
clause in the addendum could prevent this from occurring.
Section 206 helps tribes without the resources to negotiate
effectively secure more advantageous rates.
Mr. Roberts indicated that issuers had a very strong reaction to
this part of the addendum. They had the perception that they do
not have issues related to contracting with tribes; tribes, on the
other hand, see contracting with issuers as a significant issue.
Many of the contracting issues relate to payment of claims.
Removing this section would inhibit the ability of tribes to
contract with issuers.
ACA Policy Subcommittee Meeting – February 7, 2013 – Page 5
Mr. McDonough stated that Section 206 is still relevant even if an
issuer and a provider have an agreement that includes specific
rates because Section 206 provides a background against which
the rates were negotiated. Keeping the Section 206 language
helps to educate plans and provides an incentive for them to
negotiate with tribal providers.
With regard to the comparability of rates, Mr. Nakahata stated
that it would be acknowledged in the addendum.
Mr. Roberts noted that issuers were concerned that anyone
could become an Indian health provider, which would increase
the magnitude of the challenges they face with regard to
contracting. In reality, the number of Indian health providers is
limited. He believed that educating issuers about the number of
Indian providers and the fact that they must be established by
tribal governments would help the current situation.
Mr. Nakahata thought that the issuers’ concerns related more to
paying Indian providers a rate that might not be comparable. Mr.
McDonough indicated that the language included in CMS’ January
3 guidance document concerning payment rates under the safe
harbor plan (page 23) was standard language. Mr. Norrgard
stated that rates for similar services provided by similar providers
would be a comparable rate of reimbursement. Mr. Milhollin
noted that the purpose of Section 206 was to prevent issuers
from offering tribal providers super-discounted rates that were
not comparable to local services.
Mr. Nakahata stated that the purpose of the addendum is not
the adjudication of Section 206; it is the establishment of rates
through negotiated contracts. He believed that the section in the
addendum should focus on generally applicable payment rates.
Mr. Milhollin stressed that the rates must be negotiated between
issuers and providers, not simply offered by plans.
Dr. Dixon observed that some of these issues are being worked
out in the courts. She did not think that a judgment call should be
made before the courts have made their decisions. She was
concerned that it would take much tribal consultation to work
through the issues related to rates and recommended that the
addendum reference Section 206 and provide no additional
guidance concerning rates. She also recommended that CMS use
the language originally provided by the tribes as it was developed
through tribal consultation.
The Subcommittee members and Mr. Nakahata agreed to use the
simplest possible language for this section. Mr. Roberts stressed
the importance of including a reference to Section 206, although
he was willing to compromise on the language if it would
encourage plans to contract with tribes. Mr. Nakahata agreed
that the goal is to encourage plans to negotiate with tribes.
Modifying the language might show that issuers’ concerns were
taken into account.
ACA Policy Subcommittee Meeting – February 7, 2013 – Page 6
Mr. Roberts indicated that he would work internally with the
Subcommittee to develop a response to the payment of claims
section and recommend appropriate language for inclusion in the
addendum.
The Subcommittee members
will propose new language
concerning payment of
claims for use in the
addendum.
State Partnership Guidance
Mr. Milhollin asked CCIIO to provide additional information on
the safe harbor provisions in Appendix A of the recently issued
state partnership guidance. Mr. Nakahata explained that CCIIO
wants to incentivize issuers to use the addendum and to contract
with Indian providers. The safe harbor provision is one way to do
this. Additional guidance on this issue will be forthcoming.
Next Steps
Mr. Roberts stated that the Subcommittee is using a matrix to
track issues, concerns, and recommendation of interest to its
members. He asked Ms. Marx to use the matrix to obtain
feedback within CMS and invite individuals to participate in
discussions with the Subcommittee concerning the various topics.
Ms. Marx recommended that the matrix include a concise
summary of each issue.
Ms. Marx will identify
relevant CMS staff members
to participate in future
discussions of specific policy
issues.
Other Business
Dr. Dixon noted that the Subcommittee has been collecting
questions asked during the various training sessions that are
being held across the country. She asked if CMS could use these
questions to develop a frequently asked questions document for
Indian health professionals. Mr. Roberts noted that some of the
questions have already been answered, but individuals must
search for the answer. It would be helpful to have a single
resource for Indian-specific questions. Ms. Marx believed that
such a list would be helpful and expressed interest in the types of
questions that are being asked.
TAG staff will support the
development of a list of
Indian-specific policy
questions and answers.
Ms. Marx announced that Ms. Linda Brown has joined TAG and
will serve as the Deputy Director. She will be the point of contact
for issues related to the federally-facilitated exchange.
Schedule Next Call
The Subcommittee did not schedule the next conference call.
Adjourn
With no other business to address, the Subcommittee adjourned.
ACA Policy Subcommittee Meeting – February 7, 2013 – Page 7