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Why Tribes Should Opt Into the Patient Protection and Affordable Care Act

Harold Monteau
8/27/12

Let’s dispel a myth circulating in Indian country: Indians and Indian tribes are not prevented from taking advantage of the benefits of the Patient Protection and Affordable Care Act (PPACA). In fact, the PPACA has several incentives that Tribes and Indians may want to take advantage of in order to improve health care access on the reservation and improve access to what we commonly call “Contract Health Care” that is supposed to cover specialists, surgery, special procedures and hospitalization but has been historically underfunded by Congress. Long-term health care for the incapacitated and elderly has also been a long time struggle in Indian Country.

This historical underfunding of Indian Health Service (IHS) Contract Care has resulted in de facto triaging of Indian patients instead of proper care based on patient needs and Physician decisions as to best care. According to Health Care Professionals in IHS and Tribal Health entities, this triage system frequently results in patients having to wait for treatment until they move up in the triage system meaning they wait until they are critically ill or even untreatable. The result can be irreversible harm and even death.

Yes, it is great that the Indian Health Care Improvement Act (IHCIA) attained permanent reauthorization under the PPACA, but how do tribes couple that with the benefits available through insurance programs and Medicare and Medicaid coverage under the PPACA to make sure every tribal member, non-member Indian and reservation resident has coverage which the Tribe or IHS would be able to bill as a 3rd party payer? Why would tribes not want to assure that each and every tribal member is either covered by insurance or enhanced Medicare benefits under the PPACA? I can think of no economic reason and certainly can’t think of any health reason why Tribes would not want to make sure every tribal member is covered for every potential inpatient and contract care expense that they would encounter in their lifetime.

Indian Health Care professionals will tell you that Medicare is woefully inadequate to cover the real cost of specialists and hospitalization and that the present system results in negotiation of pricing that drives most competent professionals away from the system. This results in a lack of choice for patients and hints that providers who may have less expertise or competency may have to be the ultimate choice for Indian patients. Again, this is de facto triaging in which Indian patients are not treated with the best available care but with the care that can be afforded under the restrictive pricing system of Medicare. The present system also attracts providers that are willing to defraud the system with fraudulent billings for procedures that never were provided or provided inadequately. Legitimate providers are under pressure to either not take Medicare patients because the provider entity will lose money or under pressure to “fudge” Medicare billings. It is a system ripe for fraud and abuse. The PPACA, properly implemented, can address these inadequacies.

Dr. Charles Grimm, Senior Director for Cherokee Health Services and former Indian Health Director, points out that “the first of three provisions under Title I will protect Indians from cost-sharing requirements at or below 300 percent of the Federal Poverty Level, which DHS guidelines define as an annual income of $61,950 for a family of four. The second provision protects Indians from cost-sharing for services delivered through an IHS program; the third will allow individual Indians to enroll in insurance exchange programs on a monthly basis”. The ACA also gives IHS programs permanent authority to receive disbursement of some Part B services. “Also, the value of drugs provided by IHS programs will now count toward true out-of-pocket expenses, effectively removes the ‘doughnut hole’ for patients seen at IHS or tribal facilities.”

The provisions pointed out by Dr. Grimm, while stated in language that addresses the ability of individual Indians to participate in PPACA benefits and exempts them from any penalties, provide ample opportunity and incentives for Tribes to make sure that every individual within the reservation has coverage for any health care costs not covered by current resources. While Tribes will not be required to provide health care coverage under the Act, and individual Indians are not required to obtain coverage and won’t be penalized for not doing so, what possible reasons can militate against Tribes making sure everyone is covered? None, that I can think of.

Harold Monteau is a Chippewa Cree Lawyer and was a Visiting Professor at the Southwest Indian Law Clinic at the University of New Mexico. He supervised student authors of parts of Mr. Romero’s brief.

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