Calendar No. 469
109th CONGRESS
2d Session
S. 3524
To amend titles XVIII, XIX, and XXI of the Social Security Act
to improve health care provided to Indians under the Medicare, Medicaid,
and State Children's Health Insurance Programs, and for other purposes.
IN THE SENATE OF THE UNITED STATES
June 15, 2006
Mr. GRASSLEY, from the Committee on Finance, reported the following original
bill; which was read twice and placed on the calendar
A BILL
To amend titles XVIII, XIX, and XXI of the Social Security Act
to improve health care provided to Indians under the Medicare, Medicaid,
and State Children's Health Insurance Programs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Medicare, Medicaid, and SCHIP
Indian Health Care Improvement Act of 2006'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Expansion of payments under Medicare, Medicaid, and SCHIP for
all covered services furnished by Indian health programs.
Sec. 3. Increased outreach to Indians under Medicaid and SCHIP and improved
cooperation in the provision of items and services to Indians under Social
Security Act health benefit programs.
Sec. 4. Additional provisions to increase outreach to, and enrollment
of, Indians in SCHIP and Medicaid.
Sec. 5. Premiums and cost sharing protections and eligibility determinations
under Medicaid and SCHIP, and protection of certain Indian property from
Medicaid estate recovery.
Sec. 6. Nondiscrimination in qualifications for payment for services under
Federal health care programs.
Sec. 7. Consultation on Medicaid, SCHIP, and other health care programs
funded under the Social Security Act involving Indian Health Programs
and Urban Indian Organizations.
Sec. 8. Exclusion waiver authority for affected Indian Health Programs
and safe harbor transactions under the Social Security Act.
Sec. 9. Rules applicable under Medicaid and SCHIP to managed care entities
with respect to Indian enrollees and Indian health care providers and
Indian managed care entities.
Sec. 10. Annual report on Indians served by Social Security Act health
benefit programs.
SEC. 2. EXPANSION OF PAYMENTS UNDER MEDICARE, MEDICAID, AND SCHIP FOR
ALL COVERED SERVICES FURNISHED BY INDIAN HEALTH PROGRAMS.
(1) EXPANSION TO ALL COVERED SERVICES- Section 1911 of the Social Security
Act (42 U.S.C. 1396j) is amended--
(A) by amending the heading to read as follows:
`SEC. 1911. INDIAN HEALTH PROGRAMS.'; and
(B) by amending subsection (a) to read as follows:
`(a) Eligibility for Payment for Medical Assistance- The Indian Health Service
and an Indian Tribe, Tribal Organization, or an Urban Indian Organization
shall be eligible for payment for medical assistance provided under a State
plan or under waiver authority with respect to items and services furnished
by the Indian Health Service, Indian Tribe, Tribal Organization, or Urban
Indian Organization if the furnishing of such services meets all the conditions
and requirements which are applicable generally to the furnishing of items
and services under this title and under such plan or waiver authority.'.
(2) COMPLIANCE WITH CONDITIONS AND REQUIREMENTS- Subsection (b) of such
section is amended to read as follows:
`(b) Compliance With Conditions and Requirements- A facility of the Indian
Health Service or an Indian Tribe, Tribal Organization, or an Urban Indian
Organization which is eligible for payment under subsection (a) with respect
to the furnishing of items and services, but which does not meet all of
the conditions and requirements of this title and under a State plan or
waiver authority which are applicable generally to such facility, shall
make such improvements as are necessary to achieve or maintain compliance
with such conditions and requirements in accordance with a plan submitted
to and accepted by the Secretary for achieving or maintaining compliance
with such conditions and requirements, and shall be deemed to meet such
conditions and requirements (and to be eligible for payment under this title),
without regard to the extent of its actual compliance with such conditions
and requirements, during the first 12 months after the month in which such
plan is submitted.'.
(3) REVISION OF AUTHORITY TO ENTER INTO AGREEMENTS- Subsection (c) of
such section is amended to read as follows:
`(c) Authority To Enter Into Agreements- The Secretary may enter into an
agreement with a State for the purpose of reimbursing the State for medical
assistance provided by the Indian Health Service, an Indian Tribe, Tribal
Organization, or an Urban Indian Organization (as so defined), directly,
through referral, or under contracts or other arrangements between the Indian
Health Service, an Indian Tribe, Tribal Organization, or an Urban Indian
Organization and another health care provider to Indians who are eligible
for medical assistance under the State plan or under waiver authority.'.
(4) CROSS-REFERENCES TO SPECIAL FUND FOR IMPROVEMENT OF IHS FACILITIES;
DIRECT BILLING OPTION; DEFINITIONS- Such section is further amended by
striking subsection (d) and adding at the end the following new subsections:
`(d) Special Fund for Improvement of IHS Facilities- For provisions relating
to the authority of the Secretary to place payments to which a facility
of the Indian Health Service is eligible for payment under this title into
a special fund established under section 401(c)(1) of the Indian Health
Care Improvement Act, and the requirement to use amounts paid from such
fund for making improvements in accordance with subsection (b), see subparagraphs
(A) and (B) of section 401(c)(1) of such Act.
`(e) Direct Billing- For provisions relating to the authority of a Tribal
Health Program or an Urban Indian Organization to elect to directly bill
for, and receive payment for, health care items and services provided by
such Program or Organization for which payment is made under this title,
see section 401(d) of the Indian Health Care Improvement Act.
`(f) Definitions- In this section, the terms `Indian Health Program', `Indian
Tribe',`Tribal Health Program', `Tribal Organization', and `Urban Indian
Organization' have the meanings given those terms in section 4 of the Indian
Health Care Improvement Act.'.
(1) EXPANSION TO ALL COVERED SERVICES- Section 1880 of such Act (42 U.S.C.
1395qq) is amended--
(A) by amending the heading to read as follows:
`SEC. 1880. INDIAN HEALTH PROGRAMS.'; and
(B) by amending subsection (a) to read as follows:
`(a) Eligibility for Payments- Subject to subsection (e), the Indian Health
Service and an Indian Tribe, Tribal Organization, or an Urban Indian Organization
shall be eligible for payments under this title with respect to items and
services furnished by the Indian Health Service, Indian Tribe, Tribal Organization,
or Urban Indian Organization if the furnishing of such services meets all
the conditions and requirements which are applicable generally to the furnishing
of items and services under this title.'.
(2) COMPLIANCE WITH CONDITIONS AND REQUIREMENTS- Subsection (b) of such
section is amended to read as follows:
`(b) Compliance With Conditions and Requirements- Subject to subsection
(e), a facility of the Indian Health Service or an Indian Tribe, Tribal
Organization, or an Urban Indian Organization which is eligible for payment
under subsection (a) with respect to the furnishing of items and services,
but which does not meet all of the conditions and requirements of this title
which are applicable generally to such facility, shall make such improvements
as are necessary to achieve or maintain compliance with such conditions
and requirements in accordance with a plan submitted to and accepted by
the Secretary for achieving or maintaining compliance with such conditions
and requirements, and shall be deemed to meet such conditions and requirements
(and to be eligible for payment under this title), without regard to the
extent of its actual compliance with such conditions and requirements, during
the first 12 months after the month in which such plan is submitted.'.
(3) CROSS-REFERENCES TO SPECIAL FUND FOR IMPROVEMENT OF IHS FACILITIES;
DIRECT BILLING OPTION; DEFINITIONS-
(A) IN GENERAL- Such section is further amended by striking subsections
(c) and (d) and inserting the following new subsections:
`(c) Special Fund for Improvement of IHS Facilities- For provisions relating
to the authority of the Secretary to place payments to which a facility
of the Indian Health Service is eligible for payment under this title into
a special fund established under section 401(c)(1) of the Indian Health
Care Improvement Act, and the requirement to use amounts paid from such
fund for making improvements in accordance with subsection (b), see subparagraphs
(A) and (B) of section 401(c)(1) of such Act.
`(d) Direct Billing- For provisions relating to the authority of a Tribal
Health Program or an Urban Indian Organization to elect to directly bill
for, and receive payment for, health care items and services provided by
such Program or Organization for which payment is made under this title,
see section 401(d) of the Indian Health Care Improvement Act.'.
(B) CONFORMING AMENDMENT- Paragraph (3) of section 1880(e) of such Act
(42 U.S.C. 1395qq(e)) is amended by inserting `and section 401(c)(1)
of the Indian Health Care Improvement Act' after `Subsection (c)'.
(4) DEFINITIONS- Such section is further amended by amending subsection
(f) to read as follows:
`(f) Definitions- In this section, the terms `Indian Health Program', `Indian
Tribe', `Service Unit', `Tribal Health Program', `Tribal Organization',
and `Urban Indian Organization' have the meanings given those terms in section
4 of the Indian Health Care Improvement Act.'.
(c) Application to SCHIP- Section 2107(e)(1) of the Social Security Act
(42 U.S.C. 1397gg(e)(1)) is amended--
(1) by redesignating subparagraph (D) as subparagraph (E); and
(2) by inserting after subparagraph (C), the following new subparagraph:
`(D) Section 1911 (relating to Indian Health Programs, other than subsection
(d) of such section).'.
SEC. 3. INCREASED OUTREACH TO INDIANS UNDER MEDICAID AND SCHIP AND IMPROVED
COOPERATION IN THE PROVISION OF ITEMS AND SERVICES TO INDIANS UNDER SOCIAL
SECURITY ACT HEALTH BENEFIT PROGRAMS.
Section 1139 of the Social Security Act (42 U.S.C. 1320b-9) is amended to
read as follows:
`SEC. 1139. IMPROVED ACCESS TO, AND DELIVERY OF, HEALTH CARE FOR INDIANS
UNDER TITLES XVIII, XIX, AND XXI.
`(a) Agreements With States for Medicaid and SCHIP Outreach on or Near Reservations
To Increase the Enrollment of Indians in Those Programs-
`(1) IN GENERAL- In order to improve the access of Indians residing on
or near a reservation to obtain benefits under the Medicaid and State
children's health insurance programs established under titles XIX and
XXI, the Secretary shall encourage the State to take steps to provide
for enrollment on or near the reservation. Such steps may include outreach
efforts such as the outstationing of eligibility workers, entering into
agreements with the Indian Health Service, Indian Tribes, Tribal Organizations,
and Urban Indian Organizations to provide outreach, education regarding
eligibility and benefits, enrollment, and translation services when such
services are appropriate.
`(2) CONSTRUCTION- Nothing in subparagraph (A) shall be construed as affecting
arrangements entered into between States and the Indian Health Service,
Indian Tribes, Tribal Organizations, or Urban Indian Organizations for
such Service, Tribes, or Organizations to conduct administrative activities
under such titles.
`(b) Requirement To Facilitate Cooperation- The Secretary, acting through
the Centers for Medicare & Medicaid Services, shall take such steps
as are necessary to facilitate cooperation with, and agreements between,
States and the Indian Health Service, Indian Tribes, Tribal Organizations,
or Urban Indian Organizations with respect to the provision of health care
items and services to Indians under the programs established under title
XVIII, XIX, or XXI.
`(c) Definition of Indian Tribe; Indian Health Program; Tribal Organization;
Urban Indian Organization- In this section, the terms `Indian Tribe', `Indian
Health Program', `Tribal Organization', and `Urban Indian Organization'
have the meanings given those terms in section 4 of the Indian Health Care
Improvement Act.'.
SEC. 4. ADDITIONAL PROVISIONS TO INCREASE OUTREACH TO, AND ENROLLMENT
OF, INDIANS IN SCHIP AND MEDICAID.
(a) Nonapplication of 10 Percent Limit on Outreach and Certain Other Expenditures-
Section 2105(c)(2) of the Social Security Act (42 U.S.C. 1397ee(c)(2)) is
amended by adding at the end the following new subparagraph:
`(C) NONAPPLICATION TO EXPENDITURES FOR OUTREACH TO INCREASE THE ENROLLMENT
OF INDIAN CHILDREN UNDER THIS TITLE AND TITLE XIX- The limitation under
subparagraph (A) on expenditures for items described in subsection (a)(1)(D)
shall not apply in the case of expenditures for outreach activities
to families of Indian children likely to be eligible for child health
assistance under the plan or medical assistance under the State plan
under title XIX (or under a waiver of such plan), to inform such families
of the availability of, and to assist them in enrolling their children
in, such plans, including such activities conducted under grants, contracts,
or agreements entered into under section 1139(a).'.
(b) Assurance of Payments to Indian Health Care Providers for Child Health
Assistance- Section 2102(b)(3)(D) of such Act (42 U.S.C. 1397bb(b)(3)(D))
is amended by striking `(as defined in section 4(c) of the Indian Health
Care Improvement Act, 25 U.S.C. 1603(c))' and inserting `, including how
the State will ensure that payments are made to Indian Health Programs and
Urban Indian Organizations operating in the State for the provision of such
assistance'.
(c) Inclusion of Other Indian Financed Health Care Programs in Exemption
From Prohibition on Certain Payments- Section 2105(c)(6)(B) of such Act
(42 U.S.C. 1397ee(c)(6)(B)) is amended by striking `insurance program, other
than an insurance program operated or financed by the Indian Health Service'
and inserting `program, other than a health care program operated or financed
by the Indian Health Service or by an Indian Tribe, Tribal Organization,
or Urban Indian Organization'.
(d) Satisfaction of Medicaid Documentation Requirements-
(1) IN GENERAL- Section 1903(x)(3)(B) of the Social Security Act (42 U.S.C.
1396b(x)(3)(B)) is amended--
(A) by redesignating clause (v) as clause (vi); and
(B) by inserting after clause (iv), the following new clause:
`(v)(I) Except as provided in subclause (II), a document issued by a federally-recognized
Indian tribe evidencing membership or enrollment in, or affiliation with,
such tribe.
`(II) With respect to those federally-recognized Indian tribes located
within States having an international border whose membership includes
individuals who are not citizens of the United States, the Secretary shall,
after consulting with such tribes, issue regulations authorizing the presentation
of such other forms of documentation (including tribal documentation,
if appropriate) that the Secretary determines to be satisfactory documentary
evidence of citizenship or nationality for purposes of satisfying the
requirement of this subsection.'.
(2) TRANSITION RULE- During the period that begins on July 1, 2006, and
ends on the effective date of final regulations issued under subclause
(II) of section 1903(x)(3)(B)(v) of the Social Security Act (42 U.S.C.
1396b(x)(3)(B)(v)) (as added by paragraph (1)), an individual who is a
member of a federally-recognized Indian tribe described in subclause (II)
of that section who presents a document described in subclause (I) of
such section that is issued by such Indian tribe, shall be deemed to have
presented satisfactory evidence of citizenship or nationality for purposes
of satisfying the requirement of subsection (x) of section 1903 of such
Act.
(e) Definitions- Section 2110(c) of such Act (42 U.S.C. 1397jj(c)) is amended
by adding at the end the following new paragraph:
`(9) INDIAN; INDIAN HEALTH PROGRAM; INDIAN TRIBE; ETC- The terms `Indian',
`Indian Health Program', `Indian Tribe', `Tribal Organization', and `Urban
Indian Organization' have the meanings given those terms in section 4
of the Indian Health Care Improvement Act.'.
SEC. 5. PREMIUMS AND COST SHARING PROTECTIONS UNDER MEDICAID, ELIGIBILITY
DETERMINATIONS UNDER MEDICAID AND SCHIP, AND PROTECTION OF CERTAIN INDIAN
PROPERTY FROM MEDICAID ESTATE RECOVERY.
(a) Premiums and Cost Sharing Protection Under Medicaid-
(1) IN GENERAL- Section 1916 of the Social Security Act (42 U.S.C. 1396o)
is amended--
(A) in subsection (a), in the matter preceding paragraph (1), by striking
`and (i)' and inserting `, (i), and (j)'; and
(B) by adding at the end the following new subsection:
`(j) No Premiums or Cost Sharing for Indians Furnished Items or Services
Directly by Indian Health Programs or Through Referral Under the Contract
Health Service-
`(1) NO COST SHARING FOR ITEMS OR SERVICES FURNISHED TO INDIANS THROUGH
INDIAN HEALTH PROGRAMS-
`(A) IN GENERAL- No enrollment fee, premium, or similar charge, and
no deduction, copayment, cost sharing, or similar charge shall be imposed
against an Indian who 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 the contract health service
for which payment may be made under this title.
`(B) NO REDUCTION IN AMOUNT OF PAYMENT TO INDIAN HEALTH PROVIDERS- Payment
due under this title to the Indian Health Service, an Indian Tribe,
Tribal Organization, or Urban Indian Organization, or a health care
provider through referral under the contract health service for the
furnishing of an item or service to an Indian who is eligible for assistance
under such title, may not be reduced by the amount of any enrollment
fee, premium, or similar charge, or any deduction, copayment, cost sharing,
or similar charge that would be due from the Indian but for the operation
of subparagraph (A).
`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed
as restricting the application of any other limitations on the imposition
of premiums or cost sharing that may apply to an individual receiving
medical assistance under this title who is an Indian.
`(3) DEFINITIONS- In this subsection, the terms `contract health service',
`Indian', `Indian Tribe', `Tribal Organization', and `Urban Indian Organization'
have the meanings given those terms in section 4 of the Indian Health
Care Improvement Act.'.
(2) CONFORMING AMENDMENT- Section 1916A (a)(1) of such Act (42 U.S.C.
1396o-1(a)(1)) is amended by striking `section 1916(g)' and inserting
`subsections (g), (i), or (j) of section 1916'.
(b) Treatment of Certain Property for Medicaid and SCHIP Eligibility-
(1) MEDICAID- Section 1902(e) of the Social Security Act (42 U.S.C. 1396a)
is amended by adding at the end the following new paragraph:
`(13) Notwithstanding any other requirement of this title or any other
provision of Federal or State law, a State shall disregard the following
property for purposes of determining eligibility for medical assistance
under this title:
`(A) Property, including real property and improvements, located on
a reservation, including any federally recognized Indian Tribe's reservation,
pueblo, or colony, including former reservations in Oklahoma, Alaska
Native regions established by the Alaska Native Claims Settlement Act,
and Indian allotments on or near a reservation as designated and approved
by the Bureau of Indian Affairs of the Department of the Interior.
`(B) For any federally recognized Tribe not described in subparagraph
(A), property located within the most recent boundaries of a prior Federal
reservation.
`(C) Ownership interests in rents, leases, royalties, or usage rights
related to natural resources (including extraction of natural resources
or harvesting of timber, other plants and plant products, animals, fish,
and shellfish) resulting from the exercise of federally protected rights.
`(D) Ownership interests in or usage rights to items not covered by
subparagraphs (A) through (C) that have unique religious, spiritual,
traditional, or cultural significance or rights that support subsistence
or a traditional lifestyle according to applicable tribal law or custom.'.
(2) APPLICATION TO SCHIP- Section 2107(e)(1) of such Act (42 U.S.C. 1397gg(e)(1))
is amended--
(A) by redesignating subparagraphs (B) through (E), as subparagraphs
(C) through (F), respectively; and
(B) by inserting after subparagraph (A), the following new subparagraph:
`(B) Section 1902(e)(13) (relating to disregard of certain property
for purposes of making eligibility determinations).'.
(c) Continuation of Current Law Protections of Certain Indian Property From
Medicaid Estate Recovery- Section 1917(b)(3) of the Social Security Act
(42 U.S.C. 1396p(b)(3)) is amended--
(1) by inserting `(A)' after `(3)'; and
(2) by adding at the end the following new subparagraph:
`(B) The standards specified by the Secretary under subparagraph (A)
shall require that the procedures established by the State agency under
subparagraph (A) exempt income, resources, and property that are exempt
from the application of this subsection as of April 1, 2003, under manual
instructions issued to carry out this subsection (as in effect on such
date) because of the Federal responsibility for Indian Tribes and Alaska
Native Villages. Nothing in this subparagraph shall be construed as
preventing the Secretary from providing additional estate recovery exemptions
under this title for Indians.'.
SEC. 6. NONDISCRIMINATION IN QUALIFICATIONS FOR PAYMENT FOR SERVICES UNDER
FEDERAL HEALTH CARE PROGRAMS.
Section 1139 of the Social Security Act (42 U.S.C. 1320b-9), as amended
by section 3, is amended by redesignating subsection (c) as subsection (d),
and inserting after subsection (b) the following new subsection:
`(c) Nondiscrimination in Qualifications for Payment for Services Under
Federal Health Care Programs-
`(1) REQUIREMENT TO SATISFY GENERALLY APPLICABLE PARTICIPATION REQUIREMENTS-
`(A) IN GENERAL- A Federal health care program must accept an entity
that is operated by the Indian Health Service, an Indian Tribe, Tribal
Organization, or Urban Indian Organization as a provider eligible to
receive payment under the program for health care services furnished
to an Indian on the same basis as any other provider qualified to participate
as a provider of health care services under the program if the entity
meets generally applicable State or other requirements for participation
as a provider of health care services under the program.
`(B) SATISFACTION OF STATE OR LOCAL LICENSURE OR RECOGNITION REQUIREMENTS-
Any requirement for participation as a provider of health care services
under a Federal health care program that an entity be licensed or recognized
under the State or local law where the entity is located to furnish
health care services shall be deemed to have been met in the case of
an entity operated by the Indian Health Service, an Indian Tribe, Tribal
Organization, or Urban Indian Organization if the entity meets all the
applicable standards for such licensure or recognition, regardless of
whether the entity obtains a license or other documentation under such
State or local law. In accordance with section 221 of the Indian Health
Care Improvement Act, the absence of the licensure of a health care
professional employed by such an entity under the State or local law
where the entity is located shall not be taken into account for purposes
of determining whether the entity meets such standards, if the professional
is licensed in another State.
`(2) PROHIBITION ON FEDERAL PAYMENTS TO ENTITIES OR INDIVIDUALS EXCLUDED
FROM PARTICIPATION IN FEDERAL HEALTH CARE PROGRAMS OR WHOSE STATE LICENSES
ARE UNDER SUSPENSION OR HAVE BEEN REVOKED-
`(A) EXCLUDED ENTITIES- No entity operated by the Indian Health Service,
an Indian Tribe, Tribal Organization, or Urban Indian Organization that
has been excluded from participation in any Federal health care program
or for which a license is under suspension or has been revoked by the
State where the entity is located shall be eligible to receive payment
under any such program for health care services furnished to an Indian.
`(B) EXCLUDED INDIVIDUALS- No individual who has been excluded from
participation in any Federal health care program or whose State license
is under suspension or has been revoked shall be eligible to receive
payment under any such program for health care services furnished by
that individual, directly or through an entity that is otherwise eligible
to receive payment for health care services, to an Indian.
`(C) FEDERAL HEALTH CARE PROGRAM DEFINED- In this subsection, the term,
`Federal health care program' has the meaning given that term in section
1128B(f), except that, for purposes of this subsection, such term shall
include the health insurance program under chapter 89 of title 5, United
States Code.'.
SEC. 7. CONSULTATION ON MEDICAID, SCHIP, AND OTHER HEALTH CARE PROGRAMS
FUNDED UNDER THE SOCIAL SECURITY ACT INVOLVING INDIAN HEALTH PROGRAMS AND
URBAN INDIAN ORGANIZATIONS.
(a) In General- Section 1139 of the Social Security Act (42 U.S.C. 1320b-9),
as amended by sections 3 and 6, is amended by redesignating subsection (d)
as subsection (e), and inserting after subsection (c) the following new
subsection:
`(d) Consultation With Tribal Technical Advisory Group (TTAG)- The Secretary
shall maintain within the Centers for Medicaid & Medicare Services (CMS)
a Tribal Technical Advisory Group, established in accordance with requirements
of the charter dated September 30, 2003, and in such group shall include
a representative of the Urban Indian Organizations and the Service. The
representative of the Urban Indian Organization shall be deemed to be an
elected officer of a tribal government for purposes of applying section
204(b) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1534(b)).'.
(b) Solicitation of Advice Under Medicaid and SCHIP-
(1) MEDICAID STATE PLAN AMENDMENT- Section 1902(a) of the Social Security
Act (42 U.S.C. 1396a(a)) is amended--
(A) in paragraph (69), by striking `and' at the end;
(B) in paragraph (70)(B)(iv), by striking the period at the end and
inserting `; and'; and
(C) by inserting after paragraph (70)(B)(iv), the following new paragraph:
`(71) in the case of any State in which the Indian Health Service operates
or funds health care programs, or in which 1 or more Indian Health Programs
or Urban Indian Organizations (as such terms are defined in section 4
of the Indian Health Care Improvement Act) provide health care in the
State for which medical assistance is available under such title, provide
for a process under which the State seeks advice on a regular, ongoing
basis from designees of such Indian Health Programs and Urban Indian Organizations
on matters relating to the application of this title that are likely to
have a direct effect on such Indian Health Programs and Urban Indian Organizations
and that--
`(A) shall include solicitation of advice prior to submission of any
plan amendments, waiver requests, and proposals for demonstration projects
likely to have a direct effect on Indians, Indian Health Programs, or
Urban Indian Organizations; and
`(B) may include appointment of an advisory committee and of a designee
of such Indian Health Programs and Urban Indian Organizations to the
medical care advisory committee advising the State on its State plan
under this title.'.
(2) APPLICATION TO SCHIP- Section 2107(e)(1) of such Act (42 U.S.C. 1397gg(e)(1)),
as amended by section 5(b)(2), is amended--
(A) by redesignating subparagraphs (B) through (F) as subparagraphs
(C) through (G), respectively; and
(B) by inserting after subparagraph (A), the following new subparagraph:
`(B) Section 1902(a)(71) (relating to the option of certain States to
seek advice from designees of Indian Health Programs and Urban Indian
Organizations).'.
(c) Rule of Construction- Nothing in the amendments made by this section
shall be construed as superseding existing advisory committees, working
groups, guidance, or other advisory procedures established by the Secretary
of Health and Human Services or by any State with respect to the provision
of health care to Indians.
SEC. 8. EXCLUSION WAIVER AUTHORITY FOR AFFECTED INDIAN HEALTH PROGRAMS
AND SAFE HARBOR TRANSACTIONS UNDER THE SOCIAL SECURITY ACT.
(a) Exclusion Waiver Authority- Section 1128 of the Social Security Act
(42 U.S.C. 1320a-7) is amended by adding at the end the following new subsection:
`(k) Additional Exclusion Waiver Authority for Affected Indian Health Programs-
In addition to the authority granted the Secretary under subsections (c)(3)(B)
and (d)(3)(B) to waive an exclusion under subsection (a)(1), (a)(3), (a)(4),
or (b), the Secretary may, in the case of an Indian Health Program, waive
such an exclusion upon the request of the administrator of an affected Indian
Health Program (as defined in section 4 of the Indian Health Care Improvement
Act) who determines that the exclusion would impose a hardship on individuals
entitled to benefits under or enrolled in a Federal health care program.'.
(b) Certain Transactions Involving Indian Health Care Programs Deemed to
Be in Safe Harbors- Section 1128B(b) of the Social Security Act (42 U.S.C.
1320a-7b(b)) is amended by adding at the end the following new paragraph:
`(4) Subject to such conditions as the Secretary may promulgate from time
to time as necessary to prevent fraud and abuse, for purposes of paragraphs
(1) and (2) and section 1128A(a), the following transfers shall not be treated
as remuneration:
`(A) TRANSFERS BETWEEN INDIAN HEALTH PROGRAMS, INDIAN TRIBES, TRIBAL ORGANIZATIONS,
AND URBAN INDIAN ORGANIZATIONS- Transfers of anything of value between
or among an Indian Health Program, Indian Tribe, Tribal Organization,
or Urban Indian Organization, that are made for the purpose of providing
necessary health care items and services to any patient served by such
Program, Tribe, or Organization and that consist of--
`(i) services in connection with the collection, transport, analysis,
or interpretation of diagnostic specimens or test data;
`(ii) inventory or supplies;
`(iv) a waiver of all or part of premiums or cost sharing.
`(B) TRANSFERS BETWEEN INDIAN HEALTH PROGRAMS, INDIAN TRIBES, TRIBAL ORGANIZATIONS,
OR URBAN INDIAN ORGANIZATIONS AND PATIENTS- Transfers of anything of value
between an Indian Health Program, Indian Tribe, Tribal Organization, or
Urban Indian Organization and any patient served or eligible for service
from an Indian Health Program, Indian Tribe, Tribal Organization, or Urban
Indian Organization, including any patient served or eligible for service
pursuant to section 807 of the Indian Health Care Improvement Act, but
only if such transfers--
`(i) consist of expenditures related to providing transportation for
the patient for the provision of necessary health care items or services,
provided that the provision of such transportation is not advertised,
nor an incentive of which the value is disproportionately large in relationship
to the value of the health care item or service (with respect to the
value of the item or service itself or, for preventative items or services,
the future health care costs reasonably expected to be avoided);
`(ii) consist of expenditures related to providing housing to the patient
(including a pregnant patient) and immediate family members or an escort
necessary to assuring the timely provision of health care items and
services to the patient, provided that the provision of such housing
is not advertised nor an incentive of which the value is disproportionately
large in relationship to the value of the health care item or service
(with respect to the value of the item or service itself or, for preventative
items or services, the future health care costs reasonably expected
to be avoided); or
`(iii) are for the purpose of paying premiums or cost sharing on behalf
of such a patient, provided that the making of such payment is not subject
to conditions other than conditions agreed to under a contract for the
delivery of contract health services.
`(C) CONTRACT HEALTH SERVICES- A transfer of anything of value negotiated
as part of a contract entered into between an Indian Health Program, Indian
Tribe, Tribal Organization, Urban Indian Organization, or the Indian Health
Service and a contract care provider for the delivery of contract health
services authorized by the Indian Health Service, provided that--
`(i) such a transfer is not tied to volume or value of referrals or
other business generated by the parties; and
`(ii) any such transfer is limited to the fair market value of the health
care items or services provided or, in the case of a transfer of items
or services related to preventative care, the value of the future health
care costs reasonably expected to be avoided.
`(D) OTHER TRANSFERS- Any other transfer of anything of value involving
an Indian Health Program, Indian Tribe, Tribal Organization, or Urban
Indian Organization, or a patient served or eligible for service from
an Indian Health Program, Indian Tribe, Tribal Organization, or Urban
Indian Organization, that the Secretary, in consultation with the Attorney
General, determines is appropriate, taking into account the special circumstances
of such Indian Health Programs, Indian Tribes, Tribal Organizations, and
Urban Indian Organizations, and of patients served by such Programs, Tribes,
and Organizations.'.
SEC. 9. RULES APPLICABLE UNDER MEDICAID AND SCHIP TO MANAGED CARE ENTITIES
WITH RESPECT TO INDIAN ENROLLEES AND INDIAN HEALTH CARE PROVIDERS AND INDIAN
MANAGED CARE ENTITIES.
(a) In General- Section 1932 of the Social Security Act (42 U.S.C. 1396u-2)
is amended by adding at the end the following new subsection:
`(h) Special Rules With Respect to Indian Enrollees, Indian Health Care
Providers, and Indian Managed Care Entities-
`(1) ENROLLEE OPTION TO SELECT AN INDIAN HEALTH CARE PROVIDER AS PRIMARY
CARE PROVIDER- In the case of a non-Indian Medicaid managed care entity
that--
`(A) has an Indian enrolled with the entity; and
`(B) has an Indian health care provider that is participating as a primary
care provider within the network of the entity,
insofar as the Indian is otherwise eligible to receive services from such
Indian health care provider and the Indian health care provider has the
capacity to provide primary care services to such Indian, the contract
with the entity under section 1903(m) or under section 1905(t)(3) shall
require, as a condition of receiving payment under such contract, that
the Indian shall be allowed to choose such Indian health care provider
as the Indian's primary care provider under the entity.
`(2) ASSURANCE OF PAYMENT TO INDIAN HEALTH CARE PROVIDERS FOR PROVISION
OF COVERED SERVICES- Each contract with a managed care entity under section
1903(m) or under section 1905(t)(3) shall require any such entity that
has a significant percentage of Indian enrollees (as determined by the
Secretary), as a condition of receiving payment under such contract to
satisfy the following requirements:
`(A) DEMONSTRATION OF PARTICIPATING INDIAN HEALTH CARE PROVIDERS OR
APPLICATION OF ALTERNATIVE PAYMENT ARRANGEMENTS- Subject to subparagraph
(E), to--
`(i) demonstrate that the number of Indian health care providers that
are participating providers with respect to such entity are sufficient
to ensure timely access to covered Medicaid managed care services
for those enrollees who are eligible to receive services from such
providers; or
`(ii) agree to pay Indian health care providers who are not participating
providers with the entity for covered Medicaid managed care services
provided to those enrollees who are eligible to receive services from
such providers at a rate equal to the rate negotiated between such
entity and the provider involved or, if such a rate has not been negotiated,
at a rate that is not less than the level and amount of payment which
the entity would make for the services if the services were furnished
by a participating provider which is not an Indian health care provider.
`(B) PROMPT PAYMENT- To agree to make prompt payment (in accordance
with rules applicable to managed care entities) to Indian health care
providers that are participating providers with respect to such entity
or, in the case of an entity to which subparagraph (A)(ii) or (E) applies,
that the entity is required to pay in accordance with that subparagraph.
`(C) SATISFACTION OF CLAIM REQUIREMENT- To deem any requirement for
the submission of a claim or other documentation for services covered
under subparagraph (A) by the enrollee to be satisfied through the submission
of a claim or other documentation by an Indian health care provider
that is consistent with section 403(h) of the Indian Health Care Improvement
Act.
`(D) COMPLIANCE WITH GENERALLY APPLICABLE REQUIREMENTS-
`(i) IN GENERAL- Subject to clause (ii), as a condition of payment
under subparagraph (A), an Indian health care provider shall comply
with the generally applicable requirements of this title, the State
plan, and such entity with respect to covered Medicaid managed care
services provided by the Indian health care provider to the same extent
that non-Indian providers participating with the entity must comply
with such requirements.
`(ii) LIMITATIONS ON COMPLIANCE WITH MANAGED CARE ENTITY GENERALLY
APPLICABLE REQUIREMENTS- An Indian health care provider--
`(I) shall not be required to comply with a generally applicable
requirement of a managed care entity described in clause (i) as
a condition of payment under subparagraph (A) if such compliance
would conflict with any other statutory or regulatory requirements
applicable to the Indian health care provider; and
`(II) shall only need to comply with those generally applicable
requirements of a managed care entity described in clause (i) as
a condition of payment under subparagraph (A) that are necessary
for the entity's compliance with the State plan, such as those related
to care management, quality assurance, and utilization management.
`(E) APPLICATION OF SPECIAL PAYMENT REQUIREMENTS FOR FEDERALLY-QUALIFIED
HEALTH CENTERS AND ENCOUNTER RATE FOR SERVICES PROVIDED BY CERTAIN INDIAN
HEALTH CARE PROVIDERS-
`(i) FEDERALLY-QUALIFIED HEALTH CENTERS-
`(I) MANAGED CARE ENTITY PAYMENT REQUIREMENT- To agree to pay any
Indian health care provider that is a federally-qualified health
center but not a participating provider with respect to the entity,
for the provision of covered Medicaid managed care services by such
provider to an Indian enrollee of the entity at a rate equal to
the amount of payment that the entity would pay a federally-qualified
health center that is a participating provider with respect to the
entity but is not an Indian health care provider for such services.
`(II) CONTINUED APPLICATION OF STATE REQUIREMENT TO MAKE SUPPLEMENTAL
PAYMENT- Nothing in subclause (I) or subparagraph (A) or (B) shall
be construed as waiving the application of section 1902(bb)(5) regarding
the State plan requirement to make any supplemental payment due
under such section to a federally-qualified health center for services
furnished by such center to an enrollee of a managed care entity
(regardless of whether the federally-qualified health center is
or is not a participating provider with the entity).
`(ii) CONTINUED APPLICATION OF ENCOUNTER RATE FOR SERVICES PROVIDED
BY CERTAIN INDIAN HEALTH CARE PROVIDERS- If the amount paid by a managed
care entity to an Indian health care provider that is not a federally-qualified
health center and that has elected to receive payment under this title
as an Indian Health Service provider under the July 11, 1996, Memorandum
of Agreement between the Health Care Financing Administration (now
the Centers for Medicare & Medicaid Services) and the Indian Health
Service for services provided by such provider to an Indian enrollee
with the managed care entity is less than the encounter rate that
applies to the provision of such services under such memorandum, the
State plan shall provide for payment to the Indian health care provider
of the difference between the applicable encounter rate under such
memorandum and the amount paid by the managed care entity to the provider
for such services.
`(F) CONSTRUCTION- Nothing in this paragraph shall be construed as waiving
the application of section 1902(a)(30)(A) (relating to application of
standards to assure that payments are consistent with efficiency, economy,
and quality of care).
`(3) OFFERING OF MANAGED CARE THROUGH INDIAN MEDICAID MANAGED CARE ENTITIES-
If--
`(A) a State elects to provide services through Medicaid managed care
entities under its Medicaid managed care program; and
`(B) an Indian health care provider that is funded in whole or in part
by the Indian Health Service, or a consortium composed of 1 or more
Tribes, Tribal Organizations, or Urban Indian Organizations, and which
also may include the Indian Health Service, has established an Indian
Medicaid managed care entity in the State that meets generally applicable
standards required of such an entity under such Medicaid managed care
program,
the State shall offer to enter into an agreement with the entity to serve
as a Medicaid managed care entity with respect to eligible Indians served
by such entity under such program.
`(4) SPECIAL RULES FOR INDIAN MANAGED CARE ENTITIES- The following are
special rules regarding the application of a Medicaid managed care program
to Indian Medicaid managed care entities:
`(i) LIMITATION TO INDIANS- An Indian Medicaid managed care entity
may restrict enrollment under such program to Indians and to members
of specific Tribes in the same manner as Indian Health Programs may
restrict the delivery of services to such Indians and tribal members.
`(ii) NO LESS CHOICE OF PLANS- Under such program the State may not
limit the choice of an Indian among Medicaid managed care entities
only to Indian Medicaid managed care entities or to be more restrictive
than the choice of managed care entities offered to individuals who
are not Indians.
`(iii) DEFAULT ENROLLMENT-
`(I) IN GENERAL- If such program of a State requires the enrollment
of Indians in a Medicaid managed care entity in order to receive
benefits, the State, taking into consideration the criteria specified
in subsection (a)(4)(D)(ii)(I), shall provide for the enrollment
of Indians described in subclause (II) who are not otherwise enrolled
with such an entity in an Indian Medicaid managed care entity described
in such clause.
`(II) INDIAN DESCRIBED- An Indian described in this subclause, with
respect to an Indian Medicaid managed care entity, is an Indian
who, based upon the service area and capacity of the entity, is
eligible to be enrolled with the entity consistent with subparagraph
(A).
`(iv) EXCEPTION TO STATE LOCK-IN- A request by an Indian who is enrolled
under such program with a non-Indian Medicaid managed care entity
to change enrollment with that entity to enrollment with an Indian
Medicaid managed care entity shall be considered cause for granting
such request under procedures specified by the Secretary.
`(B) FLEXIBILITY IN APPLICATION OF SOLVENCY- In applying section 1903(m)(1)
to an Indian Medicaid managed care entity--
`(i) any reference to a `State' in subparagraph (A)(ii) of that section
shall be deemed to be a reference to the `Secretary'; and
`(ii) the entity shall be deemed to be a public entity described in
subparagraph (C)(ii) of that section.
`(C) EXCEPTIONS TO ADVANCE DIRECTIVES- The Secretary may modify or waive
the requirements of section 1902(w) (relating to provision of written
materials on advance directives) insofar as the Secretary finds that
the requirements otherwise imposed are not an appropriate or effective
way of communicating the information to Indians.
`(D) FLEXIBILITY IN INFORMATION AND MARKETING-
`(i) MATERIALS- The Secretary may modify requirements under subsection
(a)(5) to ensure that information described in that subsection is
provided to enrollees and potential enrollees of Indian Medicaid managed
care entities in a culturally appropriate and understandable manner
that clearly communicates to such enrollees and potential enrollees
their rights, protections, and benefits.
`(ii) DISTRIBUTION OF MARKETING MATERIALS- The provisions of subsection
(d)(2)(B) requiring the distribution of marketing materials to an
entire service area shall be deemed satisfied in the case of an Indian
Medicaid managed care entity that distributes appropriate materials
only to those Indians who are potentially eligible to enroll with
the entity in the service area.
`(5) MALPRACTICE INSURANCE- Insofar as, under a Medicaid managed care
program, a health care provider is required to have medical malpractice
insurance coverage as a condition of contracting as a provider with a
Medicaid managed care entity, an Indian health care provider that is--
`(A) a federally-qualified health center that is covered under the Federal
Tort Claims Act (28 U.S.C. 1346(b), 2671 et seq.);
`(B) providing health care services pursuant to a contract or compact
under the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) that are covered under the Federal Tort Claims Act
(28 U.S.C. 1346(b), 2671 et seq.); or
`(C) the Indian Health Service providing health care services that are
covered under the Federal Tort Claims Act (28 U.S.C. 1346(b), 2671 et
seq.);
are deemed to satisfy such requirement.
`(6) DEFINITIONS- For purposes of this subsection:
`(A) INDIAN HEALTH CARE PROVIDER- The term `Indian health care provider'
means an Indian Health Program or an Urban Indian Organization.
`(B) INDIAN; INDIAN HEALTH PROGRAM; SERVICE; TRIBE, TRIBAL ORGANIZATION;
URBAN INDIAN ORGANIZATION- The terms `Indian', `Indian Health Program',
`Service', `Tribe', `tribal organization', `Urban Indian Organization'
have the meanings given such terms in section 4 of the Indian Health
Care Improvement Act.
`(C) INDIAN MEDICAID MANAGED CARE ENTITY- The term `Indian Medicaid
managed care entity' means a managed care entity that is controlled
(within the meaning of the last sentence of section 1903(m)(1)(C)) by
the Indian Health Service, a Tribe, Tribal Organization, or Urban Indian
Organization, or a consortium, which may be composed of 1 or more Tribes,
Tribal Organizations, or Urban Indian Organizations, and which also
may include the Service.
`(D) NON-INDIAN MEDICAID MANAGED CARE ENTITY- The term `non-Indian Medicaid
managed care entity' means a managed care entity that is not an Indian
Medicaid managed care entity.
`(E) COVERED MEDICAID MANAGED CARE SERVICES- The term `covered Medicaid
managed care services' means, with respect to an individual enrolled
with a managed care entity, items and services that are within the scope
of items and services for which benefits are available with respect
to the individual under the contract between the entity and the State
involved.
`(F) MEDICAID MANAGED CARE PROGRAM- The term `Medicaid managed care
program' means a program under sections 1903(m) and 1932 and includes
a managed care program operating under a waiver under section 1915(b)
or 1115 or otherwise.'.
(b) Application to SCHIP- Section 2107(e)(1) of such Act (42 U.S.C. 1397gg(1)),
as amended by section 7(b)(2), is amended by adding at the end the following
new subparagraph:
`(H) Subsections (a)(2)(C) and (h) of section 1932.'.
SEC. 10. ANNUAL REPORT ON INDIANS SERVED BY SOCIAL SECURITY ACT HEALTH
BENEFIT PROGRAMS.
Section 1139 of the Social Security Act (42 U.S.C. 1320b-9), as amended
by the sections 3, 6, and 7, is amended by redesignating subsection (e)
as subsection (f), and inserting after subsection (d) the following new
subsection:
`(e) Annual Report on Indians Served by Health Benefit Programs Funded Under
This Act- Beginning January 1, 2007, and annually thereafter, the Secretary,
acting through the Administrator of the Centers for Medicare & Medicaid
Services and the Director of the Indian Health Service, shall submit a report
to Congress regarding the enrollment and health status of Indians receiving
items or services under health benefit programs funded under this Act during
the preceding year. Each such report shall include the following:
`(1) The total number of Indians enrolled in, or receiving items or services
under, such programs, disaggregated with respect to each such program.
`(2) The number of Indians described in paragraph (1) that also received
health benefits under programs funded by the Indian Health Service.
`(3) General information regarding the health status of the Indians described
in paragraph (1), disaggregated with respect to specific diseases or conditions
and presented in a manner that is consistent with protections for privacy
of individually identifiable health information under section 264(c) of
the Health Insurance Portability and Accountability Act of 1996.
`(4) A detailed statement of the status of facilities of the Indian Health
Service or an Indian Tribe, Tribal Organization, or an Urban Indian Organization
with respect to such facilities' compliance with the applicable conditions
and requirements of titles XVIII, XIX, and XXI, and, in the case of title
XIX or XXI, under a State plan under such title or under waiver authority,
and of the progress being made by such facilities (under plans submitted
under section 1880(b), 1911(b) or otherwise) toward the achievement and
maintenance of such compliance.
`(5) Such other information as the Secretary determines is appropriate.'.
SEC. 11. EFFECTIVE DATE.
The amendments made by this Act take effect on the effective date of the
amendments made by the Indian Health Care Improvement Act Amendments of
2006.
Calendar No. 469
109th CONGRESS
2d Session
S. 3524
A BILL
To amend titles XVIII, XIX, and XXI of the Social Security Act to improve
health care provided to Indians under the Medicare, Medicaid, and State
Children's Health Insurance Programs, and for other purposes.
June 15, 2006
Read twice and placed on the calendar
END
