NCUIH prepared the following memo for Urban Indian Organizations with respect to the No Surprises Act:

Background on the No Surprises Act

• The No Surprises Act was passed as part of the Consolidated Appropriations Act of 2021. The No Surprises Act went into effect January 1, 2022. The Act includes provisions that take effect in 2022 for medical providers.
• The bill focused on banning surprise billing and is focused on high-cost services and providers.
• Surprise billing happens when a patient with health insurance receives care from an out-of-network provider or an out-of-network facility, even unknowingly, and their plan does not cover the entire out-of-network cost. The provider or facility could then bill the patient for the difference between the billed charge and the amount their health plan covered. The No Surprises Act bans this practice.

How does the No Surprises Act affect UIOs?

• Patients enrolled in federal programs such as, Medicare, Medicaid, Indian Health Service (IHS), Veterans Affairs Health Care, or TRICARE, already had protections against surprise billing. As such, most of the provisions in the No Surprises Act do not apply to UIOs.  But on September 30, 2021, HHS released an Interim Final Rule (IFR) with an important provision that does impact UIOs – the Good Faith Estimate (GFE).

What is the Good Faith Estimate?

• The GFE is documentation that includes charge info for services and items provided by the provider.
• A GFE is provided to patients that are uninsured or self-pay, that make an appointment more than three days in advance, or specifically request a GFE.
• This documentation is provided when the patient makes their appointment, and has a requirement of listing a diagnostic code, essentially requiring administrative staff to diagnose patients who have yet to be seen.
• For services that are recurring a single GFE can be issued for up to 12 months.

How does the GFE apply to UIOs?

• The rule does not apply to people with coverage through programs such as Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE. These programs already prohibit balance billing.
• AI/AN patients are considered insured when they receive care at an Indian Health Service facility, tribal health programs (also known as tribal 638 programs or tribal health clinics), or urban Indian organizations.
• As such, UIOs do not need to provide a GFE for AI/AN patients. However, if a UIO provides care for non-AI/AN patients, those patients would be eligible for GFEs if they meet the other requirements (e.g., uninsured.)

Waivers and Exemptions

• There is no development of a waiver program in the legislative text of the Act.
• However, the National Association of Community Health Centers (NACHC) is advocating for HRSA FQHCs and “look-alikes” to be exempt from the Good-Faith Estimate (GFE) provision.
  • NACHC’s argument centers around the fact that the GFE would be redundant with the requirements (sliding scale fee) of section 330 of the Public Health Service Act (PHSA) and undermine its protections.
  • NACHC’s request is that Agencies use their discretion under the No Surprise Act in defining the terms “facility” and “provider” for purposes of the good faith estimate requirement in Section 112 and omit community health centers and clinics.

Does GFE apply to UIOs referring patients to other providers for services?

• The GFE only applies to the provider that is collecting the check. If a patient is referred out for additional services, then the UIO only has to provide a GFE for the services the UIO is being paid for, and the referred to provider will have to provide a GFE for their services provided. However, services where the UIO is dependent on them to provide care, like labs, will need to be included in a GFE.

Conclusion

• The No Surprises Act went into effect January 1, 2022.
• This includes phase one of the GFE implementation which requires a GFE for charge info for services and items provided.
• This requires that UIOs provide a GFE to non-AI/AN patients who are uninsured or self-pay and make their appointment more than three days in advance.
• On February 3, 2021, on an All Tribal and UIO leaders Call, Capt. John Rael said IHS continues to work with CMS on the No Surprises Act and will provide UIOs with additional assistance on the Act.
• NCUIH is advocating with a coalition of partners to have UIOs waived from the GFE provision.

For additional information, please contact Jeremy Grabiner, Policy Analyst, JGrabiner@NCUIH.org or email Policy@NCUIH.org.

On January 13, 2022, the Indian Health Service (IHS) announced publication of the final rule implementing the Buy Indian Act (“Final Rule”).  This rule supplements the Federal Acquisition Regulation (FAR) and the Department of Health and Human Services Acquisition Act (HHSAR). The rule will become effective March 14, 2022.  Once the rule is effective, IHS will update the Indian Health Manual, Part 5, Chapter 5, Section 6-1 Buy Indian Policy.

The Buy Indian Act provides the IHS with authority to set-aside procurement contracts for Indian-owned and controlled businesses.  The Buy Indian Act rule has been in development at the Indian Health Service (IHS) since 2016, in collaboration with the Health and Human Services (HHS) and the Assistant Secretary for Financial Resources (ASFR). Over the course of four (4) public consultation sessions, comments were received, reviewed, addressed, and incorporated into the final rule.

The Final Rule is intended to encourage procurement relationships with Indian labor and industry.  It formalizes the administrative procedure by which IHS carries out acquisition activities with the intent of ensuring uniformity for offers submitted by Indian labor and industry under solicitations set-aside under the Buy Indian Act and the Final Rule.

According to IHS Acting Deputy Director Elizabeth Fowler, this rule aims to improve business processes that support value-based purchasing and standardized management strategies in contracts. IHS hopes that the Rule advances the IHS mission and supports economic sustainability and development across Indian Country. Dr. Fowler also indicated that IHS intends to use the rule to set-aside for Indian Economic Enterprises a significant portion of the $1 billion in commercial contract dollars it currently obligates per year.

As identified by IHS, the final rule has capacity to:

• alleviate unnecessary regulatory burden on Indian Economic Enterprises
• expand application of the Buy Indian Act to all construction including the planning, design and construction of health care facilities, personnel quarters, and water supply and waste disposal facilities;
• better adhere to the language of the Buy Indian Act;
• strengthen oversight of the Buy Indian Act to reduce the potential for fraud and abuse;
• and clarify the preference for Indian Economic Enterprises;

IHS has committed to providing support during the implementation phase of incorporating the new strategies and is dedicated to improving compliance, training, and reporting in respect to the Buy Indian Act.

Indian-owned and controlled businesses which are interested in competing for IHS Buy Indian Act set-aside acquisitions will be required to fill out an IHS Indian Economic Enterprise self-certification form. The form will be attached to all IHS solicitations set-aside under the Buy Indian Act.  Completed and signed forms must be submitted with a quote/proposal in response to the specific IHS solicitation.  Potential offerors can also reach out to any IHS Contracting Officer to obtain a copy of the form.  Once IHS has updated the Indian Health Manual the form will also be made available on the IHS Division of Acquisition Policy webpage.

Potential offerors with additional questions, can contact Santiago Almaraz, IHS head of contracting activity at santiago.almaraz@ihs.gov or Ken Truesdale, acting director-division of acquisition policy, at kenneth.truesdale@ihs.gov.

For technical questions concerning this rule contact: Carl Mitchell, Director, Division of Regulatory Policy Coordination (DRPC), Office of Management Services (OMS), IHS, 301-443-6384, carl.mitchell@ihs.gov; or Santiago Almaraz, Acting Director, OMS, IHS 301-443-4872, santiago.almaraz@ihs.gov.

On January 27, the Centers for Medicare & Medicaid Services (CMS) announced that it will commit $49.4 million in cooperative agreements in an effort to fund organizations that can connect more eligible children, parents, and pregnant individuals to health care coverage through Medicaid and Children’s Health Insurance Program (CHIP). Eligible awardees include state and local governments, tribal organizations, federal health safety net organizations, and non-profits, as well as schools and other organizations. Each awardee may receive $500,000 up to an anticipated $1,500,000 over a three-year award period.  Awardees must use the funding to reduce the number of uninsured and advance Medicaid and CHIP enrollment and retention. Application proposals are due on March 28, 2022.  The anticipated award issuance date for these awards is July 1, 2022.

Background

The Connecting Kids to Coverage HEALTHY KIDS 2022 Outreach and Enrollment Cooperative Agreements provide funding opportunities to reduce the number of children who are eligible for, but not enrolled in, CHIP and to improve retention of eligible children who are enrolled.  According to CMS, the rate of uninsured children increased to 5.2 percent in 2019, meaning that around 4 million children are uninsured.  In addition, Medicaid and CHIP participation rates have declined, indicating that a greater proportion of eligible children are not accessing the health benefits that Medicaid and CHIP provide.  CMS estimates that among the 4 million uninsured children, 2.3 million children are eligible for Medicaid and CHIP and CMS further estimates that AI/AN children continue to experience the highest uninsured rate at 11.8 percent.

Funded organizations will provide enrollment and renewal assistance to children and their families, as well as pregnant people—a new optional target population in this year’s award announcement.  Applicants will be encouraged to consider a range of activities, including:

• Engaging schools and other programs serving young people;
• Bridging racial and demographic health coverage disparities by targeting communities with low coverage rates;
• Establishing and developing application assistance resources to provide high-quality, reliable enrollment and renewal services in local communities;
• Using social media to conduct virtual outreach and enrollment assistance; and
• Using parent mentors and community health workers to assist families with enrolling in Medicaid and CHIP, retaining coverage, and addressing social determinants of health.

How to Apply

Applicants must submit their application electronically through the grants.gov website.  The following forms must be completed with an electronic signature and enclosed as part of the application:

1. Project Abstract Summary
2. SF-424: Official Application for Federal Assistance
3. SF-LLL: Disclosure of Lobbying Activities
4. Project Site Location Form(s)

In addition, Applicant’s must provide the following information with their application

1. Application cover letter or cover page (optional)
2. Project Narrative
3. Data Collection and Reporting Plan
4. Work Plan and Timeline
5. Budget Narrative
6. Evaluation Plan
7. Staffing Plan
8. Business assessment of applicant organization

All applications must be submitted electronically and be received through www.grants.gov by 3:00 pm, Eastern Time, on March 28, 2022.  More information on this funding opportunity as well as application materials, can be found  here.