Patient Protection and Affordable Care Act- Updated Payment Parameters and Improving Health Insurance Markets for 2022 & Beyond

Final Rule: Patient Protection and Affordable Care Act; Updating Payment Parameters, Section 1332 Waiver Implementing Regulations, and Improving Health Insurance Markets for 2022 and Beyond.

 

On September 27, the Department of the Treasury, collectively with HHS (the Departments), issued a final rule revising the 2022 user fee rates for issuers offering qualified health plans (QHPs) through federally-facilitated Exchanges and State-based Exchanges. This rule finalizes policies designed to promote greater access to comprehensive health insurance coverage, consistent with applicable law and with the administration’s policy priorities detained in recent Presidential executive orders (EO 14009 and EO 13985).

 

NCUIH submitted comments regarding the proposed regulations, the equity goals proposed by the Administration, and how these goals should permeate each policy consideration by HHS and other agencies. These comments included how CMS should provide specific guidance and examples of how agencies and state officials can assess and address systemic barriers within their healthcare systems. Additionally, NCUIH commented on section 1332 waiver regulations and was pleased to that the new waiver regulations aim to explicitly analyzes and prioritize health equity by encouraging states to evaluate their proposed section 1332 waivers in line with E.O. 13985. Urban Indian organizations are severely impacted by social determinants of health and experience significant health disparities compared to other racial groups.[1] Because of these disparities, NCIUH hoped to see explicit analysis of how proposed state waivers will improve the healthcare access of AI/AN people. In response to NCUIH’s comments, the Departments responded that, while the comment was outside the scope of the rule, HHS is actively seeking ways to engage with stakeholders to advance health equity- and address the social determinants of health that disparately impact communities of color.

 

This rule also finalizes modifications to Section 1332 Waivers for State Innovation of the ACA. Through section 1332 waivers, the Departments aim to assist states with developing health insurance markets that expand coverage, lower costs, and make high-quality health care accessible for every American. The Departments also encourage states to develop their own waiver proposals that reduce barriers for individuals to access benefits. For example, states may propose waiver programs that increase plan options for comprehensive coverage, reduce premiums, improve affordability, and address social determinants of health.

 

By rescinding the policies and interpretations outlined in the  ) and repealing the previous codification of its guardrail interpretations in part 1 of the 2022 Payment Notice final rule; the Departments believe that these new policies and interpretations will align with the Administration’s goals to strengthen the ACA. Thusly, increasing enrollment opportunity in comprehensive, affordable health coverage among the remaining underinsured and uninsured. Moreover, these policies will further advance this Administration’s goal of increasing access to coverage by empowering states to develop innovated health coverage options for their residents through section 1332 waivers that best fit the states’ individual Notably, section 1332 provides the Secretary of HHS and the Secretary of the Treasury the discretion to approve or deny waivers when appropriate even if an application meets the four statutory guardrails.

 

The Departments received 262 comments on the section 1332 waiver proposals from a mix of stakeholders, including general advocacy organizations, disease advocacy organizations, states, issuers, providers, individuals, and other entitles. The overwhelming majority of stakeholders supported the section 1332 waiver proposals and encouraged the Departments to finalize the policies as proposed.

 

In order to encourage states to develop innovative waivers, the Departments are finalizing the policies, interpretations and regulatory amendments as proposed.  This final rule is effective on November 26, 2021.

 

[1] Monique Adakai et al., Health Disparities Among American Indians/Alaska Natives – Arizona, 2017, 67 Morbidity and Mortality Weekly Report 1314 (2018).

NCUIH Endorsed Indigenous Peoples’ Day Act Introduced in House and Senate

On September 30th, a group of Members of Congress introduced bipartisan, bicameral legislation to replace the term Columbus Day with Indigenous Peoples’ Day across all federal law and regulations. This legislation would also establish Indigenous Peoples’ Day as a public holiday. The NCUIH endorsed bill would allow the federal government to follow in the footsteps of at least 13 states and over 100 cities across the nation.

The Indigenous Peoples’ Day Act (H.R. 5473) was introduced by Representatives Torres, DelBene, Bonamici, and Davids within the House and currently has 64 total co-sponsors. The Senate partner bill (S. 2919) was introduced by Senators Lujan and Heinrich and currently has 7 total co-sponsors.

Please contact your Members of Congress and ask them to co-sponsor the Indigenous Peoples’ Day Act.

SENATE RELEASES FY22 FUNDING BILLS WITH HISTORIC INCREASE FOR URBAN INDIAN HEALTH, INDIAN HEALTH SERVICE, ADVANCE APPROPRIATIONS, MMIW AND UIO FACILITY FIX

The Senate bill includes a $30 million increase above the FY21 enacted level for urban Indian health.

On October 11, 2021, the Senate Appropriations Committee released its fiscal year (FY) 2022 Interior, Environment, and Related Agencies bill, with $92.7 million for urban Indian health. The bill would authorize $7.61 billion for the Indian Health Service (IHS) for FY22, an increase of $1.38 billion above the FY21 enacted level and $593 million below the President’s request. Other key provisions include an additional $6.58 billion in advance appropriations to IHS for FY23 and a facilities fix to allow Urban Indian Organizations (UIOs) to use existing IHS funding for facilities improvement and renovations.

“After decades of being ignored and forgotten, we applaud the Senate Appropriations Committee for the robust legislation proposed to improve outcomes for Indian Country. We are especially encouraged to see the commitment to ensure equitable consideration for all Native communities. We are grateful for all Members of Congress who supported the request for full funding for Indian health, including urban Indian health, especially Senators Schatz, Feinstein, Murkowski, Tester, Moran, Merkley, Hoeven, Van Hollen, Heinrich, and Murray,” said NCUIH CEO Francys Crevier.  

Background 

The National Council of Urban Indian Health (NCUIH) and the Tribal Budget Formulation Workgroup (TBFWG) requested $12.759 billion for the Indian Health Service (IHS) with an urban Indian health line item of $200.5 million for FY 2022. Additionally, 28 Congressional leaders requested $200.5 million for urban Indian health in FY 2022 from the House Appropriations Committee.  

House Appropriations Status 

The House bill (HR 4372) included $200.5 million for urban Indian health and was advanced by subcommittee June 28, and $8.1 billion for the Indian Health Service. The measure was part of a seven-bill package the House passed on July 29.  

Senate Bill Highlights 

Appropriations Chairman Patrick Leahy stated in the bill summary, “The bill makes an unprecedented investment to fulfill the federal government’s treaty and trust responsibilities to Native Americans by providing $18.1 billion for tribal programs and – for the first time – securing advanced appropriations for the Indian Health Service (IHS). The advance appropriation for IHS for fiscal year 2023 will enable IHS to continue to provide health services without interruption or uncertainty, improving the quality of care and providing peace of mind for patients and medical providers.”  

Indian Health Service 

  • $7,616,250,000 for IHS for fiscal year 2022, an increase of $1,379,971,000 to the enacted level and a decrease of $593,029,000 to the request 

Urban Indian Health 

  • $92,684,000 for the Urban Indian Health program, $30,000,000 above the enacted level and $7,316,000 below the budget request. 

Facilities Fix for Urban Indian Health 

  • “SEC. 435. The Secretary of Health and Human Services may authorize an urban Indian organization (as defined in section 4 of the Indian Health Care Improvement Act (25 U.S.C. 1603) that is awarded a grant or contract under title V of that Act (25 U.S.C. 1651 et seq.) to use funds provided in such grant or contract for minor renovations to facilities or construction or expansion of facilities, including leased facilities, to assist the urban Indian organization in meeting or maintaining standards issued by Federal or State governments or by accreditation organizations.” 

Advance Appropriations for IHS 

  • $6,586,250,000 in advance appropriations for fiscal year 2023, equal to the fiscal year 2022 Committee recommendation in accordance with the Concurrent Resolution on the Budget for Fiscal Year 2022
       
  • “The Committee recommendation also provides, for the first time, advanced appropriations for Indian Health Services and Indian Health Facilities. The bill includes $6,586,250,000 in advance appropriations for fiscal year 2023, equal to the fiscal year 2022 Committee recommendation in accordance with the Concurrent Resolution on the Budget for Fiscal Year 2022. The Committee recognizes that budget uncertainty due to temporary lapses of appropriations and continuing resolutions have an effect on the orderly operations of critical healthcare programs for Native American communities. Existing challenges related to recruitment and retention of healthcare providers, administrative burden and costs, and financial effects on Tribes were identified areas of concern in a Government Accountability Office [GAO] study (GAO–18–652).” 

Contract Support Costs and 105(l) Leases 

  • “The Committee strongly supports revising the budgetary classification for Contract Support Costs and Payments for Tribal Leases with the goal of including the language needed to codify such a change in the final appropriations Act for fiscal year 2022.” 


Bureau of Indian Affairs – Missing and Murdered Indigenous Women 

  • Missing and Murdered Indigenous Women: $24.9 million  
  • “The Committee is concerned about the crisis of missing, trafficked, and murdered indigenous women that has plagued Native communities. Native American women face high rates of violence and the lack of data on the number of women and girls who go missing or murdered further complicates the Nation’s ability to address this crisis. The Committee recommendation includes both funding and directives under the Bureau of Indian Affairs and the Indian Health Service in order to improve the Federal response to this epidemic.”
     
  • Note: It is unclear at this time if UIOs would be eligible for the funding resources provided to IHS under this provision. 

Bureau of Indian Education – Native Boarding School Initiative 

  • Native Boarding School Initiative: $7 million 

“In June 2021, the Department announced an investigation into the Federal government’s past oversight of Native boarding schools. The past policies of forcing children into these schools tore families apart and led to a loss of culture and identity for generations of Native American youth. The Committee applauds the efforts of the Department to reexamine this era and looks forward to the findings. The bill provides $7,000,000 for these efforts.” 

   

Next Steps 

Congress is likely to pass another continuing resolution before the current spending expires on December 3, 2021. If Democrats quickly begin “top-line” budget negotiations, it’s possible they could pass an omnibus funding package in the Senate.  

RETURNING TO SCHOOL: WHAT HEALTH LEADERS NEED TO KNOW

With the start of the 2021-22 school year around the corner and some schools starting this week, the entire country is again facing thousands of local decisions about under what conditions schools will reopen, in view of the major upheaval caused by the delta variant of coronavirus.  This strain is highly contagious, on the same level as measles and chickenpox, therefore public health officials are urging strict enforcement for mask wearing, physical distancing and vaccination.  To increase support for vaccines we must double down on containment and mitigation measures, including extensive testing, isolation, use of masks and social distancing of 3 feet at school campuses, under CDC guidelines.  To quote Dr. Rachel Levine, Assistant Secretary for Health at HHS, “We must cocoon a child surrounded by vaccinated adults.” This means that all teachers must be vaccinated, and children must wear masks while in school.  We all play a role and what the pandemic has taught us is that we are all interconnected.

Other Vulnerable Groups

Amidst these decisions weighing heavily on the minds of elected officials and public health officers, one piece of good news is that Pfizer will be seeking another Emergency Order Authorization in the fall for its new COVID-19 vaccine for children ages 5 to 11 years old.  (Younger than 5-yrs-old groups will take longer, because of the size of clinical trials and the cautious approach to de-escalate dosage when treating toddlers and infants).

Dr. Anne Edwards with the American Academy of Pediatrics reported on a national call with HHS and the CDC that pediatricians are seeing a lot of respiratory illness in medical offices, the ICU and regular hospital beds.  She and all medical staff strongly encourage everyone in the 12-and-older age group who are eligible to get vaccinated.  Studies show that no one is more trusted than Pediatricians, therefore the physician should take the time during medical visits to clear up any questions for the family.  We all need your help as trusted leaders in your community.  Dr. Amy Mullins, from the American Academy of Family Physicians, added that when confronting vaccine hesitancy, data shows that there is no single public message that will always overcome.

In addition, evidence about the safety of COVID-19 vaccination during pregnancy has been growing, including in the early months of pregnancy.  There is a trove of surveillance data, according to Dr. Peter Marks from the Federal Drug Administration (FDA).  Pregnant and recently pregnant women are more likely to get severely ill compared with non-pregnant people.  These data strongly point to the conclusion that the benefits of receiving a COVID-19 vaccine outweigh any known or potential risks of vaccination during pregnancy.  During the week of August 11, the Centers for Disease Control advanced this information and posted recommendations on their website.  Learn More.

Vaccine Boost

The FDA recently authorized a third dose or boost of the MRNI-type vaccine for those people who are immune-compromised, ages 15 and over.  Further, the evidence and rationale for taking this next step tells us that if a patient is only taking two medications for the underlying health condition, there is very little risk when taking a third dose.  The Advisory Committee on Immunization Practices (ACIP) will have to issue final guidance on this matter.

When administering immunizations, providers may wish to separate the administration of shots, especially when dealing with live viral vaccines and fever is present).  Soon the CDC will disclose real world evidence.

We ALL need your Help and the enlistment of public and private employers to take extra steps, such as time off from work to get vaccinated and providing free rides to vaccination sites.

NCUIH Endorsed Bill Introduced by Sen. Warren, Rep. Davids and Rep. Cole on National Day of Rememberance

On September 30th, 2021, in recognition of the National Day of Remembrance, Senator Elizabeth Warren (D-MA), Congresswoman Sharice Davids (D-KS-3) and Congressman Tom Cole (R-OK-4) Introduced the Truth and Healing Commission on Indian Boarding School Policies in the United States Act. This NCUIH endorsed bill would create a Truth and Healing Commission on Indian Boarding School Policies in the United States. Tasked with investigating and documenting the Indian boarding school policies and the historical and ongoing trauma that resulted, the Commission provides an environment for Native people to speak about their personal experiences and will provide recommendations to the government.  Working in collaboration with other agencies, the Commission would also develop recommendations for the federal government on how to acknowledge the trauma and help Native communities heal.

The federal government funded these boarding schools as recently as the 1960s, specifically to wipe out Indigenous cultures. Children were forcibly removed from their families and experienced horrific emotional, physical, and sexual abuse while in custody of these schools. The Commission not only highlights the government’s role in the abuse but will also build on the work of Secretary Haaland and the Department of the Interior in examining what happened at these schools.

Please contact your congressmembers and ask them to co-sponsor the Truth and Healing Commission on Indian Boarding School Policies in the United States Act.

Bipartisan Urban Indian Health Confer Act Introduced by Grijalva, McCollum and Cole

This bipartisan legislation will improve access to health care for urban Indians.

On September 10, 2021 the Urban Indian Health Confer Act was introduced by Chairman Raúl M. Grijalva (D-AZ), Rep. Betty McCollum (D-MN), Rep. Tom Cole (R-OK), Rep. Don Young (R-AK), Rep. Karen Bass (D-CA), and Del. Eleanor Holmes Norton (D-DC). As an ongoing effort to rectify longstanding parity issues within the Indian health system, this legislation would require agencies and offices within the U.S. Department of Health and Human Services (HHS) to confer with Urban Indian Organizations (UIOs) on policies and initiatives related to healthcare for urban American Indians and Alaska Natives (AI/AN).

 

The National Council of Urban Indian Health (NCUIH) has long advocated for the importance of facilitating confer between numerous federal branches within HHS and UIO-stakeholders without any resolve. Currently, only the Indian Health Service (IHS) has a legal obligation to confer with UIOs. It is important to note that Urban Confer policies do not supplant or otherwise impact tribal consultation and the government-to-government relationship between tribes and federal agencies.

 

“Agencies have been operating as if only IHS has a trust obligation to AI/ANs, and that causes an undue burden to IHS to be in all conversations regarding Indian Country in order to talk with agencies. It is imperative that UIOs have avenues for direct communication with agencies charged with overseeing the health of their AI/AN patients, especially during the present health crisis,” said NCUIH CEO, Francys Crevier (Algonquin).

 

“HHS’ failure to communicate with UIOs about healthcare policies that impact urban Indian communities is inconsistent with the federal trust responsibility and contrary to sound public health policy. The Urban Indian Health Confer Act will establish direct communication for UIOs across the entire department and ensure that urban Indian communities are aware of healthcare policy changes,” said Chairman Raúl M. Grijalva (D-AZ).

 

Support for confer with UIOs is strong among stakeholders in Indian Country. Recently, the National Congress of American Indians (NCAI) passed a resolution to “Call for the U.S. Department of Health and Human Services Secretary to Implement an Urban Confer Policy Across the Department and its Divisions.” NCUIH is grateful for the support of NCAI and Indian Country and commends Chairman Raúl M. Grijalva (D-AZ), Rep. Betty McCollum (D-MN), Rep. Tom Cole (R-OK), Rep. Don Young (R-AK), Rep. Karen Bass (D-CA), and Del. Eleanor Holmes Norton (D-DC) on taking bold action to resolve this parity issue for UIOs in the I/T/U system.

Background

 

Urban Confer policies are a response to decades of deliberate federal efforts (i.e. forced assimilation, termination, relocation) that have resulted in 70% of AI/AN people living outside of Tribal jurisdictions, thus making Urban Confer integral to address the care needs of most AI/AN persons.

 

The Urban Indian Health Confer Act will ensure the many branches and divisions within HHS and all agencies under its purview establish a formal confer process to dialogue with UIOs on policies that impact them and their AI/AN patients living in urban centers.  In fact, absent a confer policy, several agencies within HHS continue to reject repeated attempts to convene with UIOs and agencies to discuss critical urban Indian health issues. Such blatant disregard to communicate with UIOs is not only a failure to urban Indians and is inconsistent with the government’s responsibility, but it is contrary to sound public health policy. The bill would codify the intent of the Federal Trust Responsibility to ensure equitable health care access to AI/AN by amending legislative text in Section 514, Subsection (b) of the Indian Health Care Improvement Act (25 U.S.C. § 1660d) (IHCIA).

ENERGY AND COMMERCE COMMITTEE MARKS UP BILL INCLUDING URBAN INDIAN ORGANIZATIONS

The mark up is the Committee’s portion of the Build Back Better Act

 

Washington, D.C. -The Energy and Commerce Committee, led  by Chairman Frank Pallone, Jr. (NJ-06), met on September 13 -14 to mark up their portion of the Build Back America Act. Bills for committee markup included issues tackling the affordability of healthcare and prescription drug costs, closing the Medicaid gap, expansion of services for seniors and those with disabilities and critical in investments in public health and preparedness following the breakdowns during the COVID-19 pandemic.

 

“The Build Back Better Act is transformational legislation that invests in the American people, responds to the challenges of our time, and builds back a better future for generations to come” said Chairman Frank Pallone, Jr. (NJ-06).

Committee Mark Up Highlights

 

Key Components

  • $50,000,000 for funding to grow and diversify the doula: Workforce grants to health professions schools, academic health centers, State or local governments, territories, Indian Tribes and Tribal organizations, urban Indian organizations, or other appropriate public or private nonprofit 7 entities (or consortia of entities, including entities promoting multidisciplinary approaches), to establish or expand programs to grow and diversify the doula workforce
  • $75,000,000 for grants to health professions schools, academic health centers, State or local governments, territories, Indian Tribes and Tribal organizations, urban Indian organizations, or other appropriate public or private nonprofit 14 entities (or consortia of entities, including entities promoting multidisciplinary approaches), to establish or expand programs to grow and diversify the maternal mental health and substance use disorder treatment workforce.
  • $2,500,000,000 for community violence and trauma interventions. Competitive grants or contracts to local governmental entities, States, territories, Indian Tribes and Tribal organizations, urban Indian organizations, hospitals and community health centers, nonprofit community-based organizations, culturally specific organizations, victim services providers, or other entities as determined by the Secretary (or consortia of such
  • entities) to support evidence-based, culturally competent, and developmentally appropriate strategies to reduce community violence, including outreach and conflict mediation, 19 hospital-based violence intervention, violence interruption, and services for victims and individuals and 21 communities at risk for experiencing violence, such 22 as trauma-informed mental health care and counseling, school-based mental health services.
  • Includes $15 billion in new investments for pandemic preparedness and $3 billion to establish the Advanced Research Projects Agency for Health (ARPA-H).

Bill Mark Up Summary

 

Comprehensive Plan for Addressing High Drug Prices: A Report in Response to the    Executive Order on Competition in the American Economy” -released by Health and Human Services Secretary  Xavier Becerra

Key  Components

  • Makes drug prices more affordable and equitable for all consumers and throughout the health care system-support drug price negotiation with manufacturers and stop unreasonable price increases to ensure access to drugs that can improve health for all Americans
  • Improves and promotes competition throughout the prescription drug industry – Support market changes that strengthen supply chains, promote biosimilars and generics, and increase transparency
  • Fosters scientific innovation to promote better health care and improve health – Support public and private research and make sure that market incentives promote discovery of valuable and accessible new treatments, not market gaming

 

Key Component:

  • Ensures affordability of coverage for certain low-income populations by expanding the Affordable Care Act (ACA) premium tax credits to below 100% of the federal poverty level in 2022 through 2024 and reduce cost sharing for these individuals as well.

 

Key Component:

  • Establishes a federal Medicaid program by 2025 in states that have not yet expanded their programs under the ACA.

 

Key Component:

  • Permanently extends the Children’s Health Insurance Program (CHIP); require continuous twelve-month coverage for children in Medicaid and CHIP; and make permanent one full year of postpartum Medicaid coverage for pregnant women.

 

Key Components:

  • Energy and Commerce text includes provisions analogous to the House Ways and Means Committee with addition of dental, hearing and vision benefits to Medicare.
  • $190 billion proposal for investment in home and community-based services (HCBS).

Next Steps

Markups are scheduled to be completed next week. Members will then begin to package them into one bill for consideration in the House. Timing of that vote is uncertain, but the target is to complete this by the September 27 agreed upon date to consider it in tandem with the bipartisan infrastructure package.[1]

[1] Updates on Budget Reconciliation; HHS Drug Pricing Proposal (natlawreview.com)