There has long been a crisis in inadequate funding and availability of healthcare services affecting Native Americans within the federal Indian Healthcare system. The Indian Health Service and the Indian tribes and tribal organizations (“T/TOs”) who are providing services under the Indian Self-Determination and Education Assistance Act continue to struggle with limited funding and lack of available services.

The good news is that recent changes in the law are aimed at addressing some of these issues, and have made it much easier for private sector healthcare providers and other entities to work together with T/TOs in potentially meaningful and mutually beneficial ways. These changes have resulted in some exciting partnerships and new opportunities for increased quality and quantity of healthcare services. T/TOs now have increased flexibility to work together with healthcare providers in the private sector to improve the quality and availability of healthcare services. They are able to participate in qualified health plan networks to help ensure that Indian people can continue to be served by their providers of choice for culturally relevant care, and they are helping their beneficiaries to secure greater access to care through private health insurance in the marketplaces. The law has now also relaxed restrictions on the ability to extend care to non-Natives in their communities, which assists in the development of crucial health infrastructure and improved healthcare accessibility in rural areas.

This article will briefly discuss the statutory and regulatory framework under which many T/TOs deliver healthcare services, and then describe a few changes in the law, namely the Indian Health Care Improvement Act (“IHCIA”) and the Patient Protection and Affordable Care Act (“PPACA”), that have made it possible to knock down the previous “silos” of care so that T/TOs and the private healthcare sector can work together more closely than ever before.

Healthcare Delivery in Indian Country

The provision of healthcare to eligible Indians is currently delivered through a federal/tribal relationship that exists under a number of Indian-specific statutes, regulations and other laws. Federal responsibilities for health services to Indian people arise not only out of the many treaties and settlements entered between the federal government and individual tribes, but also out of the Indian Commerce Clause in Article I, Section 8 of the United States Constitution, which provides, “The Congress shall have the power to ... [r]egulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The federal government’s long-standing trust responsibility to tribes is also one of the legal underpinnings of federal healthcare for Indian people.

The United States government began providing healthcare to Indians in the early 1800s, in large part to rein in deadly outbreaks of smallpox. This was originally within the purview of the War Department, until the responsibility was transferred to the newly created U.S. Department of the Interior in 1849. The first legislation specifically appropriating funds for Indian health appeared in fiscal year 1911, with permanent appropriations for Indian health being made by the Snyder Act of 1921. The Snyder Act remains one of the key laws supporting the appropriation of funds for Indian healthcare. The 1954 Transfer Act then shifted responsibility for providing healthcare, and custody of several federal healthcare facilities, from the Bureau of Indian Affairs in the Department of the Interior to the Public Health Service under the Department of Health, Education and Welfare. Today, the primary federal responsibility for Indian healthcare resides with the Indian Health Service (“IHS”), an agency within the Department of Health and Human Services.

Two other laws of special significance to the delivery of healthcare in Indian country were initially passed in the mid-1970s: the Indian Self-Determination and Education Assistance Act (“ISDEAA”) in 1975 and the IHCIA in 1976.

ISDEAA

The ISDEAA authorizes federally recognized tribes, including Alaska Native villages and tribal organizations sanctioned by tribes, to contract with the IHS to take over the management and operation of federal health programs for the benefit of eligible Indian people. Under the ISDEAA, T/TOs can assume the funds and responsibilities for providing healthcare to their members and other eligible Indians that were previously provided on their behalf by the IHS. T/TOs can then redesign those services in the way they think is best to deliver quality healthcare in their own communities — targeting their own communities’ specific healthcare needs, with an eye for cultural competence. T/TOs operate a wide variety of healthcare programs under the ISDEAA, such as hospital and clinic services; licensed physician coverage; dental; pharmacy; substance abuse and mental health programs; maternal child health; traditional healing; vaccinations; preventative screening; and health/diabetes education.

The ISDEAA is administered through contractual agreements between the IHS and the individual T/TO, which transfer funding from the federal government to the T/TO in order to carry out specific healthcare scopes of work. These ISDEAA agreements are based on the federal trust responsibility and the government-to-government relationship, and are grounded in the recognition of Tribal sovereignty. They are not federal procurement contracts and are not subject to the Federal Acquisition Regulations, but instead have their own statutory and regulatory structure. In FY 2015, the IHS’s overall appropriation from Congress was $4,642,381,000, over half of which was transferred to T/TOs under the ISDEAA.

Not all T/TOs throughout Indian country have taken over all of the healthcare programs previously delivered on behalf of Indian people by the IHS. Some T/TOs only assume control of selected health programs and some do not manage any healthcare services. In those situations, the IHS retains responsibility for the provision and management of healthcare services. There are a variety of reasons T/TOs might choose to leave responsibility for certain services with the IHS, including their governmental capacity, lack of adequate funding, or a strong belief that the federal government remains responsible for carrying out its trust responsibility to tribes.

Health service delivery within Indian country thus generally consists of a combination of “direct care” and “purchased/referred care” (“PRC”) that is provided by the IHS or a T/TO that has contracted with the IHS under the ISDEAA. Direct care services are those that are provided directly by the IHS or a T/TO in an IHS/tribally operated healthcare facility. PRC, which until fairly recently was called “contract health services,” consists of any specialty or other services that are not available in a direct care facility, but must be purchased on the open market by the IHS or a T/TO from an outside healthcare provider or hospital.

The level of services available from a T/TO that has contracted with the IHS under the ISDEAA varies widely. Some T/TOs operate very small clinics with only basic health-care services, while others may own and operate full-blown hospitals, specialty care clinics or long-term care facilities. With funding for the IHS at just 59 percent of need, the amount and variety of services offered is often dependent on a T/TO’s ability to generate additional revenue.

IHCIA

The IHCIA is another central piece of federal legislation for addressing healthcare needs in Indian country. A major goal of the Act has been to elevate the quantity and quality of healthcare services to raise the health status of Indians. The IHCIA was recently permanently reauthorized by Congress in a single line of text appearing in PPACA. The IHCIA addresses a wide range of issues affecting healthcare, including programs designed to increase recruitment of healthcare professionals; scholarships for Native American students who choose to enter the health professions; health promotion and disease prevention, like diabetes treatment and prevention; reimbursements from third-party payors such as Medicare, Medicaid and private insurance; construction of healthcare facilities and sanitation facilities; licensure of health professionals providing care at tribally-operated healthcare facilities; health services to Indians living in urban areas; and behavioral health programs. The purpose of the Act is to “implement the Federal responsibility for the care and education of the Indian people by improving the services and facilities of Federal Indian health programs and encouraging the maximum participation of Indians in such programs, and for other purposes.”

Innovative Partnerships: The IHCIA

The recent, permanent reauthorization of the IHCIA has substantively changed the way in which T/TOs can interact with their communities and other providers by giving T/TOs that are operating their own healthcare programs greater flexibility to provide services to non-Indians. Before the reauthorization occurred, T/TOs providing services under the ISDEAA were limited to providing those services to eligible Indian beneficiaries, with a few narrow exceptions. To be eligible for direct services from a T/TO, an individual has to be a “person of Indian descent belonging to the Indian community served.” This could include tribal members and their descendants or other persons, as determined by individual tribes. Additional eligibility requirements must be met in order to receive services through a T/TO’s PRC program, such as residence within an Indian reservation or residence within a T/ TO’s “contract health service delivery area” and maintaining close social and economic ties to that T/TO.

The circumstances in which T/ TOs could provide services to persons who do not meet these eligibility criteria were quite restricted. For example, T/TOs could provide care to a non-Indian member of an eligible Indian’s household as necessary to control an acute infectious disease or another public health hazard. Care and treatment could be provided in an emergency, and to children under the age of 19 in certain situations. T/TOs could also choose as a matter of tribal law to provide services to spouses of eligible Indians.
Services to others (generally referred to as “non-beneficiaries”) could be provided by a T/TO only if the IHS and the T/TO made a joint decision that the provision of services to non-beneficiaries would not result in any denial or diminution of services to eligible Indians and there are no other reasonable, alternative health facilities available in the area to meet the needs of the non-beneficiaries. This limitation was set forth in the former Section 813(b) of the IHCIA. It was at that time rather difficult to get agreement between the IHS and the T/TOs that wished to serve non-beneficiaries, particularly with respect to the issue of what constitutes “reasonable alternative health facilities” in the area. As a result, not many of the T/TOs contracting with the IHS under the ISDEAA were able to offer any services to non-beneficiaries.

Now that the IHCIA has been reauthorized, the language in Section 813 has changed: the decision to serve non-beneficiaries is now solely a tribal decision – there no longer has to be a joint decision requiring the agreement of the IHS, and T/TOs need only consider whether extending services to non-beneficiaries would result in a denial or diminution of care to eligible Indians. To provide services to non-beneficiaries, T/ TOs typically take these issues into consideration in a “Section 813 Resolution,” making the decision a matter of tribal law that can be reconsidered as warranted by any developments in the future.

In many tribal communities, this has resulted in eliminating the need for separate silos of healthcare: one silo for eligible Indian patients and one silo for non-beneficiaries. Integrated care is now a realistic and viable opportunity. In extending healthcare services to non-beneficiaries, T/TOs charge the non-beneficiaries for the services provided — or the individual’s available third-party payors — and reinvest those collections into their healthcare delivery system. The increased resources are resulting in greater availability and variety of healthcare services for everyone in the community — Indian and non-Indian alike, and broader overall involvement by T/TOs in their communities, as well.

These changes are leading to new opportunities for innovation and partnerships with the private health-care sector. For example, it has led to construction of new facilities, joint ventures with other practitioners, expanded scope of services, and options for new or collaborative care, such as urgent care centers, drug rehabilitation facilities, long-term care facilities, and specialty clinics. These opportunities are developing into real changes in rural communities, with the T/TOs working together with the local healthcare providers and local governments to the benefit of all involved.

Innovative Partnerships: PPACA

In addition to the permanent reauthorization of the IHCIA, PPACA contains other provisions aimed at improving access to and the quality of care for American Indians and Alaska Natives. On top of bene¬fits available to the U.S. general population, the law provides additional incentives for members of Federally Recognized Tribes to purchase private insurance, many for the first time, through the marketplaces. Tribal members may enroll in a qualified health plan (“QHP”) one time per month, instead of only during open enrollment periods. They may also use the income-based premium tax credits available to individuals and families under 400 percent of the federal poverty level to purchase the most affordable QHP, a bronze level plan. A bronze level plan has the lowest premiums, but higher copayments and deductibles. This, however, is not a factor for Tribal members, who are exempt from cost-sharing in most circumstances when insured through a zero or limited cost-sharing QHP. In many Tribal communities, health insurance is a direct benefit to patients. Due to the underfunding of the IHS, care — especially specialty care — must often be rationed or delayed. With this health insurance as the first payor, the insured patient has greater access to more timely and a wider range of services.

The Indian-specific provisions under PPACA provide an unprecedented opportunity to insure Tribal members who receive services through IHS or T/TOs. When insured Tribal members access care through an Indian health provider, IHS and T/TOs may bill the insurer for the cost of the care. Collections from third party payors enable Indian health providers to fill in the gaps of federal underfunding and provide more services to more patients.

However, since enrollment on the marketplaces began in 2013, the enrollment rate for American Indians and Alaska Natives has remained low. This is likely due to a variety of factors, including some failures to adequately address tribal issues raised in Tribal comments during the federal rulemaking process, the overall cost of the plans to individual tribal members despite any credits as compared to the ability to obtain free care accessed through Indian health providers, and the notion that the purchase of health insurance does not represent fulfillment of the federal government’s trust responsibility. In order to overcome these barriers, one option available to T/TOs is the sponsorship of Tribal member premiums. Under a Tribal sponsorship model, the T/TOs pay a portion of the QHP premium on behalf of its uninsured citizens.

This model is not exactly new in Indian country. Following the creation of the Medicare Part D prescription drug program, some savvy T/TOs used this method to strengthen the delivery of prescription drugs to their elders. During the implementation of PPACA, the Centers for Medicare & Medicaid Services (“CMS”) ensured that T/TOs have the opportunity to implement sponsorship programs during the PPACA rulemaking process. Regulations made final last year require issuers offering QHPs on marketplaces to accept premium and cost-sharing payments from certain third parties, including T/TOs and Urban Indian Health organizations. Similarly, regulations also allow for marketplaces to facilitate Tribal sponsorship, including premium aggregation, so that insurance for Tribal members is easily consolidated into one monthly payment. A few state-based marketplaces have even built in electronic methods of premium aggregation for T/TOs and others, but the Federally-Facilitated Marketplace has yet to implement this mechanism.

Regardless of whether they are located in a state operating its own marketplace or not, a number of T/TOs are instituting Tribal sponsorship programs. In order to effectively begin a sponsorship program, T/TOs first identify their uninsured population, eliminating those with employer-sponsored insurance or who are eligible for other government programs. Next, they generally select a single QHP for sponsorship. The T/ TOs then collaborate with the QHP issuer to develop a relationship that includes the T/TO as an in-network provider and establishes a convenient premium payment mechanism, if one does not currently exist on the marketplace. A well-built relationship between issuers and T/TOs is valuable, as it facilitates the mutual benefit of both parties. For the first time, T/TOs are able to insure their entire patient population. Issuers are able to assist in increased access to care for a medically-underserved population, while spreading risk over a greater number of people and expanding profits.

A healthy relationship between T/TOs and issuers is also important to fulfilling the law’s network adequacy requirements. In order to receive QHP certification each plan year, issuers must include a sufficient number of Essential Community Providers (“ECPs”) in their plan networks. ECPs are those health providers providing care to primarily low income and medically-underserved individuals. For the 2016 plan year, QHPs operating on the Federally-Facilitated Marketplace must contract with at least 30 percent of ECPs within a ser-vice area. All Indian health providers are considered ECPs and count towards this threshold. Additionally, it is also a requirement for QHPs to extend a “good faith” offer to contract to all Indian health providers in their service areas. This ensures that American Indians and Alaska Natives may continue to see the culturally competent provider of their choice, while also having access to a robust provider network for specialty care. “Good faith” means the offer has terms “that a willing, similarly-situated, non-ECP provider would accept or has accepted.” QHPs are expected to provide verification of these offers to CMS, if requested.

However, despite direction and assistance from CMS, including the creation of a national list of ECPs, many Indian health providers report not receiving offers to contract from all (or sometimes any) QHPs within their regions. As preparation for the 2017 plan year begins, Indian health providers will continue to work with CMS to ensure that QHPs meet their network adequacy requirements.

In addition, the use of an Indian addendum, otherwise known as the “Model QHP Addendum,” is required when contracting with Indian health providers. The Model QHP Addendum is a document that has been developed by CMS and Tribes to facilitate QHP contracting with Indian Health providers. Some elements of traditional contracts run contrary to laws applicable to Indian Health providers, so the addendum re-states relevant Indian law to ensure that all parties are on the same page. Using the Model QHP Addendum provides clarity and certainty to both issuers and Indian Health providers by removing perceived obstacles to contracting and promoting issuer compliance with federal Indian law, which limits conflict between parties. Through these new and improved relationships formed between Indian health providers and QHP issuers under PPACA, American Indian and Alaska Native people across the country stand to have greater access to healthcare.

A Few Legal Considerations

In thinking about the expanded ways in which it may now be possible to partner with T/TOs for the provision of healthcare services, there are a number of legal considerations that should be kept in mind. First and foremost, it is important to remember that every T/TO is different, their provision of healthcare and the way in which they are delivering healthcare is different, and so are their priorities and those of their communities. It is worth reaching out to any T/TO to learn more about their specific health-care delivery system and whether it is possible to work together with them toward a common goal.

Even though the federal health-care system has its own statutory and regulatory scheme, one must also keep in mind whether a particular relation-ship would run afoul of healthcare fraud and abuse laws, such as the Stark Laws or the federal Anti-Kickback Statute, and consider possible structures of that relationship under one of the available exceptions or safe harbors. State laws, such as certificate of need requirements, may or may not apply to a particular arrangement being contemplated. The structure of the partnerships with T/TOs may also raise a number of issues depending on where the activities are taking place — on or off an Indian reservation or other trust land. For example, the site could affect jurisdictional issues, application of state licensure and certification requirements, and taxation matters.

One could also consider whether a proposed partnership might be structured in a way to fall under a T/TO’s ISDEAA agreement to take advantage of certain benefits such as the Federal Tort Claims Act (“FTCA”), billing authorities, and flexible licensure requirements for health professionals. For example, when a T/TO has a con-tract or compact under the ISDEAA, the T/TO’s employees (including per-sons providing services through a personal services contract) are covered by the FTCA against liability for torts that arise from carrying out the ISDEAA contract or compact, thus reducing the need for separate, comprehensive liability or malpractice insurance.

Conclusion

New laws and authorizations are changing the delivery of healthcare in Indian Country and beyond. As T/TOs take on greater responsibility for the management of their own healthcare systems and apply creative solutions to problems of access and funding, they are able to expand their reach beyond their own people to the com-munities in which they live. Similarly, insurers and others who partner with T/TOs have the opportunity to form lasting partnerships with Tribal gov-ernments and to improve the lives of our nation’s first people.