Letter to IHS in re: Catastrophic Health Emergency Fund (CHEF) Proposed Rule

Submitted via: www.regulations.gov

October 31, 2016


Terri Schmidt, Acting Director
Office of Resource Access and Partnerships
5600 Fishers Lane
Mail Stop: 09E70
Rockville, MD 20857

RE: Catastrophic Health Emergency Fund (CHEF) Proposed Rule


Dear Ms. Schmidt:

On behalf of National Council of Urban Indian Health (NCUIH), I write comments in response to the Indian Health Service’s (IHS) proposed regulation for the Catastrophic Health Emergency Fund (CHEF), which was published in the Federal Register on January 26, 2016 and initially closed on May 11, 2016. Thank you for extending the comment period further until October 31, 2016 and having several in-person and telephonic consultations.

The National Council of Urban Indian Health was founded 18 years ago to represent the interests of Urban Indian Health Programs (UIHPs) before Congress and Federal agencies, and to influence policies impacting the health conditions experienced by urban American Indians and Alaska Natives (AI/AN).The National Council of Urban Indian Health is a 501(c)(3), membership-based organization devoted to support the development of quality, accessible, and culturally sensitive health care programs for AI/AN living in urban communities. NCUIH fulfills its mission by serving as a resource center providing advocacy, education, training, and leadership for urban Indian health care providers. NCUIH strives for healthy American Indians and Alaska Natives living in urban settings, which comprise over 70% of the AI/AN population, supported by quality, accessible health care centers and governed by leaders in the Indian community. NCUIH represents urban Indian Health Programs receiving grants under Title V of IHCIA and the American Indian and Alaska Natives they serve.

NCUIH praises the initiatives IHS has taken to improve the quality of healthcare AI/AN receive. We are appreciative of IHS has circulating proposed regulations with regards to the CHEF program and while NCUIH supports the lowering of threshold to $19,000 in FY 2016, we are very concerned with some of the other elements in the proposed rule.

Work collaboratively with Tribes and Urban Indian Organizations (UIOs)/ Urban Indian Health Programs (UIHPs) to establish a Catastrophic Health Emergency Fund workgroup.

The proposed rule stated that Tribal consultation took place prior to its creation. Additionally, three meetings of the IHS Director’s Workgroup on Improving Contract Health Services programs were held on October 12-13, 2010, June 1-2, 2011, and January 11-12, and two Dear Tribal Leader letters were issued on February 9, 2011 and May 6, 2013. The recommendations of the Workgroup described in these letters make it evident that the Workgroup was never consulted on the proposed rule as it was published in January 26, 2016. Consequently, NCUIH respectfully requests IHS to conduct “Meaningful Tribal consultation and collaboration”, as mandated by Executive Order 13175. The development of regulations for CHEF was not the focus of the Workgroup recommendations discussed during those meetings. Most importantly, an opportunity to deliberate or recommend on changes to IHS polices such as definition on alternate resources was never provided to the Workgroup.

The preamble to this proposed rule also relies on the rulemaking process to serve as Tribal consultation. NCUIH disagrees that the rulemaking process is Tribal consultation as it is open to public discourse, not just Tribes and UIHPs/UIOs. Tribal consultation as defined in the Executive Order 13175 stating that federal agencies, prior to the rulemaking process that has Tribal implications defined as “regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes” are required to consult with Tribal officials “early in the process of developing the proposed regulation.”

Tribes’ recommendations are simply responses IHS’s proposed rule that has been already developed rather than execution of the Executive Order 13175 that mandates Tribal engagement in rulemaking process. NCUIH respectfully requests that IHS will not move forward with a final rule until true “Meaningful Tribal consultation and collaboration” can take place in the formulation of the final rule that will result from collaborative efforts of IHS, Tribal officials and Urban organizations in a form of workgroup.


Definition of Alternate Resources

Pursuant to Section 136.506 the Catastrophic Health Emergency Fund (CHEF) proposed rule “any Federal, State, Tribal, local, or private source of reimbursement for which the patient is eligible. Such resources include health care providers, institutions, and health care programs for the payment of health services including but not limited to programs under titles XVIII or XIX of the Social Security Act (i.e. Medicare and Medicaid), other Federal health care programs, State, Tribal or local health care programs, Veterans Health Administration, and private insurance.” NCUIH opposes the inclusion of “Tribal” to be defied as primary payers of the “alternate resource.” NCUIH recommends that the IHS remove “Tribal” from the definition of “alternate resource” in Section 136.501 and Section 136.06.

The “alternate resource” definition for purposes of CHEF eligibility is derived from 25
U.S.C. Section 1621e(d)(5), which requires the Secretary “to ensure that no payment be made from CHEF to any provider of treatment to the extent that such provider is eligible to receive payment for the treatment from any other Federal, State, local or private source of reimbursement for which the patient is eligible.” Additionally, under 25 U.S.C. Section 1683, CHEF, “shall not be used to pay for health services provided to eligible Indians to the extent that alternate Federal, State, local, or private insurance resources for payment…are available and accessible to the beneficiary…” “Tribal” is not included as an alternate resource in the law. NCUIH understands the importance of conservation of limited CHEF funds by using other available payment resources prior to utilization of the CHEF funds. However, the inclusion of Tribes as one of the sources of payment as alternate resources to CHEF is divergent to legal authority under 25 U.S.C. Section 1621e(d)(5) and 25 U.S.C. Section 1683.

Additionally, the significance of preserving Tribal resources has been emphasized by IHS as expressed under IHS’ payor of a last resort regulations which maintain Congressional intent not to burden Tribal resources. This radical change in IHS policy is a violation of the government’s Trust responsibility to provide health care to Tribes. Tribes should never pay primary to the federal government and IHS must not move forward with its proposed definition of alternate resources.

Reimbursement Procedure

Pursuant Sections 202(d)(3) and (4) of the IHCIA the HHS Secretary must develop regulations that establish a procedure for the reimbursement of costs that exceed the statutory threshold amount and a procedure for the payment of CHEF in cases where the exigencies of the medical circumstances warrant treatment prior to the authorization of CHEF. The proposed reimbursement procedure identifies how to submit a claim and the content that must be provided in a claim. However, it does not provide guidance or procedure of how Purchased/Preferred Care directors will review CHEF claims. Additionally, no process of IH’S determination of alternate resources applicability to CHEF claims is provided.

NCUIH believes that the proposed rule should provide procedures governing the reimbursement of CHEF funds.

Threshold Decrease

NCUIH commends the IHS for the initiative to lower of threshold to $19,000. Nonetheless, we want to voice our concern regarding the annual increase of the threshold with accordance to Consumer Price Index. NCUIH strongly supports Tribes recommendation to explore alternative solutions other than threshold annual increase by to Consumer Price Index.

Conclusion

NCUIH hopes that IHS will work with Tribes and UIOs/UIHPs to implement all provided comment in creation of the Catastrophic Health Emergency Fund final rule. We look forward to further engagement with IHS on Catastrophic Health Emergency Fund. Please contact Francys Crevier, Policy Analyst and Congressional Relations Liaison at FCrevier@ncuih.org, if there are any additional questions or comments on the issues addressed in these comments.


Sincerely,

Ashley Tuomi
President
National Council of Urban Indian Health