Indian Health Care: Impact of the Affordable
Care Act (ACA)
Elayne J. Heisler
Analyst in Health Services
December 14, 2012
Congressional Research Service
7-5700
www.crs.gov
R41152
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Indian Health Care: Impact of the Affordable Care Act (ACA)
Summary
On March 23, 2010, President Obama signed into law a comprehensive health care reform bill,
the Patient Protection and Affordable Care Act (ACA; P.L. 111-148). The law, among other
things, reauthorizes the Indian Health Care Improvement Act (P.L. 94-437, IHCIA), which
authorizes many programs and services provided by the Indian Health Service (IHS). In addition,
it makes several changes that may affect American Indians and Alaska Natives enrolled in and
receiving services from the Medicare, Medicaid, and State Children’s Health Insurance Program
(CHIP)—also called Social Security Act (SSA) health benefit programs, and it includes changes
to private health insurance that may affect American Indians and Alaska Natives and may affect
tribes that offer private health insurance.
IHCIA authorizes many IHS programs and services, sets out the national policy for health
services administered to Indians, and articulates the federal goal of ensuring the highest possible
health status for Indians, including urban Indians. In addition, it authorizes direct collections from
Medicare, Medicaid, and other third-party insurers. Prior to the ACA, IHCIA was last
reauthorized in FY2000, although programs have received appropriations since that time. The
ACA reauthorizes IHCIA and extends authorizations of appropriations for IHCIA programs
indefinitely. It amends a number of sections of IHCIA in general, to permit tribal organizations
(TOs) and urban Indian organizations (UIOs) to apply for contract and grant programs for which
they were not previously eligible; to create new mental health prevention and treatment programs;
and to require demonstration projects to construct modular and mobile health facilities in order to
expand health services available through IHS, Indian Tribes (ITs), and TOs. It also made several
organizational changes to IHS. It requires IHS to establish an Office of Direct Service Tribes to
serve tribes that receive their health care and other services directly from IHS as opposed to
receiving services through IHS-funded facilities or programs operated by ITs or TOs. In addition,
the law requires IHS to develop a plan to establish a new area office to serve tribes in Nevada and
requires the Secretary of the Department of Health and Human Services (HHS) to appoint a new
IHS Director of HIV/AIDS Prevention and Treatment.
In addition to reauthorizing IHCIA, the ACA includes a number of provisions that may affect
American Indians and Alaska Natives who have private insurance coverage or who receive
services through SSA health benefit programs. With regard to private insurance coverage, the
ACA provides a special enrollment period for American Indians and Alaska Natives who may
enroll in private insurance offered through an exchange and exempts certain American Indians
and Alaska Natives from the requirement to obtain private insurance coverage. Finally, it
excludes tribal health benefits from being counted as gross income for tax purposes. With regard
to SSA health benefit programs, the new law permits specified Indian entities to determine
Medicaid and CHIP eligibility and extends the period during which IHS, IT, and TO services are
reimbursed for all Medicare Part B services, indefinitely, beginning January 1, 2010. Prior to the
ACA, authority for these facilities to receive Medicare Part B reimbursements for certain
specified services had expired on January 1, 2010.
This report, one of a series of CRS products on the ACA, summarizes some of the key changes
made in the reauthorization of IHCIA and summarizes other changes included in the ACA that
may affect American Indian and Alaska Native health and health care. Another report, CRS
Report R41630, The Indian Health Care Improvement Act Reauthorization and Extension as
Enacted by the ACA: Detailed Summary and Timeline, by Elayne J. Heisler, provides a detailed
section-by-section summary of the IHCIA Reauthorization and Extension Act of 2009.
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Indian Health Care: Impact of the Affordable Care Act (ACA)
Contents
Introduction ...................................................................................................................................... 1
Overview of Indian Health Care ...................................................................................................... 1
Indian Health Care Improvement Act .............................................................................................. 2
IHCIA Reauthorization in the ACA........................................................................................... 3
Definitions ................................................................................................................................. 5
Selected Major Changes to IHCIA in the ACA ............................................................................... 5
IHCIA Title I: Indian Health, Human Resources, and Development ............................................... 6
IHCIA Title II: Health Services ....................................................................................................... 6
IHCIA Title III: Facilities ................................................................................................................ 7
IHCIA Title IV: Access to Health Services ...................................................................................... 8
IHCIA Title V: Health Services for Urban Indians .......................................................................... 9
IHCIA Title VI: Organizational Improvements ............................................................................. 10
IHCIA Title VII: Behavioral Health Programs .............................................................................. 10
IHCIA Title VIII: Miscellaneous ................................................................................................... 11
Native Hawaiian Health Care Reauthorization .............................................................................. 12
ACA Private Health Insurance Changes ........................................................................................ 12
SSA Health Benefit Improvements for Indians ............................................................................. 13
Tables
Table 1. IHCIA Reauthorization Summary ...................................................................................... 4
Contacts
Author Contact Information........................................................................................................... 14
Acknowledgments ......................................................................................................................... 14
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Indian Health Care: Impact of the Affordable Care Act (ACA)
Introduction
On March 23, 2010, President Obama signed into law a comprehensive health care reform bill,
the Patient Protection and Affordable Care Act (ACA; P.L. 111-148),1 which, among other things,
reauthorizes the Indian Health Care Improvement Act (P.L. 94-437, IHCIA).2 This report, one of a
series of CRS products on the ACA, summarizes some of the key changes made in the
reauthorization of IHCIA. In addition, the report summarizes other ACA provisions related to
American Indians and Alaska Natives enrolled in and receiving services from Medicare,
Medicaid, and the State Children’s Health Insurance Program (CHIP)—also called SSA health
benefit programs3 and changes to private health insurance coverage that may affect American
Indians’ and Alaska Natives’ access to private health insurance coverage. Another report, CRS
Report R41630, The Indian Health Care Improvement Act Reauthorization and Extension as
Enacted by the ACA: Detailed Summary and Timeline, by Elayne J. Heisler, provides a detailed
section-by-section summary of the IHCIA Reauthorization and Extension Act of 2009.
The report begins with an overview of the Indian Health Service (IHS) and IHCIA. It then
discusses each of the eight titles in IHCIA and how the ACA amends each of these titles. Finally,
the report discusses other ACA changes that may affect American Indians and Alaska Natives.
For each topic, including each IHCIA title, discussed, the report first gives a brief description for
context, and then describes the changes made by the ACA.
Overview of Indian Health Care
The Indian Health Service (IHS), an agency within the Department of Health and Human
Services (HHS), provides health care for approximately 2 million eligible American
Indians/Alaska Natives through a system of programs and facilities located on or near Indian
reservations, and through contractors in certain urban areas.4 IHS provides services in 35 states,
1 The ACA was subsequently amended by the Health Care and Education Reconciliation Act (HCERA, P.L. 111-152).
These two laws are collectively referred to as the ACA in this report. Previous CRS reports on the Patient Protection
and Affordable Care Act used the acronym PPACA to refer to the statute. CRS will use “ACA,” in conformance with
the more widely used acronym for the law.
2 On June 28, 2011, the Supreme Court ruled, in National Federation of Independent Business v. Sebelius (NFIB), on
the constitutionality of both the ACA-implemented individual mandate, which requires most U.S. residents (beginning
in 2014) to carry health insurance or pay a penalty, and the ACA Medicaid expansion. The Court upheld the individual
mandate as a constitutional exercise of Congress’s authority to levy taxes. The penalty is to be paid by taxpayers when
they file their tax returns and enforced by the Internal Revenue Service. In a separate opinion, the Court found that
compelling states to participate in the ACA Medicaid expansion—which the Court determined to be essentially a new
program—or risk losing their existing federal Medicaid matching funds was coercive and unconstitutional under the
Spending Clause of the Constitution and the Tenth Amendment. The Court’s remedy for this constitutional violation
was to prohibit HHS from penalizing states that choose not to participate in the expansion by withholding any federal
matching funds for their existing Medicaid program. However, if a state accepts the new ACA expansion funds
(initially a 100% federal match), it must abide by all the expansion coverage rules. Under NFIB, all other provisions of
ACA—including the Indian Health Care Improvement Act—remain fully intact and operative.
3 Other provisions in the ACA may also affect Indian health. For example, Indian tribes may be eligible for new grant
or contract programs that augment the health care workforce or improve public health, they may participate in reforms
made to the private insurance market, and they may benefit from Medicare and Medicaid reforms. More information
about ACA changes can be found at CRS’s website under “Issue in Focus-Health Reform” at http://www.crs.gov/
Pages/subissue.aspx?cliid=3746&parentid=13.
4 U.S. Department of Health and Human Services, Indian Health Service, IHS Fact Sheet: IHS Year 2011 Profile
(continued...)
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subdivided into 12 geographic “Areas” that consist of one or more states.5 Each Area is
administered by an Area Office; Areas, in turn, are further subdivided into service units that
consist of one or more facilities. IHS may provide services directly, or Indian tribes (ITs) or tribal
organizations (TOs) may operate IHS facilities and programs themselves through self-
determination contracts and self-governance compacts negotiated with IHS.6 Although most IHS
facilities are located on or near reservations, IHS also funds urban Indian health projects (UIHPs),
through grants or contracts to urban Indian organizations (UIOs).
The IHS provides an array of medical services, including inpatient, ambulatory, emergency,
dental, public health nursing, and preventive health care.7 The IHS does not have a defined
medical benefit package that excludes or includes specific conditions or types of health care.
Besides providing general clinical health services, the IHS also focuses on health conditions
prevalent among American Indians and Alaska Natives such as infant mortality, diabetes, and
hepatitis B. In addition, IHS provides mental health and alcohol and substance abuse services
because, compared to the overall U.S. population, American Indians and Alaska Natives are more
likely to die from alcoholism-related diseases or to commit suicide.8
In addition to health services, the IHS funds projects related to health care facilities and
sanitation. Specifically, the IHS funds the construction, equipping, and maintenance of hospitals,
health centers, clinics, and other health care delivery facilities, both those operated by the IHS
and those operated by tribes. In order to improve the health of, and reduce the incidence of
disease among, American Indians and Alaska Natives, the IHS also funds the construction of
water supply and sewage facilities and solid waste disposal systems, and provides technical
assistance for the operation and maintenance of such facilities. The IHS has attributed decreases
in gastrointestinal disease among American Indians and Alaska Natives to improved sanitation
facilities.9
Indian Health Care Improvement Act
The Indian Health Care Improvement Act, as passed in 1976 and subsequently amended,
authorized many specific IHS activities,10 set out the national policy for health services
administered to Indians, and declared that it was a federal goal to improve the health status and
conditions of the IHS service population. IHCIA also authorized direct collections from
(...continued)
http://www.ihs.gov/PublicAffairs/IHSBrochure/Profile2011.asp.
5 IHS provides services to American Indians and Alaska Natives residing in 35 states. Area offices may serve tribes in
one state, such as the Alaska Area office that administers services in Alaska, or may serve tribes in multiple states, such
as the Nashville Area office that administers services for tribes on the east coast, in Alabama, Louisiana, and parts of
Texas.
6 Authorized by P.L. 93-638, the Indian Self-Determination and Education Assistance Act of January 4, 1975, 88 Stat.
2203, as amended; 25 U.S.C. 450 et seq.
7 See 42 CFR 136.11, “Services available.”
8 IHS, Trends in Indian Health, 2002-2003, Part 4: General Mortality Statistics.
9 U.S. Department of Health and Human Services, Indian Health Service, “IHS Fact Sheets: Safe Water and Waste
Disposal Facilities,” press release, January 2011, http://www.ihs.gov/PublicAffairs/IHSBrochure/SafeWater.asp.
10 In addition to IHCIA, the Snyder Act of 1921 (P.L. 67-85, act of November 2, 1921, 42 Stat. 208, as amended; 25
U.S.C. 13) also authorizes Indian health programs.
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Medicare, Medicaid, and other third-party insurers for American Indians and Alaska Natives
receiving services at facilities operated by the IHS, an IT, or a TO. IHCIA gave IHS authority to
grant funding to UIOs to provide health care services to urban Indians, and established substance
abuse treatment programs, Indian health professions recruitment programs, and many other
programs. Prior to the ACA, IHCIA was last fully reauthorized by the Indian Health Amendments
of 1992,11 which extended authorizations of its appropriations through FY2000. In 2000, all
IHCIA authorizations of appropriations were extended through FY2001.12 Congress has
continued to appropriate funds for IHCIA programs since 2001.13 IHCIA reauthorization had been
under consideration in Congress since 1999.14
IHCIA Reauthorization in the ACA
ACA Title X, “Strengthening Quality, Affordable Health Care for All Americans,” in Subtitle B,
“Provisions Relating to Title II,” Part III, amends and enacts the “Indian Health Care
Improvement Reauthorization and Extension Act of 2009 (S. 1790),” as reported by the Senate
Committee on Indian Affairs on December 16, 2009.15 Title II, “Role of Public Programs,”
Subtitle K, “Protections for American Indians and Alaska Natives,” contains provisions related to
American Indians and Alaska Natives in SSA health benefit programs and in the private health
insurance exchange established by the ACA.16 In addition, other sections of the ACA include
changes related to private insurance that may affect American Indians and Alaska Natives. The
ACA reauthorizes IHCIA permanently and indefinitely; it appropriates such sums as may be
necessary for FY2010 and each fiscal year thereafter, to remain available until expended. The
ACA maintains IHCIA’s eight titles but amends and adds a number of sections to each of the
titles. Table 1 summarizes the changes that the ACA makes to IHCIA.
11 P.L. 102-573, act of October 29, 1992, 106 Stat. 4526.
12 Omnibus Indian Advancement Act, P.L. 106-568, §815, act of December 27, 2000, 114 Stat. 2868, 2918.
13 For a discussion of the relationship between appropriations and authorizations, see CRS Report RS20371, Overview
of the Authorization-Appropriations Process, by Bill Heniff Jr.
14 IHCIA reauthorization bills were introduced in the 106th (H.R. 3397 and S. 2526), 107th (S. 212 and H.R. 1662),
108th (S. 556 and H.R. 2440), 109th (H.R. 5312, S. 1057, S. 3524, and S. 4122), 110th (H.R. 1328, S. 1200, and S.
2532); and 111th (H.R. 2708 and S. 1790) Congresses.
15 This is S. 1790 in the 111th Congress.
16 More information about the private health insurance provisions in the ACA can be found CRS Report R42069,
Private Health Insurance Market Reforms in the Patient Protection and Affordable Care Act (ACA), by Annie L. Mach
and Bernadette Fernandez, and CRS Report R42663, Health Insurance Exchanges Under the Patient Protection and
Affordable Care Act (ACA), by Bernadette Fernandez and Annie L. Mach. In addition, the ACA contains other changes
that may affect American Indians and Alaska Natives, but these are not discussed in this report. For Medicare-related
changes, see CRS Report R41196, Medicare Provisions in the Patient Protection and Affordable Care Act (PPACA):
Summary and Timeline, coordinated by Patricia A. Davis. For information on Medicaid and Children’s Health
Insurance Program-related provisions, see CRS Report R41210, Medicaid and the State Children’s Health Insurance
Program (CHIP) Provisions in ACA: Summary and Timeline, by Evelyne P. Baumrucker et al. For public health,
workforce, and quality-related changes, see CRS Report R41278, Public Health, Workforce, Quality, and Related
Provisions in PPACA: Summary and Timeline, coordinated by C. Stephen Redhead and Erin D. Williams.
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Table 1. IHCIA Reauthorization Summary
IHCIA Title Name and Subject
ACA
Title I-Indian Health Manpower
Maintains title’s major sections; repeals section authorizing
appropriations for the title; expands use of community health aide
Authorizes workforce programs to increase the
workers at IHS-funded facilities; adds a new section funding a
supply of providers at IHS facilities
demonstration to address IHS health professional shortages; and
exempts employees at IHS-funded facilities from certain licensing,
registration requirements and related fees.
Title II-Health Services
Maintains title’s major sections; repeals section authorizing
appropriations for the title; amends authorization for two funds
Authorizes IHS health services, research, payments
(Indian Health Care Improvement Fund and Catastrophic Health
for service-related transportation, payment for
Emergency Fund); expands IHS authority for diabetes, cancer
services provided through contracts with outside
screening, and long-term care programs; and amends sections
providers (i.e., Contract Health Services (CHS))
related to the CHS program.
Title III-Health Facilities
Maintains title’s major sections; repeals section authorizing
appropriations for the title; amends IHS construction priority
Authorizes construction and renovation of IHS
system; and adds new sections requiring grants to build modular
facilities; sets procedures by which construction
and mobile facilities.
and renovation projects are selected
Title IV-Access to Health Services
Maintains title’s major sections; repeals section authorizing
appropriations for the title; adds the State Children’s Health
Authorizes IHS programs to bill Medicare,
Insurance Program to programs that IHS is authorized to bill; adds
Medicaid, and private insurance
new sections permitting ITs, TOs, and UIOs to purchase federal
employee health and life insurance benefits for their employees;
expands IHS collaboration with the Department of Veterans Affairs
and the Department of Defense.
Title V-Health Services for Urban Indians
Maintains title’s major sections; repeals section authorizing
appropriations for the title; expands grant opportunities available to
Authorizes grants to UIOs for health projects to
UIOs.
serve urban Indians
Title VI-Organization Improvements
Maintains title’s major sections; establishes that the IHS Director
should report directly to the HHS Secretary; adds new sections
Establishes IHS’s organizational position within
requiring (1) an Office of Direct Service Tribes; and (2) a plan to
HHS; the position of Director of IHS; and requires
create a new Nevada Area Office.
an automated management information system for
IHS record-keeping
Title VII-Behavioral Health Programs
Replaces IHCIA Title VII with new language authorizing new
comprehensive behavioral health and treatment programs. Includes
Authorizes programs related to behavioral health
a new subsection authorizing programs related to youth suicide
prevention and treatment
prevention.
Title VIII-Miscellaneous
Maintains title’s major sections; repeals section authorizing
appropriations for the title; adds new sections that, among other
Requires the IHS Director to submit a number of
things, establish (1) a prescription drugs monitoring program; (2) an
reports; establishes IHS eligibility for health
IHS Director of HIV/AIDS Prevention and Treatment; and (3) new
services; and defines California Indians, amongst
requirements for the IHS budget requests to reflect inflation and
other provisions
changes in the IHS service population.
Source: CRS analysis of P.L. 94-437, as amended (IHCIA), and P.L. 111-148 (ACA).
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Definitions17
The ACA defines a number of new Indian-related terms. Two of the new terms most frequently
used are Indian Health Program and Tribal Health Program. “Indian Health Program” (IHP) is
defined as (1) any health program administered by the IHS, (2) any Tribal Health Program, or (3)
any Indian tribe or tribal organization to which the Secretary provides funding under the Buy
Indian Act. “Tribal Health Program” (THP) is defined as any IT or TO operating any health
program, service, function, activity, or facility funded, in whole or part, by the IHS through, or
provided for in, a contract or compact with the IHS under the Indian Self-Determination and
Education Assistance Act (ISDEAA). In addition, the bill maintains a number of IHCIA-defined
terms.
Selected Major Changes to IHCIA in the ACA
Purposes and Findings: Adds a new finding that articulates that it is a major national goal of the
United States to provide resources, processes, and structure that will enable ITs and tribal
members to obtain the quantity and quality of health care services and opportunities that will
eradicate health disparities between Indians and the general population.
Appropriations: Consolidates authorizations of appropriations into a single provision, authorizes
such sums as may be necessary, and extends authorizations of appropriations indefinitely. In
addition, the ACA repeals the separate authorizations of appropriations that had been included at
the end of each IHCIA title or had been included in specific IHCIA sections.
Expanded Access to UIOs and TOs: Permits TOs and UIOs to apply for grant and contract
programs for which these entities were previously not eligible.
Behavioral Health Programs: Expands mental health services to create a comprehensive
behavioral health and treatment program. It includes programs related to youth suicide prevention
and increases IT and TO access to grants sponsored by the Substance Abuse and Mental Health
Services Administration (SAMHSA).
Payor of Last Resort: States that IHS is the payor of last resort for all services provided. Prior to
the ACA,18 IHS was the payor of last resort only for contract health services (CHS)—services that
IHS, ITs, or TOs may purchase, through contracts, from private providers in instances where the
IHP cannot provide the needed care.
Indians in SSA Programs: Extends Medicare payments to hospitals operated by IHS, ITs, or
TOs, and permits Indian entities to determine Medicaid and CHIP eligibility in order to facilitate
American Indian and Alaska Native enrollment in Medicaid and CHIP.
17 The ACA defines the term “Indian” in three different ways. The three definitions are discussed below in “ACA
Private Health Insurance Changes.”
18 Prior to the ACA, IHS was the payor of last resort only for contract health services (CHS) (See 42 C.F.R.136.61). In
general, Medicaid is considered the payor of last resort.
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Office of Direct Service Tribes: Requires that IHS establish an Office of Direct Service Tribes to
serve tribes that receive their health care and other services directly from IHS rather than through
facilities or programs operated by ITs or TOs.
Nevada Area Office: Requires a plan to establish a new area office to serve tribes in Nevada.
Demonstration Projects: Includes two facilities demonstration projects that will award funds for
IHS, ITs, or TOs to construct modular and mobile health facilities.
IHCIA Title I: Indian Health, Human Resources,
and Development
IHCIA Title I included provisions related to increasing the number of American Indians and
Alaska Natives entering the health professions in order to increase the supply of health
professionals available to facilities and programs operated by IHS, ITs, and TOs. The IHS has
high vacancy rates in many of its health professions—over 20% for physicians, and over 15% for
dentists and nurses, for instance, as of January 2010.19 IHCIA authorized a number of workforce
programs, including, for example, scholarship and loan repayment programs, to encourage health
professionals to work at facilities operated by the IHS or ITs; funding for continuing education
for IHS employees; funding for advanced training and for recruitment and retention for
individuals working at facilities operated by the IHS, an IT, a TO, or a UIO; training for nursing;
and programs to encourage American Indians and Alaska Natives to enter medicine. In addition,
Title I authorized two innovative health professions programs: the community health
representative (CHR) program, which permits the training of American Indians and Alaska
Natives to serve as paraprofessionals who provide health care, health promotion, and disease
prevention services at IHS facilities; and the community health aide program (CHAP), which
provides training for Alaska Natives to serve as health aides or community health practitioners.
The ACA maintains and reauthorizes a number of these health professions programs. It expands
the CHAP program to areas outside of Alaska, but excludes CHAP’s dental health aide therapist
program in Alaska from states outside of Alaska unless an IT or a TO, in a state authorizing such
a program, elects to include it. The ACA also includes additional requirements for the Secretary
to facilitate the implementation of the CHAP dental health aide program by ITs and TOs and
prohibits the Secretary from filling IHS program vacancies for certified dentists with dental
health aide therapists.
IHCIA Title II: Health Services
IHCIA Title II authorized a number of specific health programs and activities, including mental
health programs, prevention activities, diabetes and tuberculosis programs, Indian women’s
health, Indian school health education programs, epidemiological centers, and a fund for the
elimination of backlogs and deficiencies among Indian health programs (called the Indian Health
Care Improvement Fund (IHCIF)), and other programs. The title also included provisions relating
19 U.S. Department of Health and Human Services, Indian Health Service, “IHS Fact Sheets: Workforce,” January
2010, http://www.ihs.gov/PublicAffairs/IHSBrochure/Workforce.asp.
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to CHS delivery areas in several states.20 CHS services are limited to American Indians and
Alaska Natives living in defined geographic areas called CHS delivery areas.
The ACA reauthorizes the IHCIF as well as the Catastrophic Health Emergency Fund (which
provides extra funding to facilities with extraordinary medical costs because of disasters and
catastrophic illnesses). It expands the range of health promotion and disease prevention activities
required to be provided, and includes new authorizations for hospice care, assisted living, long-
term care, and home- and community-based services for disabled elderly persons. Title II also
includes sections related to the Indians into Psychology Program, the Indian youth grant program,
epidemiology centers, prevention and control of communicable and infectious diseases,
requirements for prompt IHS payments to CHS providers, and timely notification to providers
that CHS patients are exempt from payment for CHS services.
The ACA also requires the Secretary to maintain any existing or future model diabetes projects,
and requires recurring funding for THPs’ model diabetes projects.
IHCIA Title III: Facilities
IHCIA Title III includes provisions related to health care and sanitation facilities. IHS funds the
construction, equipping, and maintenance of hospitals, health centers, clinics, and other health
care delivery facilities for facilities operated by IHS and tribes. IHS also funds the construction of
sanitation facilities, including water-supply and sewage facilities and solid waste disposal
systems, and provides technical assistance for the operation and maintenance of such facilities.
IHCIA required the Secretary to ensure that pay rates on such facility construction or renovation
projects, if funded under IHCIA Title III, must not fall below the prevailing local wage rates, as
determined in accordance with the Davis-Bacon Act.21
The ACA maintains current pay rate requirements; it requires the development of a priority
system for construction of Indian health care facilities, with a methodology to be reported to
Congress, and with priority lists for the 10 highest-priority facilities in five categories of facilities
(inpatient, outpatient, specialized facilities, staff quarters, and facility-related hostels). The
priority system also permits new facilities to be nominated at least every three years, but protects
the priority of facilities at the top of the current lists for construction. The law also requires
consultation with ITs and TOs to develop innovative approaches to solving unmet healthcare
facility needs, and includes an “area distribution fund” as an option for such innovation. Under
the concept of an area distribution fund, each IHS area would receive at least some health
facilities construction funding, which was not the case prior to IHCIA reauthorization.
The ACA creates a facilities needs assessment workgroup and a facilities appropriations advisory
board in IHS. It maintains authorization for construction of sanitation and water-supply facilities,
requires reports to Congress on the priority system for such facilities, authorizes the Secretary to
20 These states are Arizona, California, North Dakota, and South Dakota.
21 Act of March 3, 1931, chap. 411, 71st Cong., 46 Stat. 1494, as amended; 40 U.S.C., Chap. 31, Subchap. IV. The
Davis-Bacon Act requires that employers pay prevailing wage rates, as determined by the Secretary of Labor, on
federal construction projects. For more information, see CRS Report R41469, Davis-Bacon Prevailing Wages and State
Revolving Loan Programs Under the Clean Water Act and the Safe Drinking Water Act, by Gerald Mayer and Jon O.
Shimabukuro.
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accept major renovations or modernizations of Indian health facilities carried out by ITs, and
requires grants to ITs and TOs for construction or upgrading of small ambulatory care facilities.
The ACA also includes a new provision that authorizes the Secretary to accept funding from any
other source for facilities construction. It explicitly authorizes other federal agencies to transfer
funds, equipment, or supplies to the Secretary for facilities construction and related activities,
makes sanitation as well as health care facilities eligible, requires the Secretary to establish health
and sanitation facility construction standards by regulation, and specifies that the Secretary’s
receipt of funds from other sources would not affect priorities established under Section 301 of
IHCIA Title III. In addition, the ACA authorizes a new demonstration grant program for modular
component health care facilities in Indian communities, and a new demonstration program for
mobile health stations for providing specialty health care services.
IHCIA Title IV: Access to Health Services
IHCIA Title IV contained sections related to billing, and enrollment in, the Medicare and
Medicaid programs operated by the Centers for Medicare and Medicaid Services (CMS);22 a
section authorizing appropriations; and a section that authorized emergency CHS services. The
title’s authorization for IHS health care facilities to receive reimbursements from the Medicare
and Medicaid program was a major component of the original IHCIA passed in 1976. Prior to the
ACA, IHCIA did not mention funds received under the State Children’s Health Insurance (CHIP)
program because the program was enacted after IHCIA was last reauthorized.23
Title IV contained provisions related to billing and receiving reimbursements from the Medicare
and Medicaid programs. Specifically, IHCIA (1) authorized a demonstration project that permits
ITs or TOs operating under ISDEAA contracts or compacts to directly bill CMS for Medicare and
Medicaid payments; (2) required direct billing reimbursements be placed into a “special fund”
that must be used first to achieve compliance with Medicare and Medicaid requirements and then,
if excess funds exist, to improve health services available to the population the facility serves; (3)
specified the auditing and other requirements related to direct billing; and (4) required that the
federal government pay 100% of the cost of all Medicaid services billed.24 In addition, IHCIA
required that reimbursements from Medicare or Medicaid may not be considered when
determining annual Indian health appropriations, required the Secretary to submit a report
accounting for Medicare and Medicaid funds reimbursed to IHS, and required the Secretary to
make grants to ITs or TOs to facilitate enrollment in Medicare and Medicaid.
The ACA maintains SSA health benefit reimbursement requirements, but adds reimbursements
received from the CHIP program to these requirements. For example, reimbursements received
from CHIP are included in the requirement that reimbursements from SSA health benefit
programs not be taken into account when determining IHS appropriations. The ACA also expands
and makes permanent the prior demonstration project that permitted ITs or TOs operating under
22 CMS programs are also referred to herein as SSA health benefits programs.
23 See CRS Report R40444, State Children’s Health Insurance Program (CHIP): A Brief Overview, by Elicia J. Herz
and Evelyne P. Baumrucker.
24 In general, Medicaid is a shared federal and state program in which the state government pays a share of Medicaid
expenses based on a formula where the federal share is inversely proportional to the state’s per capita income (i.e.,
states with lower per capita income receive a greater percentage of Medicaid payments from the federal government).
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ISDEAA contracts or compacts to directly bill CMS for Medicare and Medicaid payments and
excludes such direct billing reimbursements from the special fund. The ACA also includes grants
for outreach and enrollment into SSA health benefit programs and maintains and expands current
authorization to recover reimbursements from third-party entities and to credit such
reimbursements to the facility that provided the services. In addition, the ACA authorizes ITs,
TOs, and UIOs to use SSA health benefit funds and ISDEAA funds to purchase health care
coverage and permits ITs, TOs, and UIOs to purchase Federal Employee Health Benefits and
Federal Employee Group Life Insurance coverage for their employees. The ACA requires that
federal health care programs accept an entity operated by the IHS, an IT, a TO, or a UIO as a
provider eligible to receive payments, on the same basis as other qualified providers, if it meets
the applicable licensure requirements for its provider type, regardless of whether the facility
obtains the applicable license. The ACA also applies this licensing requirement to providers
working at Indian entities, and prohibits providers and entities that are excluded from receiving
reimbursements from other federal programs from receiving reimbursements from Indian entities.
The ACA expands IHS’s relationship with the Department of Veterans Affairs (VA) and the
Department of Defense (DOD) by authorizing increased coordination to treat Indian veterans.25 In
addition, the ACA requires the Secretary to conduct a study to determine the feasibility of treating
the Navajo Nation as a state for Medicaid purposes, for Indians living within the Navajo Nation’s
boundaries.26
IHCIA Title V: Health Services for Urban Indians
IHCIA Title V directed the HHS Secretary to make contracts with or grants to UIOs for health
projects to serve urban Indians, and set requirements for the contracts and grants. Such grants or
contracts are under the authority of the Snyder Act,27 not the ISDEAA. The purpose of Title V
programs is to make health services more accessible and available to urban Indians. Urban Indian
Health Projects (UIHPs) may serve a wider range of eligible persons than the general IHS health
care programs, including not only members of federally recognized tribes but also members of
terminated28 or state-recognized tribes, as well as their children and grandchildren.
Currently there are 34 UIHPs operating at 41 locations, with different programs offering different
services, such as ambulatory health care, health promotion and education, immunizations, case
management, child abuse prevention and treatment, and behavioral health services.29 Besides IHS
grants and contracts, UIHPs receive funding from state and private sources, patient fees,30
Medicaid, Medicare, and other non-IHS federal programs.31
25 A memorandum of understanding between IHS and the VA was signed on October 1, 2010; see http://www.ihs.gov/
announcements/documents/3-OD-11-0006.pdf.
26 The Navajo reservation is located in parts of Arizona, Utah, and New Mexico.
27 The Snyder Act of 1921 (P.L. 67-85, act of November 2, 1921, 42 Stat. 208, as amended; 25 U.S.C. 13) provides
general authorization for Indian health programs. The Snyder Act is a permanent, indefinite authorization for federal
Indian programs, including for “conservation of health.”
28 “Terminated” tribes are tribes whose federal recognition was withdrawn by statute.
29 U.S. Department of Health and Human Services, Indian Health Service, Indian Health Service: Fiscal Year 2012
Justification of Estimates for Appropriations Committees (Rockville, MD: HHS, 2012), http://www.ihs.gov/
NonMedicalPrograms/BudgetFormulation/documents/FY%202012%20Budget%20Justification.pdf
30 IHS is forbidden to bill or charge Indians (see 25 U.S.C. 1681 and 25 USC 458aaa-14), but IHCIA, Title V does not
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The ACA enables UIOs to expand their urban Indian health programs by permitting UIOs to
establish a UIHP in urban centers other than where the UIO is located; prior to the ACA UIOs
could only establish UIHPs in the urban area where the UIO was based. In addition, the ACA
provides UIOs access to goods and services purchased through federal prime vendors, by
deeming UIOs with Title V contracts or grants to be federal executive agencies under the section
of the Federal Property and Administrative Services Act of 197432 concerning federal sources of
supply. It also authorizes the Secretary to donate excess or surplus property to such UIOs and to
permit the UIOs to use HHS facilities. The ACA also expands to UIOs the authorization for a
number of programs currently only at IHS, IT, or TO facilities. For example, the ACA authorizes
UIOs to employ Community Health Representatives (CHRs) trained under the CHR program
authorized under current IHCIA Title I, and authorizes the Secretary to establish programs for
UIOs that are identical to IHS programs for prevention of communicable diseases, for behavioral
health prevention and treatment, and for youth multi-drug abuse prevention and treatment. The
ACA also authorizes grants to UIOs for the development and implementation of health
information technology, telemedicine, and related infrastructure.
IHCIA Title VI: Organizational Improvements
IHCIA Title VI established IHS as part of the Public Health Service (PHS) within HHS, and is
administered by a Director who reports to the HHS Assistant Secretary for Health. IHCIA Title VI
also required the Secretary to establish an automated management information system for IHS
and IHPs, with a patient privacy component, and requires that patients have access to their own
IHS records.
The ACA maintains the placement of IHS in PHS, but directs the head of IHS to report directly to
the HHS Secretary. It also maintains requirements regarding the automated management
information system. The ACA also adds two new requirements: the Secretary must establish an
IHS Office of Direct Service Tribes (for tribes served directly by IHS instead of under ISDEAA),
and the Secretary must submit to Congress a plan to create a new Nevada Area Office (Nevada is
currently within the Phoenix Area Office).
IHCIA Title VII: Behavioral Health Programs
IHCIA Title VII authorized alcohol and substance abuse programs, including grant and contract
programs to provide comprehensive alcohol and substance abuse prevention and treatment
services. It required coordination with the Department of the Interior to assess the need for such
services and to provide community education in alcohol and substance abuse; requires services to
specified groups including women and youth; and authorizes training and community education
programs, demonstration projects to establish substance abuse counseling education curricula at
tribally operated community colleges, and grants for preventing, treating, and diagnosing fetal
(...continued)
prohibit UIHPs from charging their patients.
31 IHS, Office of Urban Indian Health Programs, Urban Indian Health Program Statistics, FY2005 (Rockville, MD:
October 16, 2007), p. 4.
32 §201(a), P.L. 81-152, act of June 30, 1949, 63 Stat. 377, 383, as amended; 40 U.S.C. 501.
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alcohol syndrome (FAS) and fetal alcohol effects. In addition, Title VII included authorization for
substance abuse treatment projects in specified locations in New Mexico, Arizona, and Alaska.
The ACA replaces current IHCIA Title VII with new language that authorizes programs to create
a “comprehensive behavioral health prevention and treatment program” providing a “continuum
of behavioral health care.” For example, the ACA includes programs related to behavioral health
prevention and treatment; provisions related to training and licensure requirements for the
behavioral health workforce serving at facilities operated by IHS, ITs, or TOs; specific programs
to treat Indian women and youth; and programs to treat and prevent child sexual abuse and fetal
alcohol disorder. Many of these programs are similar to those that were authorized in IHCIA Title
VII. The ACA also includes a new program to award grants to ITs and TOs to carry out
demonstration projects using telehealth technology to provide youth suicide prevention and
treatment services and authorizes appropriations of $1.5 million for each of FY2010-FY2013 for
the new program. In addition, the ACA includes authorization for programs to prevent and treat
domestic and sexual violence, and includes a number of requirements for the Secretary to
facilitate ITs’ and TOs’ applying for, and inclusion in, grants from SAMHSA. It also requires the
Secretary to carry out activities to increase the use of pre-doctoral psychology and psychiatry
interns in order to increase access to mental health services, and authorizes the Secretary to
establish a demonstration program through SAMSHA to test a culturally appropriate life skills
curriculum to prevent suicide in American Indian and Alaska Native adolescents. The ACA also
authorizes an appropriation of $1 million for each of FY2010-FY2014 for the Secretary to
establish a grant program to award grants to ITs, TOs, or other entities to establish life skills
curriculums to prevent suicide in schools located in high suicide areas that serve Indian children.
IHCIA Title VIII: Miscellaneous
IHCIA Title VIII included a number of separate provisions covering reports, regulations, an
IHCIA implementation plan, abortion, eligibility for IHS services, service unit funding
reductions, and a variety of other topics.
The ACA maintains a number of IHCIA requirements including those requiring reports,
regulations, an IHCIA implementation plan, and those defining individuals eligible for IHS
services. The ACA extends the prior IHCIA limitation on the use of federal funds for abortions to
IHS, and applies restrictions contained in other federal laws to IHS appropriations. The ACA also
makes IHP and UIO medical quality assurance records confidential, and adds several new
required reports. The ACA requires a new report on disease and injury prevention, and two new
Government Accountability Office reports: (1) on the coordination of Indian health care services
provided through IHS, Medicare, Medicaid, or CHIP, or with tribal, state, or local funds; and (2)
on the CHS program, including CHS payments to providers (since CHS providers still experience
late payments).33
The ACA also requires that IHS budget requests reflect inflation and changes in the IHS service
population, and requires the establishment of a prescription drug monitoring program at IHP and
UIO facilities. The ACA also permits a tribe operating an IHS health program through an
33 GAO released a report covering CHS payment issues, see U.S. Government Accountability Office, Indian Health
Service: Increased Oversight Needed to Ensure Accuracy of Data Used for Estimating Contract Health Service Need,
GAO-11-767, September 23, 2011.
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ISDEAA self-governance compact to charge Indians for services; adds language stating that the
United States has no liability for injury or death resulting from traditional health care practices;
and establishes an IHS Director of HIV/AIDS Prevention and Treatment.
Native Hawaiian Health Care Reauthorization
The ACA also includes the reauthorization of the Native Hawaiian Health Care Act of 1988,34
which authorizes health education, health promotion, disease prevention services, and health
professions scholarship programs for Native Hawaiians.35 It extends the act’s authorizations of
appropriations through FY2019, permits a specified school in Hawaii to offer educational
programs to Native Hawaiians first, and amends a definition in the act.36
ACA Private Health Insurance Changes
The ACA makes significant changes to private health insurance coverage that may affect certain
American Indians and Alaska Natives. The ACA includes a requirement for individuals, with
certain exceptions, to obtain health insurance or be subject to a financial penalty (i.e., the
individual mandate). It also expands Medicaid coverage to those who had previously been
ineligible and establishes health insurance exchanges to provide eligible individuals and
employers with access to purchase private health insurance plans with standardized benefits.37
With respect to benefits and penalties, these provisions use several different statutory definitions
of “Indian”; however, these definitions define the same groups as “Indian” (see text box for
definitions and their uses). Regarding the requirement to maintain insurance coverage, Section
1501 exempts members of Indian tribes (as defined in the Internal Revenue Code [IRC]) from
any penalty associated with a failure to comply with the individual mandate,38 and Section
1411(b)(5)(A) requires an “Indian” (not defined) who is seeking an exemption from the
individual mandate to provide the Secretary of HHS with certain documentation that
demonstrates his or her eligibility for this exemption. Regarding private insurance benefits,
Section 1311(c)(6)(d) requires a special enrollment period for American Indians and Alaska
Natives, as defined in IHCIA, who are seeking to enroll in private health insurance plans offered
under through the ACA-created health insurance exchange. Section 1402(d) exempts American
Indians and Alaska Natives who meet the definition of “Indian” in ISDEAA and whose income is
not more than 300% of the federal poverty level from cost-sharing requirements if they are
enrolled in a private health insurance plan offered through the exchange. Finally, Section 9021
34 P.L. 100-579, act of October 31, 1988, 102 Stat. 2916, as amended; 42 U.S.C., Chap 122 (§11701 et seq.).
35 This program receives appropriations through the federal health center program. For more information, see
http://bphc.hrsa.gov/about/specialpopulations.htm. CRS Report R41664, ACA: A Brief Overview of the Law,
Implementation, and Legal Challenges, coordinated by C. Stephen Redhead.
36 For details, see The Indian Health Care Improvement Act Reauthorization and Extension Act of 2009 as Enacted by
PPACA: Detailed Summary and Timeline by Elayne J. Heisler.
37 CRS Report R41664, ACA: A Brief Overview of the Law, Implementation, and Legal Challenges, coordinated by C.
Stephen Redhead.
38 CRS Report R41331, Individual Mandate and Related Information Requirements under ACA, by Janemarie Mulvey
and Hinda Chaikind.
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uses the IRC definition of Indian to exclude the value of Indian tribe health benefits from
calculations of gross income for tax purposes.39
The Three Definitions of Indians in the ACA
Indian Health Care Improvement Act (IHCIA) definition: IHCIA defines “Indian(s)” as “any person who is
a member of an Indian tribe. IHCIA defines the term “Indian tribe” to mean “…any Indian tribe, band, nation, or
other organized group or community, including any Alaska Native village or group or regional or village
corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), which
is recognized as eligible for the special programs and services provided by the United States to Indians because of
their status as Indians.” ACA Usage: All of the IHCIA reauthorization (Title X) and Section 1311, which
established a special enrollment period for Indians to enroll in private health insurance plans offered through the
exchange.
Indian Self Determination and Education Assistance Act (ISDEAA) definition: ISDEAA defines an
“Indian” “as a person who is a member of an Indian tribe.” ISDEAA defines “Indian tribes” as “…any Indian tribe,
band, nation, or other organized group or community, including any Alaska Native village or regional or village
corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43
U.S.C. 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.” ACA Usage: Exempts Indians from cost sharing if they are
enrolled in a plan offered through the private health insurance exchange.
Internal Revenue Code (IRC) definition: The term “Indian tribe” means any Indian tribe, band, nation, pueblo,
or other organized group or community, including any Alaska Native village, or regional or village corporation, as
defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) which is
recognized as eligible for the special programs and services provided by the United States to Indians because of
their status as Indians. ACA Usage: Exempts Indians from penalties associated with the failure to comply with the
requirement to have health insurance coverage (i.e., the individual mandate) and permits individuals who receive
private health insurance through a plan offered by a tribe to exclude the value of private health insurance benefits
received from their calculation of gross income for tax purposes.
Source: CRS analysis of P.L. 94-437 as amended; P.L. 93-638 as amended, IRC §45(A)(c)(6), and P.L. 111-148 as
amended.
SSA Health Benefit Improvements for Indians
The ACA amends the SSA to define a number of Indian terms as they are defined in IHCIA
Section 4. These terms include IHS, IT, TOs, UIOs, IHPs, and THPs. These definitions apply for
Medicare, Medicaid, and CHIP and general provisions included in SSA Title XI.
The ACA includes amendments to the SSA, although these amendments are not included in the
“Indian Health Care Improvement” part of the law. Rather, amendments to the SSA are included
in Title II, Subtitle K, “Protections for American Indians and Alaska Natives.” This subtitle does
the following: (1) it designates facilities operated by IHS, an IT, a TO, or a UIO as the payor of
last resort notwithstanding federal or state law to the contrary;40 (2) it includes IHS, ITs, and TOs
39 Section 9021 excludes the following health benefits from calculations of gross income: (1) health services or benefits
provided or purchased by IHS, an IT, or a TO or through programs of third parties funded by the IHS; (2) medical care
services, including those provided, purchased, or reimbursed by an IT or TO or to a member of an IT and the member’s
spouse or dependents; (3) accident or health plan coverage (or an arrangement having the same effect) provided by an
IT or TO for medical care to a member of an IT and the member’s spouse or dependents; and (4) any other medical
care provided by an IT that supplements, replaces, or substitutes for the programs and services provided by the federal
government to IT or tribal members.
40 Prior to the ACA, IHS was the payor of last resort only for contract health services (CHS) (See 42 C.F.R.136.61). In
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as entities that are permitted to determine Medicaid and CHIP eligibility; (3) it prohibits cost
sharing for Indians whose incomes are at or below 300% of the federal poverty level and who are
enrolled in a qualified health benefit plan in the individual market through the exchange (as
established by the ACA),41 and (4) it extends the period for which IHS, IT, and TO services are
reimbursed by Medicare Part B for all services, indefinitely, beginning January 1, 2010. Prior to
the ACA, authority for these facilities to receive Medicare Part B reimbursements for certain
specified services had expired on January 1, 2010. In addition, the ACA, in Title III, amended the
Medicare Part D program to permit costs paid by IHS for prescription drugs for Medicare Part D
beneficiaries to count toward the beneficiaries’ out-of-pocket threshold for catastrophic
protection. In order for a Part D beneficiary to receive catastrophic protection, a certain level of
out-of-pocket costs must be incurred; prior to the ACA, expenses incurred by IHS, on behalf of a
Part D beneficiary, did not count toward this threshold.42
Author Contact Information
Elayne J. Heisler
Analyst in Health Services
eheisler@crs.loc.gov, 7-4453
Acknowledgments
Roger Walke, former CRS Specialist in American Indian Policy, co-authored an earlier version of this
report.
(...continued)
general, Medicaid is considered the payor of last resort.
41 This applies to private insurance coverage and is also discussed above; see “ACA Private Health Insurance
Changes.”
42 See Section 3114 in CRS Report R41196, Medicare Provisions in the Patient Protection and Affordable Care Act
(PPACA): Summary and Timeline, coordinated by Patricia A. Davis.
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