Message from Face Rock Enterprises

Posted by Margaret Knight on 06/26/2020
Under the Indian Self-Determination and Education Assistance Act (ISDEAA), the federal government supplies funding to a tribal organization, allowing [the Tribe] to plan, conduct and administer a program or service that the federal government otherwise would have provided directly. Under the Indian Health Care Improvement Act at 25 U.S.C § 1601 the Tribe must have the goal to improve quantity and quality of health services to increase the overall health of Tribal Members to maximize Indian Health Services (IHS) appropriations in order to raise the health status of Tribal Members.  Additionally, the Tribe is able to supplement IHS funds with Tribal dollars for PRC services
 
Under PPACA, at 25 U.S.C § 1623(b), and under the CHS Regulations, at 42 CFR § 136.61(a), the Tribe becomes the payor of last resort for claims incurred by a Purchased and Referred Care eligible member/employee (Member of a Federally Recognized Tribe).  This was challenged in Rancheria v. Hargan, 296 F. Supp. 3d 256 (D.D.C. 2017).  The Federal Court ruled in favor of Redding Rancheria, citing the Tribally sponsored plans would be considered the payor of last resort, even with regards to federal or state sponsored plans with rights of the Tribe to determine how these rights are used. The decision also confirms that ambiguity in the Indian Health Care Improvement Act must be read in favor of tribes, citing the cannons of construction.  This case has not been negatively treated on appeal or overruled.  It has been cited numerous times in other cases.  Basically, the case stands. 
 
CMS has a special relationship with the Tribes. The Tribe may enroll eligible employees or members of a Federally Recognized Tribe in a premium sponsorship program.  Programs include Medicare Part A, B, C, or D, ACA, and /or any other commercial plan.  It is questionable whether this practice would be allowed for non-Tribal members.  There certainly would be no reimbursement for premium sponsorship from Indian Health Services (IHS) for non-Natives.   Legal debates on both sides exist on whether Tribes can require non-Native employees to enroll in Tribally sponsored (premium paid plans); however, this is not what is being pursued.  Currently, Tribes are seeking to enroll Native members only, which is not debatable (Rancheria, 2017).   
 
Nationwide, Tribes have been enrolling both employees and members of Federally Recognized Tribes for years.  All other coverage would be primary including coverage under a spouse’s health plan, coverage under Medicare, and coverage under Medicaid
 
The Payor of Last Resort allows Tribes to be the last payer for health claims incurred by a Purchased and Referred Care eligible Tribal Member where the Tribe is funding the claim payment (not fully insured insurance plans). This applies to Tribally operated health programs that are funded in part by IHS under the Self-Determination and Education Assistance Act (P.L. 93-638) and to Tribal-funded self-insurance programs established in part to supplement Purchased and Referred Care (PRC).
 
For questions email:
Karen Knight