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GENERAL MEMORANDUM 11-025

GENERAL MEMORANDUM 11-025
Rep. Cole Introduces Bill Substantially Similar to IHCIA Amendments Enacted in 2010

On February 8, 2011, Representative Tom Cole (R-OK) introduced HR 536, a bill nearly identical to the Indian Health Care Improvement Act Amendments (IHCIA) enacted as a component of the Patient Protection and Affordable Care Act (ACA) in March 2010. Although Representative Cole issued no floor statement or press release regarding the bill, presumably this introduction is an effort to preserve the 2010 IHCIA amendments in the event the ACA is repealed.

In a January 19, 2011, vote, the House of Representatives passed an ACA repeal bill by a 254-189 margin, largely along party lines. Representative Cole voted in favor of the repeal, as did the three co-sponsors of HR 536 – Representatives Duncan (R- NC); Foxx
(R-NC); and Smith (R-NE). An attempt to approve the ACA repeal bill in the Senate failed.

Sec. 10221 of the ACA enacted S 1790, an 111th Congress bill reported by the Senate Committee on Indian Affairs in December 2009. The text of S 1790 was not recited in the ACA; rather, S 1790 was enacted by reference. All amendments made by Sec. 10221 became effective on the date of enactment of the ACA – March 23, 2010. The Indian Health Service and other relevant agencies have been implementing the IHCIA amendments over the past year.

Provisions included in HR 536. Representative Cole's bill includes all the revisions made to the IHCIA by the ACA, including permanent reauthorization of the Indian health law. In addition, HR 536 includes the text of two Indian-specific provisions that appeared in other sections of the ACA:

  • An amendment to the Medicare law to give IHS and tribal health programs permanent authority to collect reimbursements for all Medicare Part B services by removing the "sunset" date that had applied to authority to collect for some Part B services. Like the ACA, HR 536 makes the amendment retroactive to January 1, 2010. (ACA Sec. 2902)
  • An amendment to the Medicare Part D prescription drug program to count the value of Rx drugs dispensed by IHS, tribal, and urban Indian organization (I/T/U) pharmacies as "true-out-of-pocket-costs" ("TrOOP") incurred by a Part D enrollee. This corrects a problem with the prior law by making it possible for an Indian served by an I/T/U pharmacy to eventually qualify for the Part D catastrophic coverage level if the individual meets the TrOOP requirement for such coverage. (ACA Sec. 3314)

The Cole bill contains two abortion provisions – the one already enacted by Sec. 10221 of the ACA, and a second provision which is included in the part of the bill identified as amendments to other acts. This new provision reads:
SEC. 203. PROHIBITION OF USE OF FEDERAL FUNDS FOR ABORTION.
No funds authorized or appropriated by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of rape or incest.

Indian provisions not included in HR 536. The ACA contains other beneficial Indian provisions that do not appear in HR 536. These include:

  • The Indian-specific elements of the health insurance Exchanges, and the Indian exemption from penalties for non-compliance with the Individual Mandate which requires all Americans to acquire some form of health insurance.
  • The amendment to the Internal Revenue Code (IRS) that excludes from an individual tribal member's gross income the value of health benefits provided by a tribe or the IHS. This provision was enacted to overcome the efforts of the IRS to tax the value of tribally-purchased benefits.
  • The designation of IHS, tribes, tribal organizations and urban Indian organizations as "express lane agencies" who, at the request of a state, can make Medicaid and CHIP eligibility determinations.
  • The provision that makes I/T/U programs the payer of last resort for persons eligible for services through I/T/U programs. IHS has a long-standing regulation which makes IHS and tribal programs the payer of last resort in order to maximize all other collection opportunities.
  • The new Maternal, Infant and Childhood Home Visitation Program to fund visits in communities at risk of poor maternal and child health. This ACA program carries a three percent Indian set-aside.

Bill Referral. As has been customary for IHCIA bills, HR 536 was referred primarily to the Natural Resources Committee, with subsequent referral to the Energy & Commerce and Ways & Means Committees, as some provisions are under the jurisdiction of these panels. In addition, the Cole bill also calls for subsequent referral to the Budget Committee, possibly due to a requirement in the House rules. No action has been scheduled by any committee.

Please let us know if we may provide additional information regarding HR 536.

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Inquires may be directed to:
Carol Barbero (cbarbero@hobbsstraus.com)

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