Jemez Pueblo Position Paper March 20th edition

Tribal Consultation

New Mexico Human Services Department (HSD)

March 20, 2012

Indian Pueblo Cultural Center

The Pueblo of Jemez opposes the NM Medicaid modernization plans as detailed in the Centennial Care concept paper, issued February 21, 2012.

The Centennial Care concept paper is presented under the guise of “ensuring care of New Mexicans for the next 100 years, but its resultant product is to reduce costs by limiting medical services and care coordination to all New Mexicans. Specific to Native Americans, those same limitations are imposed, along with a direct threat by the state to tribal sovereignty and authority. This assessment is based on the following:

1.       Threat to Tribal Sovereignty and Authority

PART I: P.L. 93-638 law authorizes tribal nations to contract their shares of health care funds that would have been spent by the IHS on their individual tribal membership. This law authorizes individual tribal nations to then determine and design the best health care system for that tribal population. Most tribes use a series of surveys, health data and expenditure analysis, prevalence data and a number of other health measures to determine the shape and scope of their tribal health system, for which the tribe then conducts financial planning. A part of that financial planning includes 3^rd party revenue collection.

NM HSD’s Centennial Care concept paper poses a direct threat to the intent of PL 93-638 and tribal sovereignty in the following ways:

·         The State describes a fully MCO run Medicaid system for the state. Although there is a recommendation in the Native Americans section that the MCOs selected by the state be required “to contract with the IHS and or 638 clinics as part of their network…” (27), there is no indication as to the timeframe or the scope of the relationship. Thus, there is no confidence that the tribal health clinics will immediately be made an integral part of the health care of our Medicaid eligible tribal members.

·         The Centennial Care paper indicates that when a Medicaid eligible individual applies for Medicaid, he/she must select a health plan (MCO). This means that the individual automatically goes into the MCO “system” because fee for service, which is the practice utilized by tribal health clinics, will no longer be an option.

·         The MCO’s will stratify our Medicaid eligible population and conduct care coordination through the MCO’s designated system. Following the state’s plan, our patients, in the interim while the MCO is attempting to develop effective tribal contracts and coordination, will be taken out of our tribal system.

·         The Centennial Care paper describes the state’s intent to eliminate the “opt-out” provision for tribes, similar to what has occurred with other MCO’s in the state (CoLTS). Under this scenario, the tribe cannot proceed with its own determined care coordination on behalf of the patient, but must stick with the MCO directed care.

PART II: In 2000, the Indian Health Care Improvement Act was amended to include Public Law 106–417, also called the ‘‘Alaska Native and American Indian Direct Reimbursement Act of 2000’’. This act allows for direct billing of medicare, medicaid, and other third party payors, and to expand the eligibility under such program to tribes and tribal organizations. The ACA of 2010 contained the reauthorization of the Indian Health Care Improvement Act (IHCIA), not only confirming, but also expanding tribal authority to plan and design tribal health systems and to direct bill CMS for reimbursement.

·         Under the state plan, the selected MCO’s will stratify our Medicaid eligible population and conduct care coordination from there through the MCO’s designated system.

·         Based on the description, it is a very real concern that Indian health programs could find themselves without an ability to collect from any source for services rendered at tribal health clinics for Medicaid eligible patients.

·         This would leave the Indian health programs with not only a loss of potential new revenues, but also an actual reduction in revenues from prior levels (where such claims had previously been paid by Medicaid).

·         Medicaid makes up approximately 70% of our annual 3^rd party revenue.

·         The Pueblo of Jemez uses Medicaid as a 3^rd party resource to supplement the cost of care for our patients through our tribally designed health system.

·         The loss or reduction of this significant resource would negatively affect our tribal health care delivery system either by preventing us from maintaining current service level, which is partially supported by Medicaid reimbursements, or by preventing us from expanding our billable service delivery.

·         Such an outcome would be directly counter to the Congressional intent in enacting IHCIA and Public Law 106–417: Alaska Native and American Indian Direct Reimbursement Act of 2000 (Exhibit A).

·         Even if a tribe were immediately brought into the MCO via contract, it has been the experience of tribes working with MCO’s in the state that new MCO’s do not pay in a timely manner in the general in the first year of business.

·         The state’s plans for a “proliferation of patient centered medical and health homes” (pg. 14) would bring tribes into the care coordination system, but are considered long range plans. The Centennial Paper describes the MCO’s as being initially responsible for basic care coordination and health homes being developed over the next several years.

2.       The state’s plan is culturally inappropriate to the Native American population of this state.

·         Tribal health clinics already offer a “health home” to our tribal members.

·         Under the state model, care coordination would begin through an initial phone interview with an MCO employee. This is concerning primarily because technology assessment of the state indicate that the population with the least amount of telephone access are rural New Mexicans, specifically Native Americans.

·         Clients will go through a “stratification of risk”, which the Centennial Care paper indicates will be based on “evidence based, best practices”. Tribal data concerning standards of care and improved health outcomes are not included as part of the MCO consideration, though they are part of the tribe’s consideration for care coordination.

·         Further, the state’s plan indicates that after the initial phone interview, the client will then be assigned a “risk group care coordinator” who will complete a comprehensive assessment. Based on the description of the need to interview family members and care givers, this interview will require a face to face visit.

·         Many of our tribal communities use English as a second language. Communicating health concerns, discussing medical terminology, diagnosis, treatments plans and family dynamics is most effectively done by our tribal clinic based benefits coordinators, not the MCO.

·         This is an area that current MCOs have struggled with and which will simply not be attainable under the proposed MCO run Medicaid model.

·         In fact, our tribal benefits coordinators are providing the intensive care coordination for the existing MCOs in the state for our tribal members.

·         Finally, at the point the MCOs shift the care coordination responsibility to the health home site, the Centennial Care paper does not indicate if and how the MCOs will be required to properly reimburse the tribes for that care coordination service. It appears that moving forward, as it occurs with current MCO relationships, the percentage of the capitation rate that the MCO’s receive for care coordination will not be passed on the entity actually conducting that coordination.

3.       The Pueblo of Jemez offers both State and Tribal remedies:

·         State Remedies

                                                               i.      Mini-Grants: The Centennial Care paper describes that the state will establish two pilot site projects. One is to develop health homes in pilot sites in Albuquerque, and the other is related to developing bundled rates for hospital stays. This urban location of the first pilot project is out of touch with NM, which is primarily rural.

By the January 2014, the Pueblo of Jemez, like many other tribal health centers will have its own provider network, operating very much along the same lines as a managed care entity.

Therefore, the Pueblo of Jemez proposes that the state issue mini-grants to tribal health entities to establish tribal health homes as pilot sites in the first year of this modernization effort. The tribal health homes would fully participate as partners in the state’s plans for Medicaid modernization, including:

1.       Tribal sites will receive IT infrastructure on par with the other pilot sites for access to such things as the Medicaid Management Information System, which the state pays for existing MCOs;

2.       Tribal sites will have access to the consolidated credential and re-credentialing processes;

3.       Tribal sites will have access to (if desired) the state’s contract Third Party Administrator;

4.       Tribal sites will direct bill for Medicaid.

                                                             ii.      The state must retain the “opt out” provision for tribes for all state- MCO relationships.

These first two remedies to alleviate many concerns related to tribal sovereignty, protect direct reimbursements to tribes and ensure culturally appropriate health care delivery.

                                                            iii.      Tribal Participation must be required in the development of the RFP’s for the MCO’s and on the selection committee of the MCO’s.

                                                           iv.      Tribal Subject Matter Experts (SME) must participate in selection or evaluation of proposed evidence based, best practices identified as applicable to Native American populations.

                                                             v.      There must be equitable tribal representation on the governing board that will provide direction and oversight to the state’s Modernized Medicaid system.

·         Tribal Remedy

                                                               i.      CMS Tribal Consultation (Exhibit B): Unlike any other population in the State of New Mexico, tribes have the option to work directly with CMS. Specifically, under the CMS Tribal Consultation Policy, signed into effect in November 2011: “…consultation must occur on an ongoing basis so that Indian Tribes have an opportunity to provide meaningful and timely input on issues that may have a substantial direct effect on Indian Tribes.” (page 3) If the State of New Mexico continues, as planned to seek CMS authorization and waivers to implement its Medicaid Modernization as described in the Centennial Care document, the tribes are within their authority to dispute the matter directly to CMS; tribes may request that CMS facilitate mediation between the tribes and the state, and deny any waiver request from the state that diminishes tribal sovereignty or attempts to limit federal law. 

                                                             ii.      WHAT ELSE CAN WE DO?

Kewa Position paper

Pueblo of Kewa Position paper that was sent to NM HSD

Sidonie Squier,

Cabinet Secretary, HSD
2009 Pacheco Street
Box 2348
Santa Fe, NM  87504

Re: Response to HSD Concept Paper on Centennial Care February 12, 2012

Ms. Squier,

Health care for Native Americans has historically been a federal relationship with Native tribes throughout the United States. It started with the Snyder Act, the creation of the Public Health Service, PL 93-638, the Social Security Acts specifically Title 18 and 19 and the Indian Health Care Improvement Act (IHCIA). More recently, the American Reinvestment and Recovery Act, (ARRA), permanent authorization of the IHCIA under the Patient Protection and Affordable Care Act (ACA) significantly impacts the controlling legislation affecting Centennial Care. The Kewa Pueblo Health Corporation (KPHC) maintains that there are ‘Federal protections’ for Natives and Native health facilities under Federal laws:

Under the ACA, there is no mandatory participation for Natives to enroll in Managed Care nor is there a penalty if a Native does not buy health insurance.

Under ARRA, Section 5006 and 42 U.S.C.§ 1396o(j) stipulates no premiums or cost sharing for services by Indian health programs or CHS referrals. Also, under 42 U.S.C. §1396u-2(h) has special rules for Indian enrollees, Indian providers and alternative prompt payment arrangements.

Public Law 93-638, the Indian Self Determination and Education Assistance Act are contracts/compacts that define and describe the Programs, Functions, Services and Activities (PFSAs) assumed by Tribes under this law. PFSAs are contracted health systems with regulations describing implementation of Indian health care administratively, clinically and by various preventive and support service delivery systems.

It took Tribes years to work with Congress to get permanent legislation authorized in passing the IHCIA. Under the new law, Sec 206, 340-B stipulates that Indian Health Service and Tribal 638 facilities be reimbursed the highest reimbursement rates for outpatient services. There are other provisions and sections that the State, along with CMS, need to review the IHCIA including PL 106-417 cited as the ‘Alaska Native American Indian Direct Reimbursement Act of 2000’. 

The new Federal legislation termed the Tribal Law and Order Act has Sections requiring behavioral health services, credentialing, domestic violence and adolescent treatment programs including psychiatric inpatient requirements.

In addition, as difficult and cumbersome as it may be, the State is required to consult with Tribes under Federal and State laws. There is the Federal Executive Order signed by President Obama, the requirement under ARRA, the State of New Mexico Collaborative Act and the CMS Tribal consultation policy signed in November of 2011. In addition, there are separate agreements with the Veterans Administration, Public Health Service Acts and OMB/OPM regulations.

There are special protections under various Federal Laws applicable to Indian Health Service, Tribes and Urban (ITUs) organizations. Some that are significant to Centennial Care concepts are: the OMB reimbursement rates should remain, no cost sharing with ITUs for care provided at their facilities and referred to outside facilities through the ITUs and 100% FMAP reimbursed to Indian Health and Tribal 638 facilities. 

 As you can realized the Native health care is legally a Federal Trust relationship first and foremost.  As you are required to learn and negotiate with CMS and federally mandated requirements, the Native tribes have been doing this since the US Constitution was created. As frustrating as it may be, the State, Federal Government/CMS and Tribes will still need to communicate, understand and follow the various Federal laws before Centennial Care is developed and implemented in this State.

The KPHC response follows the Goals as outlined in the Centennial Care concept paper:

Goal 1: To assure that Medicaid enrollees in the program receive the right amount of care at the right time in the most cost effective or ‘right’ settings.

• The filing of a single Section 1115 waiver and through the procurement and contracting that is planned will invite and bring the same MCOs that have been contracted with the State in recent years past. Strong and enforceable contract language needs to be developed to meet the goals and concepts identified in the concept paper.

• Patient-centered medical home is a very good idea and concept. If the State is to use ITU facilities for case management and coordination, funding and staffing increases will be needed. All 6 Federally mandated services that are federally described will have to be incorporated into the current Indian Health Service and 638 federally contracted and regulated PFSAs.

• Fee for Service (FFS) has to remain. FFS as shown in other States and past practices in this State show that Rural and Frontier areas have limited MCO facilities and providers in these remote communities. We suggest another designation category for the State called ‘Reservation areas’.  MCOs have had their own challenges in accessing Rural, Frontier and Reservations areas and examples by Indian Health and Tribal providers, business office managers will validate access, referral, service limitations and reimbursement issues.

 Goal 2: To assure that the Care being purchased by the State is measured in terms of Quality and not Quantity.

• What have we learned from the past few years with the MCOs, Saluds, COLTs and Behavioral Health Contractors? Where is the data collections and reporting showing the outcome measures under those health care delivery systems?

• Is HEDIS in place now? How can ITUs interface with the State IT systems that exist in Reservation areas? Are IT upgrades part of the cost reimbursements formula or start up formulas?

• What successful evidence based practices will be used for chronic health care? Diabetes? How will such practices be integrated with existing federally regulated PFSAs under Tribal 638 programs and best practices in ITU communities? Will such evidence based practices be incorporated to existing practices by ITUs and be culturally responsive to ITU communities?

Goal 3: Bending the Cost Curve

• Reimbursement rates are established for Indian Health and 638 facilities again by Federal laws. As noted in the IHCIA, the highest reimbursable rates are to remain with ITUs. The 100% FMAP should continue as costs in Reservation areas are simply more expensive. The MCOs can validate these high costs from their access and payment histories.

• Prior quarter coverage for Native health care will not work nor is it cost effective. Simply enrolling in a Health Plan with no past history of care, access provisions, and questionable service definitions at this time will eliminate Native enrollees.

• The use of Health Homes with intensive care management provided at the ‘point of service’ is an excellent idea if staffing and facility funding is available. The Incentives identified are also good suggestions however, there may be other ideas. The Peer to Peer comparative data review is an approach needing evaluation constructs and review.

• Federal laws guide ITUs on credentialing and have been questioned by State MCO providers in the past. All State providers will need to be educated as part of their contracts in working with ITU facilities and Native health care rights under Federal Laws.

Goal 4: To Streamline Services in preparation of expected increase in membership beginning 2014.

• KPHC offers that dual eligible strategies will need planning and discussion with ITU social workers, clinical providers and business office coordinators before any plans are developed with Native dual eligibles. There needs to be clear definitions, supported by regulations and not arbitrary decisions as to who is eligible, what services are covered by each entity, streamlining access issues, billing protocols and limitations of each eligibility criteria.

• Care Coordination by MCOs at a level appropriate to each enrollee and risk stratification will be a challenge. Health Assessments with IT upgrades will take time and communications streamlining will need written procedures. Monitoring and long term care with support services is very limited in Reservation areas now. How will Care coordinators be assigned? How will quality metrics be baselined and established for medical homes?

• Behavioral Health Carve-in. How will the MCOs provide for residential and inpatient treatment at sub-capitation rates?  Why sub-capitation rates? What economic and empirical data is used to declare sub-capitation rates?  Prior authorizations for residential services is not and should not be requested by Federal and Tribal facilities as these facilities are mandated by Public laws to provide these services under their Federal admission policies.

• The Core Service Agencies include all ITUs? Most CSAs are located in metropolitan areas just like MCOs. How do CSAs reach and provide specialized services to the Reservation areas?  Most ITUs do not have the funding or ability to provide specialized services.

• Adolescent residential treatment and psychiatric inpatient treatment for youth is mandated by PL 99-570 and the Tribal Law and Order Acts. How will sub-capitation apply for these services as compared to negotiated CMS rates? How will the SMI and SED, psychiatric inpatients be placed and coordinated by MCOs and more importantly, reimbursed? Will tribal court placement orders be accepted by State and MCO inpatient facilities?

• Mini-Grants identified in the plan to develop pilot sites need to be established with ITUs before 2014. To understand and participate in the various aspects of the plan KPHC recommends separate meetings with Tribes on 1) Application and Enrollment process, 2) ITU as Providers in the Exchange plans, 3) Enrollment assistance, outreach, 4) Group Purchasing and Sponsorships of tribal members and 5) Native benefits and federal protections. These sessions should include IT infrastructure, third party administrator and transitioning of reimbursement procedures. The communications with tribes needs to begin now before we meet with our Tribal members.

Greetings fellow Native American Medicaid Workgroup members and interested parties,  I have created this blog so that we can all share information.  At the Last Kewa Strategy session on May 3, 2012, it was decided that we needed to share information relevant to the development of a Tribal position paper encompassing all Tribal comments on the State of New Mexicos Medicaid redesign concept "Centennial Care" 1115 Research and Demonstration Waiver.  The Workgroup is creating a position paper leading to a resolution that can be shared with Tribes and Tribal organizations like Ten Southern Governer Council, Eight Northern Governers Council and All Indian Pueblo Council.  The resolution is ment to promote a unified response from the Pueblos to the State of New Mexico and The Federal Govenment, stating our opposition to the unilateral implementation of Centennial Care on Tribes and Pueblos.