361 
ignees of Indian Health Programs and Urban 
Indian Organizations).’’. 
(c) RULE OF CONSTRUCTION.—Nothing in the amend-
ments made by this section shall be construed as super-
seding existing advisory committees, working groups, guid-
ance, or other advisory procedures established by the Sec-
retary of Health and Human Services or by any State with 
respect to the provision of health care to Indians. 
SEC. 207. EXCLUSION WAIVER AUTHORITY FOR AFFECTED 
INDIAN HEALTH PROGRAMS AND SAFE HAR-
BOR TRANSACTIONS UNDER THE SOCIAL SE-
CURITY ACT. 
(a) EXCLUSION WAIVER AUTHORITY.—Section 1128 of 
the Social Security Act (42 U.S.C. 1320a–7) is amended 
by adding at the end the following new subsection: 
‘‘(k) ADDITIONAL EXCLUSION WAIVER AUTHORITY 
FOR AFFECTED INDIAN HEALTH PROGRAMS.—In addition 
to the authority granted the Secretary under subsections 
(c)(3)(B) and (d)(3)(B) to waive an exclusion under sub-
section (a)(1), (a)(3), (a)(4), or (b), the Secretary may, in 
the case of an Indian Health Program, waive such an exclu-
sion upon the request of the administrator of an affected 
Indian Health Program (as defined in section 4 of the In-
dian Health Care Improvement Act) who determines that 
the exclusion would impose a hardship on individuals enti-
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362 
tled to benefits under or enrolled in a Federal health care 
program.’’. 
(b) 
CERTAIN
TRANSACTIONS
INVOLVING
INDIAN 
HEALTH CARE PROGRAMS DEEMED TO BE IN SAFE HAR-
BORS.—Section 1128B(b) of the Social Security Act (42 
U.S.C. 1320a–7b(b)) is amended by adding at the end the 
following new paragraph: 
‘‘(4) Subject to such conditions as the Secretary may 
promulgate from time to time as necessary to prevent fraud 
and abuse, for purposes of paragraphs (1) and (2) and sec-
tion 1128A(a), the following transfers shall not be treated 
as remuneration: 
‘‘(A) TRANSFERS
BETWEEN
INDIAN
HEALTH 
PROGRAMS, INDIAN TRIBES, TRIBAL ORGANIZATIONS, 
AND
URBAN
INDIAN
ORGANIZATIONS.—Transfers of 
anything of value between or among an Indian 
Health Program, Indian Tribe, Tribal Organization, 
or Urban Indian Organization, that are made for the 
purpose of providing necessary health care items and 
services to any patient served by such Program, 
Tribe, or Organization and that consist of— 
‘‘(i) services in connection with the collec-
tion, transport, analysis, or interpretation of di-
agnostic specimens or test data; 
‘‘(ii) inventory or supplies; 
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‘‘(iii) staff; or 
‘‘(iv) a waiver of all or part of premiums 
or cost sharing. 
‘‘(B) TRANSFERS
BETWEEN
INDIAN
HEALTH 
PROGRAMS, INDIAN TRIBES, TRIBAL ORGANIZATIONS, 
OR URBAN INDIAN ORGANIZATIONS AND PATIENTS.— 
Transfers of anything of value between an Indian 
Health Program, Indian Tribe, Tribal Organization, 
or Urban Indian Organization and any patient 
served or eligible for service from an Indian Health 
Program, Indian Tribe, Tribal Organization, or 
Urban Indian Organization, including any patient 
served or eligible for service pursuant to section 807 
of the Indian Health Care Improvement Act, but only 
if such transfers— 
‘‘(i) consist of expenditures related to pro-
viding transportation for the patient for the pro-
vision of necessary health care items or services, 
provided that the provision of such transpor-
tation is not advertised, nor an incentive of 
which the value is disproportionately large in re-
lationship to the value of the health care item or 
service (with respect to the value of the item or 
service itself or, for preventative items or serv-
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364 
ices, the future health care costs reasonably ex-
pected to be avoided); 
‘‘(ii) consist of expenditures related to pro-
viding housing to the patient (including a preg-
nant patient) and immediate family members or 
an escort necessary to assuring the timely provi-
sion of health care items and services to the pa-
tient, provided that the provision of such housing 
is not advertised nor an incentive of which the 
value is disproportionately large in relationship 
to the value of the health care item or service 
(with respect to the value of the item or service 
itself or, for preventative items or services, the 
future health care costs reasonably expected to be 
avoided); or 
‘‘(iii) are for the purpose of paying pre-
miums or cost sharing on behalf of such a pa-
tient, provided that the making of such payment 
is not subject to conditions other than conditions 
agreed to under a contract for the delivery of 
contract health services. 
‘‘(C) CONTRACT HEALTH SERVICES.—A transfer 
of anything of value negotiated as part of a contract 
entered into between an Indian Health Program, In-
dian Tribe, Tribal Organization, Urban Indian Or-
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365 
ganization, or the Indian Health Service and a con-
tract care provider for the delivery of contract health 
services authorized by the Indian Health Service, pro-
vided that— 
‘‘(i) such a transfer is not tied to volume or 
value of referrals or other business generated by 
the parties; and 
‘‘(ii) any such transfer is limited to the fair 
market value of the health care items or services 
provided or, in the case of a transfer of items or 
services related to preventative care, the value of 
the future health care costs reasonably expected 
to be avoided. 
‘‘(D) OTHER TRANSFERS.—Any other transfer of 
anything of value involving an Indian Health Pro-
gram, Indian Tribe, Tribal Organization, or Urban 
Indian Organization, or a patient served or eligible 
for service from an Indian Health Program, Indian 
Tribe, Tribal Organization, or Urban Indian Organi-
zation, that the Secretary, in consultation with the 
Attorney General, determines is appropriate, taking 
into account the special circumstances of such Indian 
Health Programs, Indian Tribes, Tribal Organiza-
tions, and Urban Indian Organizations, and of pa-
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366 
tients served by such Programs, Tribes, and Organi-
zations.’’. 
SEC. 208. RULES APPLICABLE UNDER MEDICAID AND SCHIP 
TO MANAGED CARE ENTITIES WITH RESPECT 
TO INDIAN ENROLLEES AND INDIAN HEALTH 
CARE PROVIDERS AND INDIAN MANAGED 
CARE ENTITIES. 
(a) IN GENERAL.—Section 1932 of the Social Security 
Act (42 U.S.C. 1396u–2) is amended by adding at the end 
the following new subsection: 
‘‘(h) SPECIAL RULES WITH RESPECT TO INDIAN EN-
ROLLEES, INDIAN HEALTH CARE PROVIDERS, AND INDIAN 
MANAGED CARE ENTITIES.— 
‘‘(1) ENROLLEE OPTION TO SELECT AN INDIAN 
HEALTH
CARE
PROVIDER
AS
PRIMARY
CARE
PRO-
VIDER.—In the case of a non-Indian Medicaid man-
aged care entity that— 
‘‘(A) has an Indian enrolled with the entity; 
and 
‘‘(B) has an Indian health care provider 
that is participating as a primary care provider 
within the network of the entity, 
insofar as the Indian is otherwise eligible to receive 
services from such Indian health care provider and 
the Indian health care provider has the capacity to 
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367 
provide primary care services to such Indian, the con-
tract with the entity under section 1903(m) or under 
section 1905(t)(3) shall require, as a condition of re-
ceiving payment under such contract, that the Indian 
shall be allowed to choose such Indian health care 
provider as the Indian’s primary care provider under 
the entity. 
‘‘(2) ASSURANCE
OF
PAYMENT
TO
INDIAN 
HEALTH CARE PROVIDERS FOR PROVISION OF COV-
ERED
SERVICES.—Each contract with a managed 
care entity under section 1903(m) or under section 
1905(t)(3) shall require any such entity that has a 
significant percentage of Indian enrollees (as deter-
mined by the Secretary), as a condition of receiving 
payment under such contract to satisfy the following 
requirements: 
‘‘(A) DEMONSTRATION
OF
PARTICIPATING 
INDIAN HEALTH CARE PROVIDERS OR APPLICA-
TION
OF
ALTERNATIVE
PAYMENT
ARRANGE-
MENTS.—Subject to subparagraph (E), to— 
‘‘(i) demonstrate that the number of 
Indian health care providers that are par-
ticipating providers with respect to such en-
tity are sufficient to ensure timely access to 
covered Medicaid managed care services for 
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368 
those enrollees who are eligible to receive 
services from such providers; or 
‘‘(ii) agree to pay Indian health care 
providers who are not participating pro-
viders with the entity for covered Medicaid 
managed care services provided to those en-
rollees who are eligible to receive services 
from such providers at a rate equal to the 
rate negotiated between such entity and the 
provider involved or, if such a rate has not 
been negotiated, at a rate that is not less 
than the level and amount of payment 
which the entity would make for the services 
if the services were furnished by a partici-
pating provider which is not an Indian 
health care provider. 
‘‘(B) PROMPT PAYMENT.—To agree to make 
prompt payment (in accordance with rules ap-
plicable to managed care entities) to Indian 
health care providers that are participating pro-
viders with respect to such entity or, in the case 
of an entity to which subparagraph (A)(ii) or 
(E) applies, that the entity is required to pay in 
accordance with that subparagraph. 
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369 
‘‘(C) SATISFACTION
OF
CLAIM
REQUIRE-
MENT.—To deem any requirement for the sub-
mission of a claim or other documentation for 
services covered under subparagraph (A) by the 
enrollee to be satisfied through the submission of 
a claim or other documentation by an Indian 
health care provider that is consistent with sec-
tion 403(h) of the Indian Health Care Improve-
ment Act. 
‘‘(D) COMPLIANCE WITH GENERALLY APPLI-
CABLE REQUIREMENTS.— 
‘‘(i) IN
GENERAL.—Subject to clause 
(ii), as a condition of payment under sub-
paragraph (A), an Indian health care pro-
vider shall comply with the generally appli-
cable requirements of this title, the State 
plan, and such entity with respect to cov-
ered Medicaid managed care services pro-
vided by the Indian health care provider to 
the same extent that non-Indian providers 
participating with the entity must comply 
with such requirements. 
‘‘(ii) LIMITATIONS
ON
COMPLIANCE 
WITH MANAGED CARE ENTITY GENERALLY 
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370 
APPLICABLE
REQUIREMENTS.—An Indian 
health care provider— 
‘‘(I) shall not be required to com-
ply with a generally applicable re-
quirement of a managed care entity 
described in clause (i) as a condition of 
payment under subparagraph (A) if 
such compliance would conflict with 
any other statutory or regulatory re-
quirements applicable to the Indian 
health care provider; and 
‘‘(II) shall only need to comply 
with those generally applicable require-
ments of a managed care entity de-
scribed in clause (i) as a condition of 
payment under subparagraph (A) that 
are necessary for the entity’s compli-
ance with the State plan, such as those 
related to care management, quality 
assurance, and utilization manage-
ment. 
‘‘(E) APPLICATION
OF
SPECIAL
PAYMENT 
REQUIREMENTS
FOR
FEDERALLY-QUALIFIED 
HEALTH CENTERS AND ENCOUNTER RATE FOR 
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371 
SERVICES
PROVIDED
BY
CERTAIN
INDIAN 
HEALTH CARE PROVIDERS.— 
‘‘(i) FEDERALLY-QUALIFIED
HEALTH 
CENTERS.— 
‘‘(I) MANAGED CARE ENTITY PAY-
MENT REQUIREMENT.—To agree to pay 
any Indian health care provider that 
is a federally-qualified health center 
but not a participating provider with 
respect to the entity, for the provision 
of covered Medicaid managed care 
services by such provider to an Indian 
enrollee of the entity at a rate equal to 
the amount of payment that the entity 
would pay a federally-qualified health 
center that is a participating provider 
with respect to the entity but is not an 
Indian health care provider for such 
services. 
‘‘(II) CONTINUED APPLICATION OF 
STATE
REQUIREMENT
TO
MAKE
SUP-
PLEMENTAL
PAYMENT.—Nothing 
in 
subclause (I) or subparagraph (A) or 
(B) shall be construed as waiving the 
application of section 1902(bb)(5) re-
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372 
garding the State plan requirement to 
make any supplemental payment due 
under such section to a federally-quali-
fied health center for services furnished 
by such center to an enrollee of a man-
aged care entity (regardless of whether 
the federally-qualified health center is 
or is not a participating provider with 
the entity). 
‘‘(ii) CONTINUED APPLICATION OF EN-
COUNTER RATE FOR SERVICES PROVIDED BY 
CERTAIN
INDIAN
HEALTH
CARE
PRO-
VIDERS.—If the amount paid by a managed 
care entity to an Indian health care pro-
vider that is not a federally-qualified health 
center and that has elected to receive pay-
ment under this title as an Indian Health 
Service provider under the July 11, 1996, 
Memorandum of Agreement between the 
Health Care Financing Administration 
(now the Centers for Medicare & Medicaid 
Services) and the Indian Health Service for 
services provided by such provider to an In-
dian enrollee with the managed care entity 
is less than the encounter rate that applies 
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373 
to the provision of such services under such 
memorandum, the State plan shall provide 
for payment to the Indian health care pro-
vider of the difference between the applicable 
encounter rate under such memorandum 
and the amount paid by the managed care 
entity to the provider for such services. 
‘‘(F) 
CONSTRUCTION.—Nothing 
in 
this 
paragraph shall be construed as waiving the ap-
plication of section 1902(a)(30)(A) (relating to 
application of standards to assure that payments 
are consistent with efficiency, economy, and 
quality of care). 
‘‘(3) OFFERING OF MANAGED CARE THROUGH IN-
DIAN MEDICAID MANAGED CARE ENTITIES.—If— 
‘‘(A) a State elects to provide services 
through Medicaid managed care entities under 
its Medicaid managed care program; and 
‘‘(B) an Indian health care provider that is 
funded in whole or in part by the Indian Health 
Service, or a consortium composed of 1 or more 
Tribes, Tribal Organizations, or Urban Indian 
Organizations, and which also may include the 
Indian Health Service, has established an In-
dian Medicaid managed care entity in the State 
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374 
that meets generally applicable standards re-
quired of such an entity under such Medicaid 
managed care program, 
the State shall offer to enter into an agreement with 
the entity to serve as a Medicaid managed care entity 
with respect to eligible Indians served by such entity 
under such program. 
‘‘(4) SPECIAL RULES FOR INDIAN MANAGED CARE 
ENTITIES.—The following are special rules regarding 
the application of a Medicaid managed care program 
to Indian Medicaid managed care entities: 
‘‘(A) ENROLLMENT.— 
‘‘(i) LIMITATION TO INDIANS.—An In-
dian Medicaid managed care entity may re-
strict enrollment under such program to In-
dians and to members of specific Tribes in 
the same manner as Indian Health Pro-
grams may restrict the delivery of services 
to such Indians and tribal members. 
‘‘(ii) NO
LESS
CHOICE
OF
PLANS.— 
Under such program the State may not 
limit the choice of an Indian among Med-
icaid managed care entities only to Indian 
Medicaid managed care entities or to be 
more restrictive than the choice of managed 
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375 
care entities offered to individuals who are 
not Indians. 
‘‘(iii) DEFAULT ENROLLMENT.— 
‘‘(I) IN GENERAL.—If such pro-
gram of a State requires the enrollment 
of Indians in a Medicaid managed 
care entity in order to receive benefits, 
the State, taking into consideration the 
criteria 
specified 
in 
subsection 
(a)(4)(D)(ii)(I), shall provide for the 
enrollment of Indians described in sub-
clause (II) who are not otherwise en-
rolled with such an entity in an In-
dian Medicaid managed care entity de-
scribed in such clause. 
‘‘(II) 
INDIAN
DESCRIBED.—An 
Indian described in this subclause, 
with respect to an Indian Medicaid 
managed care entity, is an Indian 
who, based upon the service area and 
capacity of the entity, is eligible to be 
enrolled with the entity consistent with 
subparagraph (A). 
‘‘(iv) EXCEPTION TO STATE LOCK-IN.— 
A request by an Indian who is enrolled 
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376 
under such program with a non-Indian 
Medicaid managed care entity to change en-
rollment with that entity to enrollment with 
an Indian Medicaid managed care entity 
shall be considered cause for granting such 
request under procedures specified by the 
Secretary. 
‘‘(B) FLEXIBILITY IN APPLICATION OF SOL-
VENCY.—In applying section 1903(m)(1) to an 
Indian Medicaid managed care entity— 
‘‘(i) any reference to a ‘State’ in sub-
paragraph (A)(ii) of that section shall be 
deemed to be a reference to the ‘Secretary’; 
and 
‘‘(ii) the entity shall be deemed to be a 
public entity described in subparagraph 
(C)(ii) of that section. 
‘‘(C) EXCEPTIONS
TO
ADVANCE
DIREC-
TIVES.—The Secretary may modify or waive the 
requirements of section 1902(w) (relating to pro-
vision of written materials on advance direc-
tives) insofar as the Secretary finds that the re-
quirements otherwise imposed are not an appro-
priate or effective way of communicating the in-
formation to Indians. 
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377 
‘‘(D) FLEXIBILITY
IN
INFORMATION
AND 
MARKETING.— 
‘‘(i) MATERIALS.—The Secretary may 
modify requirements under subsection (a)(5) 
to ensure that information described in that 
subsection is provided to enrollees and po-
tential enrollees of Indian Medicaid man-
aged care entities in a culturally appro-
priate and understandable manner that 
clearly communicates to such enrollees and 
potential enrollees their rights, protections, 
and benefits. 
‘‘(ii) DISTRIBUTION
OF
MARKETING 
MATERIALS.—The provisions of subsection 
(d)(2)(B) requiring the distribution of mar-
keting materials to an entire service area 
shall be deemed satisfied in the case of an 
Indian Medicaid managed care entity that 
distributes appropriate materials only to 
those Indians who are potentially eligible to 
enroll with the entity in the service area. 
‘‘(5) MALPRACTICE
INSURANCE.—Insofar as, 
under a Medicaid managed care program, a health 
care provider is required to have medical malpractice 
insurance coverage as a condition of contracting as a 
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378 
provider with a Medicaid managed care entity, an 
Indian health care provider that is— 
‘‘(A) a federally-qualified health center that 
is covered under the Federal Tort Claims Act (28 
U.S.C. 1346(b), 2671 et seq.); 
‘‘(B) providing health care services pursu-
ant to a contract or compact under the Indian 
Self-Determination and Education Assistance 
Act (25 U.S.C. 450 et seq.) that are covered 
under the Federal Tort Claims Act (28 U.S.C. 
1346(b), 2671 et seq.); or 
‘‘(C) the Indian Health Service providing 
health care services that are covered under the 
Federal Tort Claims Act (28 U.S.C. 1346(b), 
2671 et seq.); 
are deemed to satisfy such requirement. 
‘‘(6) DEFINITIONS.—For purposes of this sub-
section: 
‘‘(A) INDIAN
HEALTH
CARE
PROVIDER.— 
The term ‘Indian health care provider’ means an 
Indian Health Program or an Urban Indian Or-
ganization. 
‘‘(B) INDIAN; INDIAN
HEALTH
PROGRAM; 
SERVICE; TRIBE; TRIBAL ORGANIZATION; URBAN 
INDIAN ORGANIZATION.—The terms ‘Indian’, ‘In-
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379 
dian Health Program’, ‘Service’, ‘Tribe’, ‘tribal 
organization’, ‘Urban Indian Organization’ have 
the meanings given such terms in section 4 of the 
Indian Health Care Improvement Act. 
‘‘(C) INDIAN MEDICAID MANAGED CARE EN-
TITY.—The term ‘Indian Medicaid managed care 
entity’ means a managed care entity that is con-
trolled (within the meaning of the last sentence 
of section 1903(m)(1)(C)) by the Indian Health 
Service, a Tribe, Tribal Organization, or Urban 
Indian Organization, or a consortium, which 
may be composed of 1 or more Tribes, Tribal Or-
ganizations, or Urban Indian Organizations, 
and which also may include the Service. 
‘‘(D) NON-INDIAN MEDICAID MANAGED CARE 
ENTITY.—The term ‘non-Indian Medicaid man-
aged care entity’ means a managed care entity 
that is not an Indian Medicaid managed care 
entity. 
‘‘(E) COVERED MEDICAID MANAGED CARE 
SERVICES.—The term ‘covered Medicaid man-
aged care services’ means, with respect to an in-
dividual enrolled with a managed care entity, 
items and services that are within the scope of 
items and services for which benefits are avail-
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380 
able with respect to the individual under the con-
tract between the entity and the State involved. 
‘‘(F) 
MEDICAID
MANAGED
CARE
PRO-
GRAM.—The term ‘Medicaid managed care pro-
gram’ means a program under sections 1903(m) 
and 1932 and includes a managed care program 
operating under a waiver under section 1915(b) 
or 1115 or otherwise.’’. 
(b) APPLICATION TO SCHIP.—Section 2107(e)(1) of 
such Act (42 U.S.C. 1397gg(1)), as amended by section 
206(b)(2), is amended by adding at the end the following 
new subparagraph: 
‘‘(H) Subsections (a)(2)(C) and (h) of sec-
tion 1932.’’. 
SEC. 209. ANNUAL REPORT ON INDIANS SERVED BY SOCIAL 
SECURITY ACT HEALTH BENEFIT PROGRAMS. 
Section 1139 of the Social Security Act (42 U.S.C. 
1320b–9), as amended by the sections 202, 205, and 206, 
is amended by redesignating subsection (e) as subsection (f), 
and inserting after subsection (d) the following new sub-
section: 
‘‘(e) ANNUAL
REPORT
ON
INDIANS
SERVED
BY 
HEALTH
BENEFIT
PROGRAMS
FUNDED
UNDER
THIS 
ACT.—Beginning January 1, 2007, and annually there-
after, the Secretary, acting through the Administrator of the 
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381 
Centers for Medicare & Medicaid Services and the Director 
of the Indian Health Service, shall submit a report to Con-
gress regarding the enrollment and health status of Indians 
receiving items or services under health benefit programs 
funded under this Act during the preceding year. Each such 
report shall include the following: 
‘‘(1) The total number of Indians enrolled in, or 
receiving items or services under, such programs, 
disaggregated with respect to each such program. 
‘‘(2) The number of Indians described in para-
graph (1) that also received health benefits under pro-
grams funded by the Indian Health Service. 
‘‘(3) General information regarding the health 
status of the Indians described in paragraph (1), 
disaggregated with respect to specific diseases or con-
ditions and presented in a manner that is consistent 
with protections for privacy of individually identifi-
able health information under section 264(c) of the 
Health Insurance Portability and Accountability Act 
of 1996. 
‘‘(4) A detailed statement of the status of facili-
ties of the Indian Health Service or an Indian Tribe, 
Tribal Organization, or an Urban Indian Organiza-
tion with respect to such facilities’ compliance with 
the applicable conditions and requirements of titles 
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382 
XVIII, XIX, and XXI, and, in the case of title XIX 
or XXI, under a State plan under such title or under 
waiver authority, and of the progress being made by 
such facilities (under plans submitted under section 
1880(b), 1911(b) or otherwise) toward the achieve-
ment and maintenance of such compliance. 
‘‘(5) Such other information as the Secretary de-
termines is appropriate.’’. 
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Union Calendar No. 444 
110TH CONGRESS 
2D SESSION 
H. R. 1328 
[Report No. 110–564, Part I] 
A BILL 
To amend the Indian Health Care Improvement 
Act to revise and extend that Act. 
JUNE 6, 2008 
Committees on Energy and Commerce and Ways and 
Means discharged; committed to the Committee of the 
Whole House on the State of the Union and ordered 
to be printed 
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