[Congressional Record Volume 151, Number 106 (Friday, July 29, 2005)]
[Senate]
[Page S9494]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JOHNSON (for himself and Mr. Bingaman):
  S. 1572. A bill to amend title XIX of the Social Security Act to 
clarify the application of the 100 percent Federal medical assistance 
percentage under the Medicaid program for services provided by the 
Indian Health Service or an Indian tribe or tribal organization 
directly or through referral, contract, or other arrangement; to the 
Committee on Finance.
  Mr. JOHNSON. Mr. President, today I am introducing legislation that 
will make a necessary clarification to current law regarding the 
application of the federal medical assistance percentage or FMAP. I am 
joined by Senator Bingaman in introducing this bill.
  The Indian Health Care Improvement Act, IHCIA, provides for 100 
percent Federal medical assistance percentage, FMAP, applicable to 
Medicaid services ``received through an Indian Health Service 
facility.'' This definition has created some issues for state Medicaid 
programs when applying for the full FMAP rate for services provided to 
Native Americans that are referred by an Indian Health Service facility 
to a non-IRS facility.
  North Dakota and South Dakota have been in the courts with the 
Centers for Medicare and Medicaid Services or CMS over this issue. 
Since last year when CMS determined that the 100 percent FMAP was not 
allowable for referred services, North Dakota and South Dakota appealed 
and prevailed in a lawsuit at the district court level. The Federal 
appeals court has now reversed the district court's decision and 
affirmed that those states must repay CMS for the excess payments. 
While the court sided in favor of CMS, the decision states that there 
is a lack of clarity in the statute pertaining to how referred patients 
are covered through the Federal match.
  CMS disallowed $4 million in payments that South Dakota's Department 
of Social Services had billed Medicaid through the 100 percent FMAP for 
Indian patients seen in non-IHS facilities through referrals. At issue 
is a lack of specificity regarding how far ``received through'' should 
extend. The most recent court decision even states ``the statutory 
language is susceptible to multiple interpretations.''
  The legislation I am introducing today will clarify the statute and 
make it completely clear that any services provided under a state 
Medicaid plan which are referred by any Indian Health Service facility, 
whether operated by the IHS or by and Indian tribe or tribal 
organization are to be covered by the 100 percent FMAP amount. Any 
previous disallowance of a claim or claims by CMS will be reviewed by 
the Department of Health and Human Services within 90 days of enactment 
of this legislation and payments adjusted accordingly if the claim 
meets the standards set forth in this bill.
  The Senate Indian Affairs Committee, of which I am a member, will be 
considering the IHCIA this fall. It is my hope that this legislation 
will be considered within the broader context of the debate on IHCIA. 
Clearly the Federal government has an obligation to live up to the 
treaties and responsibilities to our tribes and all Native Americans. I 
see this legislation as an extension of the obligation.
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