WASHINGTON INDIAN HEALTH CARE IMPROVEMENT ACT An Act relating to Indian health care in Washington state; amending RCW XXX; adding a chapter to title 70. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: NEW SECTION. Sec. 1. Indian Health Care State Policy. A new section is added to chapter 70 RCW to read as follows: The legislature declares it is the policy of this state, in fulfillment of the state s unique relationships and shared respect between sovereign governments to: (1) Recognize the United States trust responsibility to provide health care to American Indian and Alaska Natives including those individuals who are citizens of Washington state; (2) Recognize that American Indians and Alaska Native citizens of Washington state shall have equitable access to any health care benefits provided by the state; and (3) Improve upon and rectify unintended consequences of prior state policies and actions that have limited American Indian and Alaska Native access to health care that is part of the federal trust responsibility and/or the health care benefits provided by the state to its citizens. In order to fulfill the state s policy under this chapter, the state will: (1) Ensure that when the state delegates health care responsibilities to non-governmental entities, actions of those entities that impact American Indian and Alaska Native access to health care will be consistent with maintaining the federal trust responsibility to provide health care to American Indians Draft Washington Health Care Improvement Act Page 1 of 34
and Alaska Natives and the policies contained within this section. (2) Ensure the state of Washington and tribes work in a government-to-government relationship to ensure quality health care for all tribal members; (3) Require that all actions under this chapter shall be carried out with active and meaningful consultation with tribes and conference with urban Indian health programs, to implement this chapter and the national policy of Indian selfdetermination; (4) Ensure the highest possible status for American Indians and Alaska Natives by providing resources necessary to effect that policy; (5) Raise the health status of American Indians and Alaska Natives to at least the levels set forth in the goals contained within the Healthy People 2020 initiative or successor objectives; (6) Ensure maximum American Indian and Alaska Native participation in the direction of health care services so as to render the persons administering such services more responsive to the needs and desires of American Indian and Alaskan Native individuals and communities; and (7) Ensure savings realized by the state of Washington for services which are received through an Indian Health Service facility whether operated by the Indian Health Service or by an Indian tribe or tribal organization pursuant to paragraph (b) of title 42, section 1396d of the United States Code, are reinvested back into the Indian health care delivery system within the state. NEW SECTION. Sec. 2. Definitions. Draft Washington Health Care Improvement Act Page 2 of 34
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) American Indian/Alaska Native 1 means any individual who is (a) a member of a federally recognized tribe; or (b) eligible for the Indian Health Service. (2) Authority means the health care authority as the single state medicaid agency. (3) Community health aide means a health care worker certified by a community health aide program of the Indian Health Service or an Indian tribe or tribal organization that is consistent with the requirements of 25, section 1616l(a) and (b) of the United States Code who can perform a wide range of duties within the worker s scope of certified practice in health programs of an Indian tribe or tribal organization to improve access to quality care for American Indians and Alaska Natives and their families and communities. (4) Fee-for-service means the state s medicaid program for which payments are made under the state plan in accordance with the fee-for-service payment methodology. (4) Indian Health Service means the federal agency within the U.S. Department of Health and Human Services. (5) Indian health care provider means a health care program operated by the Indian Health Service or by an Indian tribe, tribal organization, or urban Indian organization as those terms are defined in paragraph 4 of title 25, section 1603 of the United States Code. 2 (6) Indian tribe or tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or group or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as eligible for the special programs and services Draft Washington Health Care Improvement Act Page 3 of 34
provided by the United States to Indians because of their status as Indians. 3 (7) Medicaid managed care entity means a managed care entity as defined in paragraph (a)(1)(b) of title 42, section 1396u-2 of the United States Code, which includes behavioral health organization as established by chapter 71.24 RCW. (8) Traditional healing services means culturally appropriate healing methods developed and practiced by generations of tribal healers who apply methods for physical, mental and emotional healing. The array of practices provided by traditional healers are in accordance with an individual tribe s established and accepted traditional healing services. 4 (9) Tribal organization has the meaning set forth in title 25, section 5304 of the United States Code. 5 (10) Urban Indian 6 means any individual who resides in an urban center and is (a) a member of a tribe terminated since 1940 and those tribes recognized now or in the future by the state in which they reside, or who is a descendant, in the first or second degree, of any such member; or (b) an Eskimo or Aleut or other Alaska Native; or (c) considered by the Secretary of the Interior to be an Indian for any purpose; or (d) considered by the Secretary of Health and Human Services to be an Indian for purposes of eligibility for Indian health services, including as a California Indian, Eskimo, Aleut, or other Alaska Native. (11) Urban Indian health program means an urban Indian organization, as defined by 25 U.S.C. 1603(29), that is operating a facility delivering health care. NEW SECTION. Sec. 3. Consultation and Engagement Requirements. Draft Washington Health Care Improvement Act Page 4 of 34
(1) The tribal consultation policy of the authority will apply to all medicaid matters, including medicaid state plan amendments, waivers, and program-related contracts. Under this consultation policy, the authority will provide tribes and Indian health care providers the opportunity and resources to be fully informed of all medicaid waivers and state plan amendments and their impacts on tribes, Indian health care providers and American Indians and Alaska Natives. The authority will give tribes and Indian health care providers sufficient information to determine the impacts of these medicaid waivers and state plan amendments on their individual health care delivery systems. The authority will consult with the tribes and Indian health care providers and seek advice regarding any medicaid managed care contracts between the state and a medicaid managed care entity. (2) State agencies will consult with tribes and confer with urban Indian health programs in the design and implementation of health transformation initiatives to assure coordination between Indian and non-indian health systems and will include approaches focused on addressing the needs of American Indian and Alaska Native people. NEW SECTION. Sec. 4. Governor s Indian Health Council. 7 (1) It is the intent of the Washington state legislature to implement the national policy of Indian self-determination and to ensure the highest possible status for American Indians and Alaska Natives by providing resources necessary to effect this policy. In meeting the intent of chapter 70, Laws of 20XX, the legislature creates the governor s Indian health council. This council shall create an action plan to raise the health status of American Indians and Alaska Natives to at least the levels Draft Washington Health Care Improvement Act Page 5 of 34
set forth in the goals contained within the Healthy People 2020 initiative or successor objectives. (2) In collaboration with staff whom the authority may assign, the authority shall assist the governor by convening and providing assistance to the council. The council shall consist of the following representatives: (i) The state agencies shall be represented by their tribal liaisons and other subject-matter relevant managers and staff; (ii) Each tribe shall be represented by an individual designated by tribal council, either the tribe s American Indian Health Commission for Washington State delegate or an individual specifically designated for this role, or his or her designee; (iii) Each Indian Health Service Area office and service unit shall be represented by the chief executive officer or his or her designee; (iv) Each urban Indian health program shall be represented by the chief executive officer, the urban Indian health program s American Indian Health Commission for Washington State delegate, or his or her designee; (v) The American Indian Health Commission for Washington State shall be represented by the executive director or his or her designee; (vi) Northwest Portland Area Indian Health Board shall be represented by the executive director or his or her designee; (vii) One or more representatives from the Washington State House and Senate Committees on Health and Human Services; and (viii) One or more representatives from the Governor s Office. (3) The council will convene to (i) address current or proposed policies or actions that have tribal implications and are unable to be resolved or addressed at the agency level; (ii) facilitate training for agency leadership, staff and legislators Draft Washington Health Care Improvement Act Page 6 of 34
on the Indian health system and tribal sovereignty; (iii)provide oversight of contracting and performance of service coordination organizations or service contracting entities as defined in RCW 70.320.010 in order to address their impacts on services to American Indians and Alaska Natives and relationships with Indian health care providers; and (iv) establish a governor s Indian health reinvestment account committee to provide oversight of the Indian health improvement reinvestment account. (4) The council s meetings, recommendations, and other forms of collaboration support the consultation process but are not a substitute for the requirement for state agencies to conduct consultation under federal and state law. NEW SECTION. Sec. 5. Tribal Engagement Requirements for Accountable Communities of Health. (1) The authority will require as a condition of state funding (including federal funding received through the state) accountable communities of health to(a) provide one seat on the entities governing board for each of the tribes and urban Indian health programs within their region; (b) appoint a tribal liaison within the organization; and (c) establish mutuallyagreed upon written engagement and communication protocols with the tribes and urban Indian health programs within their regions or jurisdictions. The tribal representative and the tribe and the urban Indian health program representative and the urban Indian health program will be exempt from liability for the actions of the accountable communities of health, including its governing board. NEW SECTION. Sec. 6. Tribal Engagement Requirements for Service Coordination or Service Contracting Entities. Draft Washington Health Care Improvement Act Page 7 of 34
(1) As a condition of state funding, service coordination organizations or service contracting entities as defined in RCW 70.320.010 shall: (a) appoint a tribal liaison within the organization; (b) establish mutually-agreed upon written engagement and communication protocols with the tribes and urban Indian health programs within their regions or jurisdictions; and (c) follow recommendations from the governor s Indian health council regarding services to American Indians and Alaska Natives and relationships with Indian health care providers. (2) Amend RCW 71.24.300(8) as follows: Each behavioral health organization shall appoint a behavioral health advisory board which shall review and provide comments on plans and policies developed under this chapter, provide local oversight regarding the activities of the behavioral health organization, and work with the behavioral health organization to resolve significant concerns regarding service delivery and outcomes. The department shall establish statewide procedures for the operation of regional advisory committees including mechanisms for advisory board feedback to the department regarding behavioral health organization performance. The composition of the board shall be broadly representative of the demographic character of the region and shall include, but not be limited to, representatives of consumers of substance use disorder and mental health services and their families, law enforcement, and, where the county is not the behavioral health organization, county elected officials, and tribes and urban Indian health programs located within the behavioral health organization s region and who request representation on the board. Composition and length of terms of board members may differ between behavioral health organizations but shall be included in each behavioral health organization's contract and approved by the secretary. Draft Washington Health Care Improvement Act Page 8 of 34
NEW SECTION. Sec. 7. Amend RCW 70.05.030 Tribal Representation on Local Health Boards. Amend RCW 70.05.030 as follows: In counties without a home rule charter, the board of county commissioners shall constitute the local board of health, unless the county is part of a health district pursuant to chapter 70.46 RCW. The jurisdiction of the local board of health shall be coextensive with the boundaries of said county. The board of county commissioners may, at its discretion, adopt an ordinance expanding the size and composition of the board of health to include elected officials from cities, and towns, and tribal governments and persons other than elected officials as members so long as persons other than elected officials do not constitute a majority. An ordinance adopted under this section shall include provisions for the appointment, term, and compensation, or reimbursement of expense. NEW SECTION. Sec. 8. Amend RCW 70.46.020 Tribal Representation on Districts of two or more counties Health Board. Amend RCW 70.46.020 as follows: Health districts consisting of two or more counties may be created whenever two or more boards of county commissioners shall by resolution establish a district for such purpose. Such a district shall consist of all the area of the combined counties. The district board of health of such a district shall consist of not less than five members for districts of two counties and seven members for districts of more than two counties, including two representatives from each county who are members of the board of county commissioners and who are appointed by the board of county commissioners of each county within the district, and shall have a jurisdiction Draft Washington Health Care Improvement Act Page 9 of 34
coextensive with the combined boundaries. The boards of county commissioners may by resolution or ordinance provide for elected officials from cities, and towns, and tribes and persons other than elected officials as members of the district board of health so long as persons other than elected officials do not constitute a majority. A resolution or ordinance adopted under this section must specify the provisions for the appointment, term, and compensation, or reimbursement of expenses. Any multicounty health district existing on *the effective date of this act shall continue in existence unless and until changed by affirmative action of all boards of county commissioners or one or more counties withdraws [withdraw] pursuant to RCW 70.46.090. NEW SECTION. Sec. 9. Amend RCW 70.46.031 Tribal Representation on Districts of one county Health Board Membership. Amend RCW 70.46.020 as follows: A health district to consist of one county may be created whenever the county legislative authority of the county shall pass a resolution or ordinance to organize such a health district under chapter 70.05 RCW and this chapter. The resolution or ordinance may specify the membership, representation on the district health board, or other matters relative to the formation or operation of the health district. The county legislative authority may appoint elected officials from cities, and towns, and tribes, and persons other than elected officials as members of the health district board so long as persons other than elected officials do not constitute a majority. Any single county health district existing on *the effective date of this act shall continue in existence unless and until Draft Washington Health Care Improvement Act Page 10 of 34
changed by affirmative action of the county legislative authority. NEW SECTION. Sec. 10. Amend RCW 38.52.040(1) Tribal Representation on Emergency Management Council. Amend RCW 38.52.040(1) as follows: There is hereby created the emergency management council (hereinafter called the council), to consist of not more than seventeen members who shall be appointed by the adjutant general. The membership of the council shall include, but not be limited to, representatives of city, and county, and tribal governments, sheriffs and police chiefs, the Washington state patrol, the military department, the department of ecology, state and local fire chiefs, seismic safety experts, state and local emergency management directors, search and rescue volunteers, medical professions who have expertise in emergency medical care, building officials, and private industry. The representatives of private industry shall include persons knowledgeable in emergency and hazardous materials management. The council members shall elect a chair from within the council membership. The members of the council shall serve without compensation, but may be reimbursed for their travel expenses incurred in the performance of their duties in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended. NEW SECTION. Sec. 11. Indian Health Improvement Reinvestment Account. The Indian health improvement reinvestment account is created in the state treasury. Moneys in the account may be expended solely for improving outcomes related to the following: (a) reducing health inequities of American Indians an Alaska Natives Draft Washington Health Care Improvement Act Page 11 of 34
in the state; and (b) increasing access to quality and culturally appropriate health care for American Indians and Alaska Natives in the state. (1) The following amounts will be deposited into the Indian health improvement reinvestment account: (a) all savings to the state general fund resulting from the 100% federal medical assistance percentage applicable to services which are received through an Indian Health Service facility whether operated by the Indian Health Service or by an Indian tribe or tribal organization pursuant to paragraph (b) of title 42, section 1396d of the United States Code; provided that the authority and the department of social and health services shall pursue such savings for medicaid managed care premiums on an actuarial basis and in consultation with tribes; (b) 12% of all state annual funding allocated to behavioral health organizations and behavioral health service organizations; and (c) any other public or private funds appropriated to or deposited in the account. (2) The state will work with the tribes and Indian health care providers to develop a tracking and data reporting system to track claims and revenue generated under Sec. 1(a). (3) The governor s Indian health reinvestment account committee shall be responsible to provide oversight over the Indian health improvement reinvestment account. The tribal representatives and Indian health care provider representatives of the committee shall determine which projects should receive funding from the Indian health improvement reinvestment account, in what amounts, and under what reporting requirements. This committee shall consist of the following representatives: (a) Each federally recognized tribe in the state of Washington shall be represented in a voting capacity by an individual designated by tribal council, either the tribe s Draft Washington Health Care Improvement Act Page 12 of 34
delegate to the American Indian Health Commission for Washington State or an individual specifically designated for this role by the tribal council; (b) Each urban Indian health program shall be represented in a voting capacity by an individual designated by the governing board of the program, either the program s delegate to the American Indian Health Commission for Washington State or an individual specifically designated for this role by the board of the program; (c) Each Indian Health Service unit shall be represented in a non-voting capacity by the chief executive officer or his or her designee who shall also be an officer of the Indian health service unit; (d) One or more representatives from the office of financial management; (e) The American Indian Health Commission for Washington State shall be represented in a non-voting capacity by the executive director or an individual specifically designated for this role by the American Indian Health Commission for Washington State; and (f) The Northwest Portland Area Indian Health Board shall be represented in a non-voting capacity by the executive director or an individual specifically designated for this role by the governing board of the Northwest Portland Indian Area Health Board. (3) The Indian health reinvestment account committee will determine expenditures of funds in the Indian health improvement reinvestment account for one or more of the following programs or activities: (a) Evaluation and treatment centers operated by a tribe or tribal organization; Draft Washington Health Care Improvement Act Page 13 of 34
(b) Third-party administrative entity to provide, arrange, and make payment for services for American Indian and Alaska Natives enrolled in the state s medicaid fee-for-service program; (c) Medicaid fee-for-service rate enhancement for providers who are trained in providing trauma-informed and culturally appropriate services to American Indians and Alaska Natives; (d) Psychiatric services, including medication consultation, provided by child and adult psychiatrists, and psychiatrists certified in addiction or geriatric psychiatry; (e) Designated crisis responders who are designated by the state behavioral health authority in consultation with specific tribes; (f) Licensing, training, and certification of designated crisis responders who are designated by the state behavioral health authority in consultation with specific tribes; (g) Traditional healing services; (h) Development of a community health aide program, including a community health aide certification board for the state consistent with title 25, section 1616l(a) and (b) of the United States Code; (i) Services of a community health aide program consistent with title 25, section 1616l of the United States Code, including community health aides, behavioral health aides, and dental health aide therapists, and other types of aides for which certifications standards are established and enforced by an Indian Health Service or tribal community health aide program certification board; (j) Health information technology capability within tribes and urban Indian health programs to assure the technological capacity to (i) produce sound evidence for Indian health care provider best practices; (ii) effectively coordinate care Draft Washington Health Care Improvement Act Page 14 of 34
between Indian health care providers and non-indian health care providers; (iii) provide interoperability with state claims and reportable data (e.g., immunizations, reportable conditions, etc.) systems; and (iv) support patient-centered medical home models, including sufficient resources to purchase and implement certified electronic health record systems (e.g., hardware, software, training, staffing); (k) Indian health care provider care coordination administrative duties to mitigate barriers to access to care for American Indians and Alaska Natives. Such duties include, but are not limited to: (i) follow-up of referred appointments; (ii) routine follow-up care for management of chronic disease; (iii) transportation; and (iv) increasing patient understanding of provider instructions. (l) Indian epidemiology centers to create a system of epidemiological analysis that meets the needs of the state s American Indian and Alaska Native population; and (m) Other health care services and public health services that contribute to reducing health inequities American Indians and Alaska Natives in the state and increasing access to quality, culturally appropriate health care for American Indians and Alaska Natives in the state. (4) The state shall not subject any funds in the Indian health improvement reinvestment account to any legislative or executive encumbrance without prior approval of the governor s Indian health council. NEW SECTION. Sec. 12. Indian Health Care Provider Crisis Coordination and Commitment. 8 (1) Add new section to RCW 71.05.150 as follows: An Indian tribe shall have jurisdiction exclusive to the state as to any involuntary commitment of an Indian to an evaluation and Draft Washington Health Care Improvement Act Page 15 of 34
treatment facility located within the boundaries of that tribe, except where such jurisdiction is otherwise vested in the state by existing federal law. 9 (2) Add new section to RCW 71.05.150 as follows: In any state court proceeding for the involuntary treatment of an Indian to an evaluation and treatment facility located outside the boundaries of the Indian s tribe, the Indian s tribe shall have a right to intervene at any point in the proceeding. 10 (3) Add new section to RCW 71.05.150 as follows: The courts of this state shall give full faith and credit to the public acts, records, judicial proceedings and judgments of any Indian tribe applicable to proceedings under the Involuntary Treatment Act. 11 (4) Add new section to RCW 71.05.150 as follows: Pursuant to a tribal court s jurisdiction under subsection (2), an evaluation and treatment facility must treat a tribal court order of involuntary commitment on the same basis as a state court order for involuntary commitment regardless of whether the evaluation and treatment facility is located outside the jurisdiction of the tribe who issued the order. (5) Add new section to RCW 71.05.150 as follows: Decisions regarding discharge or release of a patient committed pursuant to this section shall be made by the evaluation and treatment facility providing involuntary treatment. Prior to discharge or release, the evaluation and treatment facility shall provide reasonable notice to the tribal court that issued the involuntary commitment order of the facility's intention to discharge or release a patient. Any necessary outpatient followup and transportation for the patient to the jurisdiction of the tribal court, within the time set forth in the notice, shall be provided for in an intergovernmental agreement between the tribe and the state. Draft Washington Health Care Improvement Act Page 16 of 34
(6) The authority shall ensure that inpatient psychiatric and evaluation and treatment beds are available to American Indian and Alaska Natives patients on at least the same proportionate basis as the American Indian and Alaska Native population is to the medicaid population. The authority shall provide a report on psychiatric treatment and evaluation and bed utilization for American Indians and Alaska Natives. The report shall be available for review by the tribes, urban Indian health programs, and the American Indian Health Commission for Washington State. (7) Amend RCW 71.05.020 (13) "Designated crisis responder" means a mental health professional appointed by a tribe or the behavioral health organization to perform the duties specified in this chapter. (8) Medicaid managed care entities will accept assessments and evaluations from Indian health care providers completed by a physician for purposes of treatment determinations. NEW SECTION. Sec. 13. Medicaid Reimbursement for Indian Health Care Providers and Services to American Indians and Alaska Natives. (1) The United States funds the state of Washington at 100% federal medical assistance percentage for medicaid services provided through an Indian health provider as part of the federal government s responsibility to provide health care to American Indians and Alaska Natives. This trust responsibility ensures that 100% of the Medicaid costs for American Indians and Alaska Natives are paid for by federal government. State administration of medicaid services to American Indians and Alaska Natives shall be consistent with the fulfillment of the trust responsibility to provide health care to American Indians Draft Washington Health Care Improvement Act Page 17 of 34
and Alaska Natives including removing barriers to their participation in medicaid programs. (2) The authority will reimburse tribes and Indian Health Service facilities at the applicable encounter rate published annually in the Federal Register by the Indian Health Service or the rate specified in the medicaid state plan for services provided to non-american Indian and non-alaska Native patients including medical, dental and behavioral health services provided to clinical family members of American Indians and Alaska Natives. (3) The authority will, subject to federal restrictions, reimburse Indian health care providers the Indian Health Services outpatient encounter rate for up to five outpatient visits per medicaid beneficiary per calendar day for professional services. (4) The legislature recognizes that access to traditional healing services and culturally appropriate care are essential components to maintaining and sustaining health and wellness for American Indians and Alaska Natives. The authority shall pursue the medicaid encounter rate reimbursement of traditional healing services. If traditional healing services are not eligible for medicaid encounter rate reimbursement, the authority shall pursue medicaid fee-for-service reimbursement. If neither the medicaid encounter rate nor the fee-for-service reimbursement is available for traditional healing services, the authority will seek a member benefit allowance provided as an added value benefit to eligible American Indians and Alaska Natives through the authority s medicaid program. 12 (5) The authority will, subject to federal restrictions, provide medicaid reimbursement up to one hundred percent for community health aide services provided by a community health aide certified under an Indian Health Services or tribal Draft Washington Health Care Improvement Act Page 18 of 34
community health aid program are eligible for medicaid reimbursement. The authority will not require, as a condition of reimbursement, additional licensure and/or certification of such community health aides who are certified under an Indian Health Services or tribal community health aide program. NEW SECTION. Sec. 14. Medicaid Fee-for-Service Enhancement. (1) American Indians and Alaska Natives shall be enrolled in the state medicaid fee-for-service system; provided that the authority shall enable American Indian and Alaska Natives beneficiaries to enroll in medicaid managed care. American Indians and Alaska Natives will be eligible to select an Indian health care provider or a fee-for-service provider as their behavioral health care provider and/or their physical health provider. 13 American Indians and Alaska Natives will not be autoassigned into medicaid managed care. (2) The authority will provide notice to American Indian and Alaska Native medicaid enrollees explaining that American Indians and Alaska Natives may choose to opt-in to a managed care plan. 14 (3) The authority will contract with a third-party administrator to: (a) provide, arrange, and make payment for services for American Indians and Alaska Natives through the state medicaid fee-for-service system; (b) recruit from existing tribes purchased and referred care program networks; (c) provide and arrange for claims payable out of catastrophic health emergency fund and/or purchased and referred care at medicare-like rates; (d) provide or contract with Indian health care providers to provide coordination of benefits for American Indian and Alaska Draft Washington Health Care Improvement Act Page 19 of 34
Native clients and repricing of purchased and referred care services; (e) contract with Indian health care providers to provide services where possible; (f) prepare report to Indian health care providers and to the authority on various measures agreed upon with Indian health care providers; (g) provide assistance with American Indian and Alaska Native and non-american Indian and Alaska Native client eligibility to receive care at different Indian health care providers; (h) maintain updated knowledge of Indian health care provider eligibility requirements; (i) maintain an updated list from the Northwest Tribal Registry from the Northwest Portland Area Indian Health Board; (j) if client is not on Northwest Tribal Registry, validate client according to Indian Health Services requirements; (k) assign clients to Indian health care provider patientcentered medical homes; (l) provide training for providers and staff on how to deliver culturally appropriate services; (m) support bringing specialist services to Indian health care providers rather than sending patients to specialists; and (m) monitor timeliness of access to care for referrals to non-indian health care providers. (4) The authority will provide technical assistance to Indian health care providers to develop networks that utilize federally qualified health center rates and purchased and referred care rates for services provided by non-indian health care specialty providers within the fee-for-service system and managed care programs. Draft Washington Health Care Improvement Act Page 20 of 34
NEW SECTION. Sec. 15. Risk Adjustment Methodology for Performance Measures Committee. Add new Section (8) to RCW 41.05.690: Because performance measures are publicly reported and can be integrated in financial incentive programs or value-based payment models, it is important that they accurately convey relative provider performance and appropriately consider providers patient populations. To control for the effect of factors outside of the control of providers, including patient-related factors, the committee shall establish a risk adjustment methodology that risk adjusts performance measure results when calculating results. 15 Add new Section (9) to RCW 41.05.690: The committee shall identify a range of tools and policies that can address potential unintended consequences resulting from the use of performance measures including, but not limited to, the following: (a) Identifying and adequately paying for non-medical support services that have been shown to improve patient outcomes for people who face economic and social barriers to good health; (b) On a targeted basis, financially rewarding improvement in quality performance more strongly than absolute goals; (c) Comparing the performance of clinics that have similar features and see similar types of patients; and (d) Examining the unmeasured impact of patient-complexity factors that include a broader range of socio-demographic characteristics (e.g. patients facing housing and food insecurity, are suffering from historical trauma, or are more likely to experience disparities in health outcomes). Draft Washington Health Care Improvement Act Page 21 of 34
NEW SECTION. Sec. 16. Risk Adjustment Methodology Medicaid Value-Based Contracting. (1) Add a new section to RCW 70.320.020 as follows The authority and the department will develop a risk adjustment methodology 16 for all medicaid enrollees, including American Indian and Alaska Native enrollees. The authority and the department will ensure that performance measures accurately convey relative provider performance and appropriately consider providers patient populations. To control for the effect of factors outside of the control of providers, including patientrelated factors, the authority shall establish a risk adjustment methodology that risk adjusts performance measure results when calculating results. (2) Add a new section to RCW 70.320.020 The authority and the department shall identify a range of tools and policies that can address potential unintended consequences resulting from the use of performance measures including, but not limited to, the following: (a) Identifying and adequately paying for non-medical support services that have been shown to improve patient outcomes for people who face economic and social barriers to good health; (b) On a targeted basis, financially rewarding improvement in quality performance more strongly than absolute goals; (c) Comparing the performance of clinics that have similar features and see similar types of patients; and (d) Examining the unmeasured impact of patient-complexity factors that include a broader range of socio-demographic characteristics (e.g. patients facing housing and food insecurity, are suffering from historical trauma, or are more likely to experience disparities in health outcomes). Draft Washington Health Care Improvement Act Page 22 of 34
NEW SECTION. Sec. 17. Medicaid Managed Care Entity Requirements. (1) The authority will require medicaid managed care entities to pay directly to Indian health care providers the applicable encounter rate published annually in the Federal Register by the Indian Health Service or the rate specified in the medicaid state plan. For any Indian health care provider that does not have a published encounter rate, medicaid managed care entities must pay the amount the Indian health care provider would receive if the services were provided under the state plan s fee-for-service payment methodology. (2) Medicaid managed care entities must treat every Indian health care provider as an in-network provider, whether participating or not, to ensure timely access to services for Indian enrollees eligible to receive services from such providers. 17 Medicaid managed care entities will include all Indian health care providers on any in-network provider lists via their websites and through their customer service lines. The authority will provide medicaid managed care entities with an updated Indian health care provider list. (3) Medicaid managed care entities shall ensure that American Indian and Alaska Native enrollees may (a) obtain covered services from any Indian health care provider, regardless of whether the Indian health care provider participates in the network of the medicaid managed care entities; and (b) choose an Indian health care provider as his or her primary care provider if he or she is eligible to receive primary care services from that Indian health care provider and that Indian health care provider is participating as an innetwork provider. 18 (4) Medicaid managed care entities will include an Indian health care provider contract addendum to every contract between Draft Washington Health Care Improvement Act Page 23 of 34
the medicaid managed care entity and an Indian health care provider. This addendum will include the following: (a) the Model Medicaid and Children s Health Insurance Program (CHIP) Managed Care Addendum for Indian Health Care Providers, as may be amended by the Centers for Medicaid and Medicare from time to time; 19 (b) reference to the separate issue resolution mechanism maintained by the authority under subsection 15 of this section; and (c) additional terms that are approved by the Indian health care provider and the medicaid managed care entity. (5) Each medicaid managed care entity will offer and negotiate contracts in good faith to all Indian health care providers, including any tribal care coordination, transportation, or related providers. 20 Indian health care providers are not required to contract with a medicaid managed care entity. 21 To be offered in good faith, a medicaid managed care entity must offer contract terms comparable to terms that it offers to a similarly-situated non-indian health care provider, except for terms that would not be applicable to an Indian health care provider, such as by virtue of the type of services that an Indian health care provider provides. The medicaid managed care entity will provide verification of such offers on request for the authority to verify compliance with this provision. 22 In the event that an medicaid managed care entity and an Indian health care provider fail to reach an agreement within ninety (90) days from the start of negotiations and the Indian health care provider submits a written request to the authority for a consultation with the medicaid managed care entity, the authority will facilitate an in-person meeting with the medicaid managed care entity and the Indian health care provider in Olympia within thirty (30) days from the date of the Indian health care providers request in an effort to resolve differences and facilitate an agreement. 23 Draft Washington Health Care Improvement Act Page 24 of 34
(6) Medicaid managed care entities will pay every Indian health care provider for covered services provided to American Indian and Alaska Native enrollees who are eligible to receive services from that Indian health care provider as follows: (a) When an Indian health care provider is not enrolled in medicaid as a federally qualified health center, regardless of whether or not it participates in the network of the medicaid managed care entity, the medicaid managed care entity will pay the Indian health care provider the full applicable Indian Health Services encounter rate published annually in the Federal Register by the Indian Health Service, or in the absence of a published encounter rate, the amount it would receive if the services were provided under medicaid fee-for-service (such amount, the applicable Indian health care provider rate ) provided that, when the amount an Indian health care provider receives from the medicaid managed care entity is less than the full applicable Indian health care provider rate, the authority will make a supplemental payment to the Indian health care provider to make up the difference between the amount the medicaid managed care entity pays and the amount the Indian health care provider would have received under medicaid fee-forservice or the applicable encounter rate. 24 (b) When an Indian health care provider is enrolled in medicaid as a federally qualified health center and is a participating provider of the medicaid managed care entity, the medicaid managed care entity will pay the Indian health care provider at a rate negotiated between the medicaid managed care entity and the Indian health care provider or, in the absence of a negotiated rate, at a rate not less than the level and amount of payment that the medicaid managed care entity would make for the services to a participating provider which is a Federally Qualified Health Center but not an Indian health care provider. 25 Draft Washington Health Care Improvement Act Page 25 of 34
(c) The United States (including the Indian Health Service), each tribe, and each tribal organization has the right to recover from liable third parties, including the medicaid managed care entity, notwithstanding network restrictions, pursuant to 25 U.S.C. 1621e. 26 (d) Any contract between the Health Care Authority, and/or the Department of Social and Health Services and a medicaid managed care entity must require that as a condition of receiving payment under such contract, the medicaid managed care entity agree to make prompt payment to Indian health care providers, whether such Indian health care providers are participating providers or non-participating providers. (e) A medicaid managed care entity shall not require prior authorization for any services provided by an Indian health care provider to an American Indian or Alaska Native enrollee by referral from an Indian health care provider. 27 (7) A medicaid managed care entity will accept referrals by an Indian health care provider, regardless of whether the Indian health care provider participates in the network of the medicaid managed care entity, for an American Indian and Alaska Native enrollee to receive services from a network provider without requiring prior authorization or a referral from a participating network provider for the same or substantially similar service. 28 A medicaid managed care entity shall not require documentation from an Indian health care provider that is more burdensome than documentation required from non-indian health care providers and/or non-american Indian or Alaska Native enrollees. (8) Medicaid managed care entities must provide only the services requested by the Indian health care provider and/or the American Indian or Alaska Native enrollee and maintain the Indian health care provider as the American Indian or Alaska Native enrollee s medical home through care coordination with Draft Washington Health Care Improvement Act Page 26 of 34
the Indian Health Care Provider including the Indian health care provider s purchased and referred care program. The medicaid managed care entity will provide non-indian health care providers with the authority s written guidance on the critical role played by Indian health care providers for the care of American Indian and Alaska Native enrollees. Subject to the American Indian and Alaska Native enrollee s release of information, the medicaid managed care entity will require non- Indian health care providers to deliver progress notes, including any referrals made, to the American Indian or Alaska Native enrollee s Indian health care provider medical home. (9) Medicaid managed care entities will require staff to receive, at least once per calendar year, Indian health care delivery system and cultural humility training that is applicable to the respective American Indian and Alaska Native communities they serve. Each medicaid managed care entity will provide written documentation of efforts to obtain this training from tribe(s) and urban Indian health programs in the medicaid managed care entity s service area, the American Indian Health Commission for Washington State, the Indian Policy Advisory Committee, or the Department of Social and Health Services Office of Indian Policy. (10) Each medicaid managed care entity will develop protocols with each tribe in the medicaid managed care entity s service area for accessing tribal land to provide crisis services, including coordination of outreach and debriefing of crisis review and outcome with the Indian health care provider. The protocols will include agreed upon timeframes and participation for debrief and review, in compliance with Health Insurance Portability and Accountability Act and 42 C.F.R. Part 2 requirements. Draft Washington Health Care Improvement Act Page 27 of 34
(11) To the extent permitted by law, medicaid managed care entities will make reasonable efforts to require participating psychiatric hospitals and evaluation and treatment facilities to notify and coordinate discharge planning with Indian health care providers for Indian Health Service eligible American Indian and Alaska Native clients. (12) Each medicaid managed care entity must designate a tribal liaison to facilitate resolution of any issue between a medicaid managed care entity and an Indian health care provider, including but not limited to billing and provider enrollment and/or credentialing. The tribal liaison s function may be an additional duty assigned to existing medicaid managed care entity staff. 29 The medicaid managed care entity will document with the authority every such issue presented by an Indian health care provider or identified by the tribal liaison. The medicaid managed care entity will make the tribal liaison available for training by tribes and urban Indian health programs in the medicaid managed care entity s service area, the Indian Policy Advisory Committee of the Department of Social and Health Services, or the American Indian Health Commission for Washington State. 30 (13) The authority will establish a resolution process for each Indian health care provider to submit complaints to the authority regarding unresolved issues, including, but not limited to, crisis coordination between the Indian health care providers and a medicaid managed care entity. The authority will facilitate resolution directly with the medicaid managed care entity. The medicaid managed care entity will include reference in any contract between the medicaid managed care entity and the Indian health care provider to the resolution process maintained by the authority. Prior to the development of any plan with an Indian health care provider that is required by Draft Washington Health Care Improvement Act Page 28 of 34
the state agreement with the medicaid managed care entity, the medicaid managed care entity will meet with the authority and the Indian health care provider to identify and resolve issues related to the medicaid managed care entity s performance of services under its agreement with the authority. (14) A medicaid managed care entity will be subject to corrective action and penalties against the medicaid managed care entity by the authority if the medicaid managed care entity fails to (i) perform any obligation under the medicaid managed care entity state agreement or the requirements within this section; or (ii) ensure that American Indian and Alaska Natives are afforded access to care, rights, and benefits on par with all other medicaid managed care entity enrollees. (15) To the extent that such reporting does not risk exposure of personal information, the authority will, in consultation with tribes and conferral with Indian health care providers, prepare reports on Indian health care providers and the American Indian and Alaska Native population using data on American Indian and Alaska Native enrollment and the Healthcare Effectiveness Data and Information Set measures that the medicaid managed care entities are required to report to the authority. 1 The authority will provide these reports to each tribe and Indian health care provider within the state. (16) The authority will submit a report to all Indian health care providers in the state detailing its implementation and coordination of efforts with the tribes on managing the care of American Indians and Alaska Natives in a format to be agreed upon by the authority and the tribes and Indian health care Draft Washington Health Care Improvement Act Page 29 of 34