Sam Ennis, J.D. Sonosky, Chambers, Sachse, Endreson & Perry, LLP Revised December 29, 2014

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1 Determining Eligibility for Medicaid and Health Insurance Tax Credits: How to Calculate Your Modified Adjusted Gross Income (MAGI) Presentation for the Tribal Self-Governance Advisory Committee Sam Ennis, J.D. Sonosky, Chambers, Sachse, Endreson & Perry, LLP Revised December 29,

2 What is Modified Adjusted Gross Income? MAGI is a formula used to determine your income for the purposes of certain federal programs. MAGI is combined with your household composition to establish your percentage of the federal poverty level. This percentage governs eligibility for: Medicaid and the Children s Health Insurance Program Advance premium tax credits in the Marketplaces created by the Affordable Care Act Some American Indian and Alaska Native cost-sharing protections Some exemptions from the individual mandate. 2

3 How to Calculate and Apply MAGI 3

4 Presentation Overview Acronyms and Vocabulary Determining Income under MAGI Medicaid and CHIP The General Welfare Doctrine Determining Household Size Under MAGI Practical Uses for MAGI Frequently Asked Questions 4

5 Acronyms and Vocabulary 5

6 Acronyms 101 ACA = Patient Protection and Affordable Care Act AI/AN = American Indian and Alaska Native ANCSA = Alaska Native Claims Settlement Act APTC = Advance Premium Tax Credit CHIP = Children s Health Insurance Program CMS = Centers for Medicare and Medicaid Services 6

7 Acronyms 102 FPL = Federal Poverty Level GWD = The General Welfare Doctrine IHS = Indian Health Service IRS = Internal Revenue Service MAGI = Modified Adjusted Gross Income 7

8 Vocabulary 101 IRS MAGI How the IRS calculates MAGI for the purposes of establishing eligibility for: APTCs AI/AN cost-sharing protections in the Marketplaces Medicaid MAGI How CMS calculates MAGI for the purposes of establishing Medicaid eligibility. 8

9 Vocabulary 102 AI/AN income Categories of income that are specific to AI/ANs. Both Medicaid MAGI and IRS MAGI exclude certain types of AI/AN income. Individual Mandate Requirement that all individuals either obtain a minimum level of health insurance coverage by March 31, 2014 or pay a penalty. Exemptions for (1) members of an Indian tribe, Alaska Native village, or ANCSA regional or village corporation, and (2) anyone who is eligible for IHS services. 9

10 Vocabulary 103 Marketplaces ACA-created website where you can compare private health insurance options, purchase health insurance, apply for Medicaid, and determine eligibility for premium assistance, cost-sharing protections, and individual mandate exemptions. Also called Exchanges. 10

11 Important Note! 11

12 Medicaid MAGI Does Not Apply to Everyone Prior to the ACA, Medicaid eligibility was determined by an income and assets test. For most Americans, the ACA replaced the income and assets test with MAGI. Certain groups of individuals are statutorily excluded from Medicaid MAGI. Their Medicaid eligibility is still determined according to their State s pre-aca income and assets test. 42 C.F.R (j) 12

13 Who is Exempt from Medicaid MAGI? Individuals whose eligibility for Medicaid does not require a determination of income. Individuals receiving Supplemental Security Income; Individuals for whom the State relies on a finding of income made by an Express Lane agency. Individuals ages 65 or older when age is a condition of eligibility. Individuals who are eligible for Medicaid based on blindness or disability. 13

14 Who Else is Exempt from Medicaid MAGI? Individuals requesting coverage for a Medicaid eligibility group that covers: Nursing facility services or an equivalent level of care in another institution Home and community-based services furnished under a waiver or State plan Home health services Personal care services Individuals whose eligibility is being determined solely for the purpose of obtaining Medicare cost-sharing assistance. Individuals whose eligibility is being determined solely during an evaluation of whether they qualify for coverage as medically needy. 14

15 Why Does This Distinction Matter? This presentation covers the distinctions between IRS MAGI and Medicaid MAGI. We will not analyze the eligibility rules for individuals who are exempt from Medicaid MAGI and who remain subject to the pre-aca income and asset test. 15

16 AI/AN Income Exemptions Under Medicaid MAGI 16

17 The MAGI Calculation The IRS calculates IRS MAGI by taking an individual s adjusted gross income (as determined for federal income tax purposes) and adding back the amount of certain tax deductions for: Foreign income and housing costs Tax-exempt interest Social Security and railroad retirement benefits 26 U.S.C. 36B(d)(2)(B) The resulting number is called your modified adjusted gross income. CMS calculates Medicaid MAGI by taking IRS MAGI and deducting additional types of income (including AI/AN income). 42 C.F.R (e) 17

18 How Is Adjusted Gross Income Determined? Adjusted gross income (AGI) = gross income (minus) adjustments AGI gets calculated as part of the regular tax filing process Adjusted gross income appears on Line 37 of IRS Form

19 Formula for Calculating MAGI Under ACA Certain AI/AN income excluded in MAGI calculation for Medicaid eligibility Source of Table: Center for Labor Research and Education, University of California, Berkeley 19

20 Keep in Mind AI/AN income is treated differently under IRS MAGI than it is under Medicaid MAGI. Under IRS MAGI, many AI/AN income exclusions are conditional, and only apply in certain circumstances. Under Medicaid MAGI, AI/AN income exclusions are not conditional. The following discussion of AI/AN income exemptions applies to Medicaid MAGI. A full discussion of the pre-conditions for IRS MAGI exemptions is beyond the scope of this presentation. Please contact the presenter, Sam Ennis for additional materials on the treatment of AI/AN income under IRS MAGI. 20

21 Where Do I List Exempt AI/AN Income? The following slide is a screenshot of Appendix B of the Marketplace applications. Appendix B is where AI/ANs are asked to document their exempt AI/AN income. List any such income in Appendix B to ensure that it is excluded from your Medicaid MAGI. 21

22 Appendix B Indian Income 22

23 Special Note on Medicaid MAGI Gaming Payments Per capita payments from Tribal gaming are taxable and are not excluded from either IRS or Medicaid MAGI. In a Marketplace application, you should include the amounts you receive from Tribal gaming per caps where it asks you to list your Other Types of Income outside of employment wages. Do not list gaming per cap income in Appendix B, which asks for AI/AN income. Appendix B asks about income that is exempt from Medicaid MAGI. Gaming per capita payments are not exempt. 23

24 Exempt AI/AN Income: Summary Distributions from ANCSA Corporations and Settlement Trusts Distributions from trust/reservation property (excludes gaming per capita payments) Income from property and rights related to hunting, fishing, and natural resources Income from the sale and use of cultural/subsistence property Student financial assistance provided by the Bureau of Indian Affairs Any other miscellaneous income that the IRS exempts from taxation (either currently or in the future) 24

25 Exempt AI/AN Income ANCSA Distributions from Alaska Native Corporations and Settlement Trusts (42 C.F.R (e)(3)(i)). Cash distributions from an ANCSA Corporation or settlement trust Stock or bonds issued by an ANCSA Corporation A partnership interest distributed by an ANCSA Corporation, as well as subsequent partnership distributions Land or an interest in land (including land or an interest in land received from an ANCSA Corporation as a dividend or distribution on stock) 25

26 Exempt AI/AN Income Trust Distributions Distributions from any property held in trust, subject to Federal restrictions, located within the most recent boundaries of a prior Federal reservation, or otherwise under the supervision of the Secretary of the Interior (42 C.F.R (e)(3)(ii)). Rents from any such lands and any structures on the land (housing, retail facilities, etc.) Royalties or other compensation received from oil and gas production, mineral extraction, timber harvesting, and similar activities Profits or revenues derived from economic activity on the land, operation of motels, retail outlets, etc. 26

27 Exempt AI/AN Income Natural Resources and Trust Property Distributions and payments from rents, leases, rights of way, royalties, usage rights, or natural resource extraction and harvest from (A) Rights of ownership or possession in property held in trust, subject to Federal restrictions, located within the most recent boundaries of a prior Federal reservation, or otherwise under the supervision of the Secretary of the Interior; or (B) Federally protected rights regarding off-reservation hunting, fishing, gathering, or usage of natural resources; and Distributions resulting from real property ownership interests related to natural resources and improvements (A) Located on or near a reservation or within the most recent boundaries of a prior Federal reservation; or (B) Resulting from the exercise of federally-protected rights relating to such real property ownership interests (42 C.F.R (e)(3)(iii)-(iv)). Profits from the sale, lease, or harvest of mineral, timber, and other such resources Income derived from hunting, fishing, gathering, and harvesting fish, wildlife, and plant resources pursuant to Federally-protected rights, including off-reservation rights 27

28 Exempt AI/AN Income Cultural Property Payments resulting from ownership interests in or usage rights to items that have unique religious, spiritual, traditional, or cultural significance or rights that support subsistence or a traditional lifestyle according to applicable Tribal Law or custom (42 C.F.R (e)(3)(v)). Property sold for use in healing or spiritual ceremonies, such as sage or sweetgrass Sales of artwork, pottery or jewelry with cultural or religious significance, such as traditional American Indian and Alaska Native crafts Handicrafts made by Alaska Natives from fish and wildlife resources taken for personal or family consumption Proceeds of sales of subsistence fish and game 28

29 Exempt AI/AN Income Student Aid Student financial assistance provided under the Bureau of Indian Affairs education programs (42 C.F.R (e)(3)(vi)). Student financial assistance provided under programs in title IV of the Higher Education At of 1965, as amended 29

30 Exempt AI/AN Income Federal Income Tax Exclusions Medicaid MAGI includes all AI/AN income exemptions that the IRS or CMS applied prior to the ACA. For example, per capita shares distributed to Indians pursuant to the Indian Tribal Judgment Funds Use or Distribution Act (25 U.S.C. 1401, et seq.), including interest and investment income earned on Judgment Funds while under administration In the future, any other types of AI/AN income that the IRS excludes from federal taxation is therefore also excluded from Medicaid MAGI. 30

31 The General Welfare Doctrine 31

32 The General Welfare Doctrine - Background Payments from government social benefit programs are excluded from federal income taxation (and both IRS and Medicaid MAGI). Government may be Tribal, federal, state, local, or foreign. Congress codified the doctrine with regard to certain Tribal benefits in the Tribal General Welfare Exclusion Act of 2014, P.L The IRS has outlined specific categories of excluded Tribal income and provided general information about the GWD in Notice and Revenue Procedure

33 The General Welfare Doctrine What Counts? In order to qualify for the GWD, a payments must: Be made pursuant to a governmental program (including Tribal governments) Be for the promotion of the general welfare (based on a showing of need) Not represent compensation for services. Under current rules, the IRS decides whether a payment qualifies for the GWD. Tribal governments or individual AI/ANs cannot make this determination on their own. 33

34 The General Welfare Doctrine Tribal Safe Harbor The 2014 Act specifically excludes from MAGI any income that meets the following qualifications: Provided pursuant to a specific Tribal program with written qualifications Available to any Tribal member who satisfies the program qualifications Distributed without favoring members of the Tribe s governing body Benefits the general welfare and does not compensate for services Is neither lavish nor extravagant (definition pending from the IRS) IRS rulings and procedures also exclude certain specific categories of AN/AI income. 34

35 The General Welfare Doctrine Tribal Considerations GWD applies to payments made from Tribal governments, agencies, and instrumentalities to Tribal members, their spouses, and their dependents. Tribal programs designed to help establish Indian-owned businesses on or near a reservation may classify under GWD. Such payments would not count if made by non-tribal governments. Source of funding used for benefit payments is irrelevant. Revenues may derive from levies, taxes, service fees, Tribal businesses, casinos, etc. Key issue is nature of program, not source of funding. 35

36 The General Welfare Doctrine Exempt Income Summary Housing assistance Education assistance Programs serving elders and individuals with disabilities Cultural and religious programs Transportation programs Disaster relief 36

37 GWD Exemptions Housing Assistance Programs for a Tribal member s principal residence that: Assist in making mortgage or rent payments for residences on or near a reservation Enhance habitability of housing, such as by remedying water, sewage, sanitation service, or heating or cooling issues Provide basic housing repairs or rehabilitation Assist in paying utility bills and charges (such as water, electricity, and gas). 37

38 GWD Exemptions Education Assistance Providing students with: Transportation to and from school Tutors School supplies, including clothing, backpacks, laptop computers, musical instruments, and sports equipment Providing student tuition or room and board payments for: An accredited college or university Educational seminars Vocational education Technical education Adult education, continuing education, and alternative education Programs designed to promote job placement or training, including allowances for: Expenses for interviewing or training away from home (such as travel, auto expenses, lodging, and food) Tutoring Clothing (suits, uniforms, etc.) 38

39 GWD Exemptions Elder and Disability Care Programs for individuals who are either (1) age 55 and older or (2) physically challenged, including: Meals through home-delivered meals programs or at a community center Home care, such as assistance with preparing meals or doing chores; Day care outside the home Local transportation assistance Travel expenses for doctor appointments or other medical care Transportation costs and admission fees to attend educational, social, or cultural programs offered by the Tribe or another tribe Improvements to adapt housing to special needs (such as grab bars and ramps) 39

40 GWD Exemptions Cultural and Religious Programs Payment of expenses such as transportation, food, and lodging associated with cultural or religious programs. Cultural, social, or community activities such as pow-wows, ceremonies, and traditional dances Visiting Indian reservations or sites that are culturally and historically significant Payments for the cost of receiving instruction about an Indian tribe s culture, history, and traditions (for example, traditional language, music, and dances) Payment expenses related to bereavement events, such as hosting or attending wakes, funerals, burials, or similar functions The provision of nominally-valuable items of cultural significance, or nominal cash honoraria, to medicine men or women, shamans, or similar religious or spiritual officials to recognize their participation in cultural, religious, and social events 40

41 GWD Exemptions Miscellaneous Programs Bus, taxi, or public transportation fares from a reservation to public facilities (such as medical clinics and grocery stores) Transportation, meals, and lodging for eligible individuals receiving medical care away from home Assistance to individuals in exigent circumstances (such as victims of abuse), including the costs of food, clothing, shelter, transportation, auto repair bills, and similar expenses Relocation and shelter for individuals displaced from their homes due to fire, natural disaster, etc. Emergency bus fare, hotel rooms, or meals for an individual who is stranded off the Indian reservation 41

42 Calculating Household Size 42

43 Why are Households Important? An individual s household is combined with MAGI to calculate that individual s percentage of the FPL. Generally, the combined MAGI of individuals within the household or tax unit determines the household s income. The household s income, translated as a percentage of FPL, determines each individual s eligibility for Medicaid, APTCs, and other programs. CMS and IRS calculate household differently. CMS calculation governs Medicaid eligibility IRS calculation governs eligibility for: APTCs Certain AI/AN cost sharing protections 43

44 Medicaid MAGI: What is a Household? Medicaid MAGI household rules are set out in 42 C.F.R Each person s household is calculated individually under Medicaid MAGI. Members of the same nuclear family can have different household sizes under Medicaid MAGI. 44

45 Medicaid MAGI: What are the Household Categories? Three separate categories for determining Medicaid household size: (1) Tax filers who are not claimed as tax dependents by anyone else (2) People claimed as tax dependents (even if they file their own taxes) (3) A third class ( Category 3 ) comprised of: Non-tax filers who are not claimed as a tax dependent by anyone else; Individuals claimed as a tax dependent by someone other than a spouse or parent; and Individuals ages 19 and under (or, at the option of the State, 21 and under for students) who are either: Living with two parents who do not expect to file a joint tax return; or Claimed as a tax dependent by a non-custodial parent. 45

46 Medicaid MAGI: Who is in Your Household? Tax filers not claimed as a dependent: Yourself Spouse (if filing jointly or living together) Claimed federal income tax dependents. Tax dependents: All members of the household of whoever claims you as a tax dependent Spouse (if living together and not otherwise included) 46

47 Medicaid MAGI: Who is in Your Household? Category 3: Yourself If living with you: Your spouse Your children under Medicaid age (19 years old, or 21 for full-time students at the election of a State) For children under Medicaid age, their siblings under Medicaid age and also parents 47

48 Medicaid MAGI: Pregnant Women If there is a pregnant woman in your household: For the pregnant woman, her household also includes the number of children she expects to deliver. For individuals whose household includes a pregnant woman, each State chooses whether the pregnant woman counts as one person, two people, or one person plus the number of expected children. 48

49 IRS MAGI: Who is in Your Household? A household is comprised of any individual(s) for whom the taxpayer expects to claim a deduction for a personal tax exemption (known as a tax unit ). This includes: The individual taxpayer His or her spouse Dependents, such as children and other relatives who meet certain requirements and do not claim their own exemptions 26 U.S.C. 36B(d); 26 C.F.R. 1.36B-1. 49

50 IRS MAGI Households: Special Considerations Each person within the tax unit has the same household number. However, there can be multiple tax units within the same home. John and Sarah are divorced and have one son, Mike, who lives with Sarah. John claims Mike as a dependent for tax purposes, and Sarah does not. John and Mike s tax unit is two people. Sarah s tax unit is one person. Certain circumstances that can change IRS household status: Birth, adoption, or death of a child Marriage Divorce/legal separation 50

51 Calculating Household Income 51

52 Calculating Household Income Medicaid MAGI The total household income under Medicaid MAGI is the sum of each household member s MAGI, excluding: Children who are (1) included in the household of their natural, adopted, or step parent and (2) who are not expected to file a federal income tax return for that year; and Any other individuals included in a household who (1) expect to be claimed as a tax dependent by another taxpayer and (2) are not expected to file a federal income tax return for that year. 42 C.F.R (d). Because people living in the same house might have different households under Medicaid MAGI, this calculation can differ for members of the same family. 52

53 Calculating Household Income IRS MAGI The total household income under IRS MAGI is the MAGI of the taxpayer, plus the MAGI of every other individual: For whom the taxpayer claim a personal exemption deduction; and Who is required to file a federal income tax return. 42 C.F.R (d). 26 C.F.R. 1.36B-1(d)-(e). 53

54 Why Does Household Income Matter? (All FPL statistics are for contiguous 48 States in 2014, excluding AK/HI) People in Family 100% FPL (in household income) 138% FPL (Medicaid Expansion) 200% FPL (CHIP) 300% FPL (Zero Cost Sharing Plan) 400% FPL (APTC) 1 $11,670 $16,105 $23,340 $35,010 $46,680 2 $15,730 $21,707 $31,460 $47,190 $62,920 3 $19,790 $27,310 $39,580 $59,370 $79,160 4 $23,850 $32,913 $47,700 $71,550 $95,400 5 $27,910 $38,515 $55,820 $83,730 $111,640 6 $31,970 $44,119 $63,940 $95,910 $127,880 7 $36,030 $49,721 $72,060 $108,090 $144,120 8 $40,090 $55,324 $80,180 $120,270 $160,360 Additional Persons $4,060 $5,603 $9,020 $12,180 $18,040 54

55 Frequently Asked Questions 55

56 Frequently Asked Questions Q: Ranching and farming are considered subsistence activities on our reservation. Is this considered excluded subsistence income for the purposes of the Medicaid MAGI exclusion? A: If ranching and farming occur on a reservation, any income derived from these activities is excluded from Medicaid MAGI. Per capita payments for farm and ranch leases on tribal lands or lands that have ever been tribal lands are also excluded from Medicaid MAGI. 56

57 More Frequently Asked Questions Q: If you receive an IRS 1099 form for a certain type of income, is that income automatically considered taxable and included in MAGI? A: No. A 1099 is considered a signpost that indicates earned income, but it can be appealed if you think that it includes tax-exempt AI/AN income. And even if the income is ultimately taxable and included in IRS MAGI, it might still be excluded from Medicaid MAGI. 57

58 Still More Frequently Asked Questions Q: The ACA allows Tribes to pay for their members health insurance premiums in the Marketplace. Are these payments considered taxable income or included in MAGI? A. No. Tribal premium sponsorship payments are neither taxable nor included in Medicaid MAGI. Also, a person receiving sponsorship payments may still receive an APTC despite not personally paying premium costs. 58

59 Even More Frequently Asked Questions Q: My Tribe makes a quarterly payment to enrolled children. Are they taxable and included in MAGI? A: It depends on the purpose of the payment. For example, if it is gaming per capita distribution, then it is both taxable and included in MAGI. If it is a per capita payment from trust resources, then it is neither taxable nor included in MAGI. If it offsets the cost of child care or provided as part of an educational fund, it might be excluded from both taxation and MAGI under the General Welfare Doctrine. 59

60 Somehow More Frequently Asked Questions Q: Is the Alaska Permanent Fund Dividend (PFD) included in MAGI? A: Yes. The PFD is taxable under both IRS and Medicaid MAGI. Adults report the amount under other income on line 21 of their 1040 tax form. Depending on how a child ultimately reports his or her PFD (there are different options for doing so), the child would either report the PFD via his or her own 1040 tax form or else the parent would file an 8814 tax form on the child s behalf. 60

61 Presenter Sam Ennis is an associate in the San Diego office of Sonosky, Chambers, Sachse, Endreson & Perry LLP, which specializes in representing Tribal interests throughout the United States. Mr. Ennis works in all areas of the firm's practice, with a focus on health law and Tribal self-governance. Mr. Ennis graduated with honors from the University of Virginia, and then from the UCLA School of Law, where he was Chief Comments Editor of the UCLA Law Review, interned at the United States Commission on Civil Rights, and participated in the UCLA Tribal Legal Development Clinic. Mr. Ennis is a member of the National Indian Health Board Medicare & Medicaid Policy Committee and has worked in conjunction with the Centers for Medicare and Medicaid Services Tribal Technical Advisory Group. He also serves as a consultant to the National Indian Health Board with regard to training on and implementation of the Affordable Care Act and Indian Health Care Improvement Act. He has authored numerous published articles on various aspects of Federal Indian law. 61

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