The Senate Health Care Reform Legislation

June 12, 2017

In re: the Senate’s health care reform legislation

Dear Senator:

On behalf of the National Council of Urban Indian Health (NCUIH), which represents over forty urban Indian health care programs (UIHPs) across the nation which provide high-quality, culturally-competent care to urban Indians, who constitute more than 70% of the nation’s American Indian/Alaska Native (AI/AN) people, I thank you for your service and to strongly urge to take different approaches than your House colleagues did in crafting the American Health Care Act (AHCA) on several key issues.

“Urban Indian” refers to AI/AN people who do not live on reservations, often because of forced government relocation or lack of economic opportunity. NCUIH was established to represent the interests of UIHPs before the legislative and executive branches and it serves as a resource for UIHPs, providing education and training, in addition to advocating on their behalf.

NCUIH appreciates that the House-passed American Health Care Act (AHCA,
H.R. 1628) preserves the permanent authorization of the Indian Health Care Improvement Act, three Indian-specific provisions in the Affordable Care Act (ACA, aka “Obamacare”)* and seven Indian-specific Medicaid provisions. NCUIH urges the Senate to follow the House’s “hands off” approach on these laws.

However, the AHCA also includes several provisions which are inconsistent with the federal government’s Trust Responsibility to provide health care free of cost to AI/AN people:
Protect the Medicaid Benefit: AI/AN people are disproportionately reliant on Medicaid as a population even though they are a fraction of a percent of the Medicaid budget, but AHCA would reduce federal contributions by as much as $880 billion over ten years. Enrollment of AI/AN people in Medicaid helps to reduce costs for the drastically-underfunded Indian Health Service (IHS).

AHCA would subject the federal government’s Medicaid contribution to per capita caps or block-granting. Under per capita caps, the federal government would pay only a certain amount per enrollee; and under block grants, the federal government’s contribution would be calculated by multiplying a per capita cost for the eligible population by the number of enrollees in the previous year. States are unlikely to increase their own spending to offset the resulting federal reductions. Inevitably, states would narrow eligibility, cut back on benefits, and slash payments to providers.

AHCA exempts from caps and grants those services provided by IHS and Tribal facilities, but not UIHPs. It makes no sense to treat UIHP patients differently than IHS and Tribal patients. Moreover, the adverse impact on health care outcomes for urban Indians from slashing federal Medicaid contributions to states for services provided by UIHPs would be inconsistent with the Trust Responsibility. If the Medicaid program is to be subjected to caps and grants, the Senate should ensure that UIHPs are also exempt. Congress has already stated various times throughout history that the trust responsibility extends beyond the borders of the reservation, and the entire IHS system should be protected.

Even if IHS, Tribes, and UIHPs are exempt from caps and grants, AI/AN people will inevitably be adversely affected because reductions in eligibility and cuts in benefits imposed by the states will apply to their populations generally. Therefore, if Medicaid is to be subjected to caps and grants, the Senate should develop a mechanism to protect services provided by IHS, Tribes, and UIHPs from cutbacks that might otherwise be imposed by the states because of lost federal contributions.

ACA’s Medicaid Expansion allows states to enroll patients with certain low household incomes. Between 2013 and 2015, enrollment of AI/AN people in Medicaid increased by 217,000, or 15%. In significant part because of Medicaid Expansion, the uninsured rate of AI/AN people has dropped 30% since 2010.

AHCA would end Medicaid Expansion in 2020 by scrapping the increased federal contribution for enrollees who experience a gap in coverage of more than a month. The Senate should allow Medicaid Expansion to continue, at least for Indian Country, which could allow for an additional 550,000 uninsured AI/AN people to enroll in the program.

AHCA would allow states to impose work requirements in order to be eligible to enroll in Medicaid, even though AI/AN people experience significant levels of unemployment, both on and off reservations. Moreover, AI/AN people on reservations and in rural areas often have few opportunities for retraining and placement services. If prevented from enrolling in Medicaid because of unrealistic work requirements, AI/AN people will be forced to secure health care from an over-burdened IHS which is already severely rationing services. If states are to be allowed to impose work requirements for Medicaid, the Senate should ensure that AI/AN people are exempt.


Retain Protections Against Cost-Sharing: ACA included at Section 1402(d) protection against the imposition of cost-sharing requirements on AI/AN people with household incomes below 300% of the poverty level in order for them to enroll in health insurance plans. AHCA, however, repealed cost-sharing protections generally. The Indian-specific cost-sharing protection fulfills the federal government’s Trust Responsibility by making it easier for poorer AI/AN people to secure insurance and helps to reduce the financial burden that would otherwise be imposed on IHS. AI/AN families have disproportionately lower incomes (compared to the general population) and thus less money to spend on health care. Free but rationed health care from IHS is already a disincentive to AI/AN people to purchase insurance, and a cost-sharing requirement would only exacerbate the problem. If ACA’s cost-sharing protections are to be scrapped, the Senate should create an exception for AI/AN people.

Finally, NCUIH urges the Senate to use health care reform legislation to help UIHPs stretch further their limited appropriations. IHS spends little more than 1% of its budget on urban Indian health care, and UIHPs do not have access to any other line items. Consequently, UIHPs must raise most of their revenues from other sources.

In fact, UIHPs are innovative public-private partnerships which use their own workforces and outside consultants to provide high-quality, culturally- accessible health care adapted to best serve their communities.

Nevertheless, UIHPs are uniquely disadvantaged comparted to IHS and Tribal facilities with respect to reimbursements and malpractice insurance. The Senate could maximize the value of UIHPs’ limited appropriations simply by treating them the same as IHS and Tribal facilities:

1. Federal Medical Assistance Percentage (FMAP): Currently, the Medicaid FMAP, or the percentage of the cost of Medicaid services paid for by the federal government, for UIHPs is generally below 60%. According to IHS it would cost $2.3 million per annum to extend to UIHPs the same 100% FMAP already provided to IHS and Tribal facilities.

2. IHS-Department of Veterans Affairs (DVA) memorandum of understanding (MoU): This MoU to promote better care for AI/AN veterans has not been implemented for UIHPs. Consequently, IHS and Tribal facilities are fully- reimbursed for care provided to AI/AN veterans, but not UIHPs.

3. Federal Tort Claims Act (FTCA): IHS and Tribal facilities as well as Community Health Centers are granted medical malpractice liability protection under FTCA with the federal government acting as their primary insurer. However, UIHPs are not covered by this law, even though they share many key characteristics. A single UIHP can pay as much as $250,000 per annum for malpractice insurance, a large sum which might instead be spent on treating patients if UIHPs are also covered by FTCA.

UIHPs are model U.S. health care providers, and Congress should encourage their work, make it easier for them to spend precious appropriations on providing services to their patients.

Thank you for your consideration of our views. Please contact Director of Governmental Affairs Francys Crevier at fcrevier@ncuih.org or (202) 544-0344 if you have questions.

Sincerely,

Ashley Tuomi President
National Council of Urban Indian Health

*Three key provisions from ACA would be retained, including Section 2901(b), which makes the Indian Health Service (IHS) the payer of last resort; Section 2902, under which IHS bills Medicare for Part B services; and Section 9021, which excludes health care benefits provided by IHS to eligible individuals from taxable gross income.