[Senate Hearing 108-204]
[From the U.S. Government Publishing Office]
S. Hrg. 108-204
REAUTHORIZATION OF THE INDIAN HEALTH CARE IMPROVEMENT ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
S. 556
TO AMEND THE INDIAN HEALTH CARE IMPROVEMENT ACT TO REVISE AND EXTEND
THAT ACT
__________
JULY 23, 2003
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
88-704 WASHINGTON : 2003
_____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
S. 556, text of.................................................. 2
Statements:
Benjamin, Melanie, chief executive, Mille Lacs Band Assembly,
Onamia, MN................................................. 345
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Dixon, Mim, Dixon & Associates, Boulder, CO.................. 356
Johnson, Hon. Tim, U.S. Senator from South Dakota............ 348
Moose, Samuel, commissioner, Health and Human Services, Mille
Lacs Band Assembly, Onamia, MN............................. 345
Munson, Myra M., esquire, Sonosky, Chambers, Sachse, Miller,
LLP, Juneau, AK............................................ 352
Rolin, Buford L., vice chairman, Poarch Band of Creek
Indians, Atmore, AL........................................ 349
Appendix
Prepared statements:
Benjamin, Melanie............................................ 363
Dixon, Mim................................................... 372
Munson, Myra M. (with attachment)............................ 377
Rolin, Buford L. (with attachment)........................... 366
REAUTHORIZATION OF THE INDIAN HEALTH CARE IMPROVEMENT ACT
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WEDNESDAY, JULY 23, 2003
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to recess, at 10 a.m. in room
485, Russell Senate Building, Hon. Ben Nighthorse Campbell
(chairman of the committee) presiding.
Present: Senators Campbell, Johnson, and Murkowski.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. The Committee on Indian Affairs will be in
session.
Welcome to the third hearing in a series held by the
Committee on S. 556, a bill to Reauthorize the Indian Health
Care Improvement Act. Today we will hear from tribal leaders
and tribal health care experts on issues related to Indian
access to health care and services. The committee will receive
testimony on how Indian access is affected by Medicare,
Medicaid, and other Federal health care programs, and what
improvements are needed to increase Indian access.
[Text of S. 556 follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. In the interest of time, we are going to go
ahead and start with our panel which includes Melanie Benjamin,
chief executive, Mille Lacs Band Assembly, Onamia, MN; Buford
L. Rolin, vice chairman, Poarch Band of Cree Indians, Atmore,
AL; Myra M. Munson, Esq., Sonosky, Chambers, Sachse, Miller &
Munson, LLP, Juneau, AK; and Mim Dixon, Dixon & Associates,
Boulder, CO.
I read all your written testimony this morning. It will all
be included in the record. If you would like to abbreviate or
diverge from that written testimony, feel free to do so.
We will start with Ms. Benjamin.
STATEMENT OF MELANIE BENJAMIN, CHIEF EXECUTIVE, MILLE LACS BAND
ASSEMBLY, ONAMIA, MN, ACCOMPANIED BY SAMUEL MOOSE, COMMISSIONER
OF HEALTH AND HUMAN SERVICES
Ms. Benjamin. Good morning, Chairman Campbell, Vice
Chairman Inouye, and distinguished members of the Senate
Committee on Indian Affairs. I am Melanie Benjamin. I am the
chief executive of the Mille Lacs Band of Ojibwe. Accompanying
me today is Samuel Moose, who is the commissioner of Health and
Human Services. I also brought summer youth as well. This will
be their first opportunity to participate in this hearing.
The Chairman. Are those the young people back here?
Ms. Benjamin. Yes.
The Chairman. We are glad to have them here.
Ms. Benjamin. The Mille Lacs Band is a federally-recognized
tribe of 3,570 members located in East Central Minnesota. As an
elected tribal leader, I have an interest in the general
direction of Federal Indian policy. I am greatly concerned with
the dismal state of health across Indian country, and in
particular, on the Mille Lacs Reservation.
My comments to the Senate Committee on Indian Affairs are
provided from this perspective. At the outset, I wish to
respectfully point out that I am not an expert on health care
issues, nor on Medicaid or Medicare. There are individuals on
this panel who are experts and possess the technical knowledge
to more adequately address these subjects.
Today I will briefly discuss three topics as they relate to
Medicaid and Medicare under Title IV of the Indian Health Care
Improvement Act, sovereignty, the Federal trust responsibility,
and Indian Health disparities. The access to health services
under title IV provisions have a direct connection to the
health disparities in Indian country and must be addressed by
Congress.
When the Indian Health Care Improvement Act was first
enacted in 1976, Congress recognized its trust responsibility
toward the tribes to provide adequate health care. Throughout
the subsequent amendments and reauthorizations of the act, one
of the major underlying policies has been to provide tribes
access to other Federal health care sources, like Medicaid and
Medicare programs that do not face funding limits like our
Indian Health Service programs do.
The intent was and is to improve our health status through
that access. Since then Medicaid and Medicare reimbursement to
tribes, including the Mille Lacs Band, have become a
significant source of revenue for our health care programs and
operations.
Over the last 15 years, the Mille Lacs Band has actively
participated in the formulation of tribal self-governance
policy. We were one of the first 10 self-governance tribes. We
participated in the original demonstration project and the
writing of the permanent acts for BIA and Indian Health Service
self-governance. We have also been on the rulemaking committees
for the implementation of self-governance laws.
Currently, the Mille Lacs Band is an active member of the
Tribal Self-Governance Advisory Committee that advises Federal
agencies on Indian policy matters affecting the self-governance
tribes. The Mille Lacs Band has supported and advocated for
self-governance laws because our philosophy is that we should
be free to govern ourselves and develop our own policies in the
administration of our tribal programs. We should not be
entangled by Federal or State bureaucracy. To us, developing
our own policies is an important exercise of sovereignty.
There are three principles that the Mille Lacs Band of
Ojibwe considers when analyzing Federal programs. First, we
assert that our primary relationship is with the Federal
Government. Second, we retain all sovereignty not expressly
taken away. Therefore, we should have the ability to control
funds reserved for us under Federal law. Third, we should have
equal access to the same funding avenues as States. This third
principle raises the fundamental flaw of the Medicaid and
Medicare programs and the treatment of tribes.
It is my understanding that the design of the Medicaid and
Medicare programs is a Federal-State collaboration. The problem
is that tribes do not fit into the picture at all. This design
flaw makes it very difficult to meet criteria for receiving
reimbursements.
An example is that counties receive an administrative match
from the State for their administrative costs, while tribes
cannot. According to the Mille Lacs Band of Ojibwe's Commission
of Health and Human Services, our inability to recover the
administrative match demonstrates that tribes do not have equal
access to Medicaid and Medicare reimbursements.
The reason is that States determine how their block grants
will be distributed under their own guidelines. As a result,
the Mille Lacs Band and many other tribes lose out on potential
and critical avenues of funding we desperately need. Others on
this panel have addressed this and other legal barriers more
specifically, but from a tribal leader perspective, it is clear
that States and managed care systems have predominance over
tribes under Medicaid and Medicare.
Clearly, the establishment of Medicaid and Medicare
entitlement programs happened at a time in history when the
Congress did not focus on tribal sovereignty. However, today
tribes are treated as governments in Federal legislation and
tribal sovereignty is recognized. Indian people are provided
direct access to Federal programs and funding.
The Mille Lacs Band of Ojibwe receives direct funding for
our Self-Governance Indian Health Service annual funding
agreement. But when it comes to Medicaid and Medicare programs,
it is a different situation. The process of devolution, where
Federal funds in the form of block grants are provided to the
States who then distribute those funds under their guidelines,
has created a framework that leaves the tribes unable to access
needed funds.
It is time to change the Medicaid and Medicare provisions
under title IV of the Indian Health Care Improvement Act to
reflect the new enlightened view of tribal sovereignty and
provide tribes more access to health care services as the act
was originally intended. Through our treaties, Federal
statutes, executive orders, and court decisions, a Federal
trust responsibility has been established and recognized over
the course of dealings with tribes.
The Mille Lacs Band of Ojibwe signed several treaties with
the United States and the provision of proper health care
became an expectation of the Band and an obligation of the
Federal Government. In addition, the Snyder Act of 1921, the
Transfer Fact of 1954, the Self-Determination Act of 1975, the
Indian Health Care Improvement of Act of 1976, as well as the
enactment of the Indian Health Service Self-Governance Act, all
evidence the trust obligations that flow to the tribes from the
Federal Government for the provision of health care.
In spite of the clear legal duty created by these Federal
statutes, the Federal obligation to provide adequate health
care to tribes has never been properly funded. Historically,
this insufficient funding has interfered with our ability to
provide comprehensive health care to Mille Lacs Band members.
According to IHS estimates, the Mille Lacs Band, and all other
tribes in our region, are funded at approximately 30 percent of
need. This means more than two-thirds of our need is not being
met and explains why the status of Indian health on the Mille
Lacs Band Reservation, and many other reservations, is so poor.
I am told that the Federal Government spends nearly twice
as much for a prisoner's health care than it does for Indians.
This fact is an example of why our health status is at the
bottom of every disease category. It seems ironic that Indian
health care, through the Indian Health Service, is not an
entitlement for Indian people when tribes essentially pre-paid
for our health care by ceding millions of acres of land to the
Federal Government.
It seems more ironic that the tribes have problems
accessing the Federal entitlement programs like Medicaid and
Medicare which were designed for all State citizens. This
funding disparity becomes a matter of fairness and equity
because Indian people are also citizens of the States in which
we reside. It is only logical that we should have the same
access to the same services as do other non-Indian citizens.
Given that we have been historically under-funded for our
health care needs, and tribes likely will not receive funding
for the level of need in the next appropriations cycle, the
Federal trust responsibility needs to be taken seriously and
changes made to allow tribes full participation in the existing
entitlement programs of Medicaid and Medicare. It is fair and
it is right.
Finally, I am not going to cite the long and tragic list of
statistics that tell the story of health disparities throughout
Indian country. Instead, I will talk about my own Reservation.
Diabetes is a serious problem in the Mille Lacs community. I do
not know of one family without diabetes among one of their
family members. For many our Band members, it is not a matter
of if they get the disease, but when. Band members are losing
their vision. They are losing their limbs. Many are so close to
needing kidney dialysis treatments.
More alarming is the chronic health conditions occurring in
our children and our youth. They are our future. I have serious
concerns for their long-term health and longevity. I do not
have answers but I do know that adequate and comprehensive
health care is absolutely critical to preserving our tribal
communities. We are fighting to protect our members' lives on
our reservations and in our communities.
If Congress makes the necessary changes to Title IV of the
Indian Health Care Improvement Act, and provides more access to
Federal health care services and funds, it will at least give
us another weapon in the war against health disparities.
Thank you for this opportunity to testify. I would also ask
that my written statement be made part of the record of this
hearing.
The Chairman. Without objection, so ordered.
[Prepared statement of Ms. Benjamin appears in appendix.]
The Chairman. Thank you, Ms. Benjamin.
Senator Johnson, I do not know how tight your schedule is.
Do you have a statement?
STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR FROM SOUTH DAKOTA
Senator Johnson. Mr. Chairman, I just commend you for
holding this very timely hearing. There are few areas where we
have a greater crisis than in health care as we go about the
debate on Medicare and Medicaid within the context of
prescription drug coverage. I think that we have made some real
progress on the Senate side, but it is essential that we
continue to be closely consultative with the tribes. I think
you have an excellent panel here.
I am going to have to excuse myself for some conflicting
obligations that I have, but I will be examining the testimony
closely and look forward to working with you and other members
of the committee to see what we can do. The overall level of
funding, of course, is the first problem. The IHS is funded at
roughly half of what they ought to be funded.
But even beyond that, I think it is proper that we focus on
the role of Medicare-Medicaid third-party payment mechanisms
and what we do to better utilize those resources to live up to
our obligations in Indian country.
I thank you very much.
The Chairman. For the panel's information, members will be
coming and going. Some will not be here. It does not mean they
are not interested in the issue. Every one of us is over-
scheduled with two or three things to do at the same time. It
comes with the territory here. Please understand why some
members are not here.
Let us go ahead with Buford Rolin. Thank you for being
here.
STATEMENT OF BUFORD L. ROLIN, VICE CHAIRMAN, POARCH BAND OF
CREEK INDIANS, ATMORE, AL
Mr. Rolin. Thank you, Senator Campbell.
Chairman Campbell, Vice Chairman Inouye, and distinguished
members of the Senate Committee on Indian Affairs, I am Buford
Rolin, Vice Chairman of the Poarch Band of Creek Indians from
Atmore, AL. I serve as an elected member of the National Indian
Health Board representing the Nashville area. It is indeed an
honor for me to come before you this morning to offer this
testimony on the reauthorization of the Indian Health Care
Improvement Act.
As you know, the Indian Health Service's National Indian
Health Board serves all federally-recognized tribes throughout
the Nation. We have a membership of 12 members that are elected
to the Board by their respective areas. Our goal is to advocate
for Indian people, not only in the budgetary area, but health
issues throughout.
I would like to commend the testimony of chief executive
officer Melanie Benjamin and her concerns. She has expressed
them well. I know the other panelists will have equal concerns
that they will talk about.
Given the two previous hearings of the committee that was
held during the 108th Congress, I am going to be brief this
morning. I realize that the members are quite aware, as you
have just stated, about the needs of the health care of the
Indian people, the reauthorization, and how important it is in
the Indian Health Care Improvement Act. We realize the
political realities that are facing Congress, and we appreciate
the fact that you are holding these hearings this.
Let me talk a little bit about the process of what has
taken place over the years since 1999 with the first bill that
we introduced to reauthorize the Indian Health Care Improvement
Act. In 1999, the National Steering Committee was formed by the
Indian Health Service. It represented tribal leaders throughout
the Nation as well as members from the organizations and urban
areas.
Over the last several years, the NSC has worked closely
with Indian country, the Administration and Congress, and the
Indian Health Service to develop amendments to the Indian
Health Care Improvement Act. Let me begin first by talking
about the Centers for Medicaid and Medicare services.
At the request of the CMS, we have established a tribal
technical work group that has been representative of Indian
people throughout this Nation. The TTAG was formed in 2001 and
consists of tribal leaders, area Indian health boards, and
designated national tribal organizations.
The activities of the TTAG are coordinated through the
Intergovernmental and tribal Affairs Office within CMS. The
TTAG has forwarded several recommendations to Congress and CMS
regarding recommended changes to the reimbursement
methodologies in place for the Indian Health Service, tribal
health programs, and urban Indian problems.
The TTAG is very adamant about its position that any
reforms in Medicare, medicaid, or CHIP programs must allow for
tribal allocation or other direct funding mechanisms that
authorize Indian health program access to CMS.
The TTAG has also worked very closely the NSC to develop
the changes in Title IV of the Indian Health Care Improvement
Act, as reflected in H.R. 2440, which include the most recent
NSC recommendation.
As the committee is well aware, the Indian Health Service
lags far behind other segments of the population and has failed
to keep pace with inflation as far as health care is concerned.
Current Indian Health Service funding is so inadequate that
less than 60 percent of the health care needs of American
Indians and Alaska Native people are being met.
In order to address additional health care resources, Title
IV of the Indian Health Care Improvement Act is critical to
address the Medicare-Medicaid and other third party
reimbursements, as Chief Executive Officer Benjamin has stated
this morning.
It is one of the most important provisions of the Indian
Health Care Improvement Act. It makes IHS hospitals eligible
for Medicare reimbursements and facilities eligible for
Medicaid reimbursement. Title IV also makes it possible for
Medicare and Medicaid eligible American Indians and Alaska
natives to use these benefits.
Since the passage of the Indian Health Care Improvement Act
in 1976, Medicare and Medicaid payments have become sources of
income for tribal programs, so much so that in fiscal year
2002, $460 million was collected for these services. This
amount enhances the resources available already to hospitals
and clinics' budgets by 30 percent. We are indeed appreciative
of that.
But in order to further improve the ability of Indian
country as far as health providers to access third party
resources, the NSC has developed several changes to title IV
that was indicated in S. 212 and continues through S. 556. I
would like to note that S. 556 introduced to Congress is
identical to S. 212. Therefore, many of the concerns raised in
regards to S. 212 remain.
In response to those concerns, however, the National
Steering Committee has revised the recommendations for
reauthorization. The changes are reflected in H.R. 2440. By the
way, that bill was introduced June 11, 2003.
I think it is quite helpful to point out that the Senate
Committee on Indian Affairs and the House Resources Committee's
hearing on the Indian Health Care Improvement Act last week
indicates the cooperation and the spirit of the two houses to
support this reauthorization. H.R. 2440 reflects several
changes made to the original tribal proposal as introduced in
1999. Those changes listed have come about and we will see that
in H.R. 2440.
There are four areas that I would like to quickly talk
about that we have been removed from the previous legislation.
One is the Qualified Indian Health Program. This provision has
been removed. We have requested that a provider type with
Indian health programs appear, such as Medicaid, so that we can
more fully exercise our statutory rights in that aspect.
Secretary Thompson expressed his concern for that in S.
212. His concern was that over a 10-year period it would cost
in excess of $3 billion. However, in place of the QIHP
proposal, tribes are requesting that the Secretary prepare a
program or a report that would, in fact, examine whether these
payments under the current methodologies are sufficient to
continue to be applicable as a most favorable provider under
the Social Security Act. The current all-inclusive rate
certainly is appreciated, and we would hope that in this
process none of that would be discontinued.
Another concern that the Secretary had, of course, was the
extension of the 100 percent Federal Medical Assistance
Percentage. Tribal leaders agreed to delete this provision as
well. The Centers for Medicare and Medicaid Services requested
that be done. The States are very supportive of the 100 percent
FMAP expansion. Secretary Thompson's concern was the cost of $2
billion over a 10-year period.
A third area of his concern was the waiver of the Medicare
late enrollment penalty as far as Part B of Medicare is
concerned and the barriers that it may create as far as giving
Indians the opportunity to enroll late as opposed to other
enrollees within the Medicare programs. Tribal leaders
reluctantly agreed to remove that factor as well.
Finally, an area of concern that we had, and the Secretary
objected to, was the fact that tribal leaders had asked for,
and called for, regulations in a negotiated rulemaking process.
Our concerns here were relative to the complexity of the Social
Security Act and to having to negotiate a rulemaking process.
In response to this concern again, tribal leaders eliminated
the Social Security Act changes from the bill's negotiated
rulemaking provision.
We believe the changes to the original tribal proposal
submitted in 1999 significantly reduces the bill's Federal
budget impact. S. 212, or its identical bill, S. 556, as it was
scored in 2001, has a Federal budget impact of $6.9 billion.
With the deletion of QIHP and the FMAP, the score reflects a
70-percent decrease.
We request, and ask this committee, to submit a request to
the Congressional Budget Office to either score S. 556, without
the above-mentioned provisions, provide a fiscal budget impact
on H.R. 2440.
It has been my pleasure to brief this committee on the
concerns that the National Indian Health Board has relative to
the Indian Health Care Improvement Act. As I have been
involved, along with other tribal leaders, including Chief
Executive Officer Benjamin and the other panelists here this
morning, we will continue to stay involved to make sure that
this Act hopefully will be passed this year.
Further, we request that any concerns regarding this
legislation are raised in a timely manner so that passage of
the bill will occur during this session and there are no delays
that would jeopardize the passage of this bill.
I thank you for your time. I would also ask that my written
statement be made part of the record of this hearing.
The Chairman. Without objection, so ordered.
[Prepared statement of Buford Rolin appears in appendix.]
The Chairman. Thank you, Mr. Rolin.
Ms. Munson.
STATEMENT OF MYRA M. MUNSON, ESQUIRE, SONOSKY, CHAMBERS,
SACHSE, MILLER & MUNSON, LLP, JUNEAU, AK
Ms. Munson. Thank you, Mr. Chairman.
The last time I had the privilege of testifying before this
committee was in the late 1980's when I was still commissioner
of Health and Social Services for the State of Alaska. Since
joining the law firm I am a member of now, I have had the
opportunity to work with tribal leaders and tribal health
providers on every major health reform initiative that has been
discussed in the Congress, and since 1998 when the work began
on the reauthorization of the Indian Health Care Improvement
Act.
It is fundamental that the United States owes a duty to
Indians to provide them with health care. Everything flows from
that. It is equally fundamental in the decisionmaking that that
health care, in order to be delivered in a responsible way,
must be culturally competent.
That requires not merely that individual Indians have
access to health care, which most do not, at least in any way
comparable to that of other citizens of the United States and
the States, but it is important that the health care they have
access to is that operated by their own tribes or the Indian
Health Service, carried out to the extent possible to Indian
people, and managed by Indian people.
Indian people and Indian tribes expected that the duty of
the United States would be satisfied by providing them with
direct appropriations to the Indian Health Service and
eventually down to the tribes through the Self-Determination
Act. Congress has not been able to effect the appropriations
necessary to meet any level of health care for Indian people
comparable to that, provided even to Federal employees, let
alone to other Americans.
Instead, in 1976 when the Health Care Improvement Act was
first authorized, Congress, realizing it could not meet the
needs exclusively through direct appropriations, chose to
authorize the Indian Health Service and tribes eventually as
they took over the programs to bill for certain services
provided to Medicare or Medicaid eligible Indians, to bill
those programs and recover those revenues.
That made a fundamental shift and one which has been very
difficult for tribes and for their members to absorb. It
essentially made many Indians into welfare recipients when they
had never been before. It made them apply for benefits through
the Medicaid program in order to have access to the very care
they had been promised and for which they had ceded their
lands.
However, time passes and Indian people and Indian tribal
leaders are pragmatic. Indian Health Services had to be
pragmatic about this. The resistance to participating in those
programs has had to be overcome simply to make enough money
available to try to begin to provide for the needs for health
care.
Tribes and the Indian Health Service have worked to become
competent billers of the Medicare and Medicaid programs and to
be able to participate without losing the integrity of the very
special programs that they offer.
The Indian health system is truly the only system of health
care that exists in the United States. For all the promise of
managed care, somehow it would bring a preventative focus to
care; it would be a birth-to-death kind of model. In fact, it
is as profit-driven as all other health care in the United
States and tends to focus on illness and not on health, on
response and not on prevention.
The Indian health system is fundamentally different than
that in that it is truly a birth-to-death program. The people
who are running health programs, and many of the programs that
I work with, were born in the hospitals that they now operate
and that they now run. Their children were born in those
hospitals. They expect their great-grandchildren to be born and
cared for in a program that they operate. That is not an
expectation that those of us who rely on the private sector
health care system care enjoy. But to make that real, of
course, there must be adequate financing.
The Medicare and Medicaid programs are complex and not the
things that are typically are dealt with by this committee or
the Resources Committee in the House. They are relatively
foreign. You may have experienced this yourself, or you may
have talked with someone who has had to assist an elder parent
in applying for Medicare or making sense of their benefits, or
assisted someone in applying for Medicaid in order that they
could be in a nursing home or get other care that they need--
these are difficult programs to participate in.
In my written testimony, I have described very briefly the
basics of those programs. I think for those of you who are, in
fact, familiar with Indian people, and the way in which they
live, when you read about those programs, you will see the way
in which they diverge.
However, the Medicare and Medicaid programs are rife with
special exceptions. There is a tendency to believe that it is
all one program and it exists in exactly the same way for
everyone. Fundamentally not true. There are exceptions built in
throughout Medicare and Medicaid to assure that special
populations will get some level of care to guarantee their
access, and that certain kinds of providers will continue to
exist even as the rates get cranked down in those programs to
manage the cost increases.
So there are federally-qualified health centers, rural
health centers, and critical access hospitals, children's
hospitals, and cancer treatment centers. The list goes on and
on of various kinds of specific providers, each one of which,
if you meet all the finely-tuned rules, you get a special level
of compensation under the program different than applies to
others.
Fundamentally, as we worked on trying to revise the
Medicare-Medicaid provisions and access by the Indian Health
Service and tribes, we kept that in mind. We recognized that
the duty to provide health care to Indians is fundamental. The
existence of the Indian Health Service and of tribal health
programs is fundamental. Medicaid and Medicare should recognize
those special provider types.
As Mr. Rolin said, the Steering Committee agreed,
reluctantly, to drop the qualified Indian Health Program as a
new and special provider type in order to try to move this bill
forward. Instead, what we have done is try to tailor very
narrow provisions to other parts of Medicaid where there are
special compensation or reimbursement rules or Medicare to
permit the kinds of activities that are so essential on
reservations and in Indian communities in which health care is
being provided.
For instance, there is a provision that allows visiting
nurse services to be reimbursed, provided they are provided
through a rural health center in a setting which is a shortage
area for home and community-based care services. There are lots
of rules attached to that. We ask that the same kind of
visiting nurse services be reimbursed when they are provided in
any Indian Health Service program without having to go through
becoming a rural health center and proving you are in a
shortage area. We know there are those shortages.
I have provided for the committee comments on H.R. 2440
provisions. Those reflect the best drafting. I can say with
some great humility, I wrote much of what is in S. 556
regarding the Social Security Act provisions and the title IV
provisions. They were written conceptually.
I could spend my lifetime and never penetrate to the depths
of the Social Security Act and get an amendment quite right. We
were blessed with the assistance of Representative Young to
have an opportunity to work with House Legislative Counsel who
assisted us in turning our concepts into real Social Security
Act amendments. We encourage you to look at those and less at
the S. 556 provisions.
There is a side-by-side analysis that has been provided to
committee members so that you can track from S. 556 to the
House bill and understand what is left and how it has been
redone. There is also a section-by-section analysis which is
attached to my testimony.
I want to mention basically six principles that drive the
kinds of amendments. They are first to improve access to
Medicare and Medicaid enrollment. It is not, as I mentioned
earlier, a natural thought for an Indian elder to seek to apply
for Medicare. Many Indian elders are not eligible for Medicare.
They are not eligible for Social Security because they did not
work in jobs that participate in Social Security during their
work years.
But for those who are, it is not natural for them to
consider enrolling in part B and using up $700 a year of their
limited income to pay part B premiums. Applying for Medicaid is
certainly not something they think about even though they may
be living in poverty--because they are used to caring for
themselves. They expect the Indian health programs to provide
the health care they need.
Those programs are not accessible because people resist
applying and because in many States services and access by
Indian people to the programs operated by the State is not
readily available. Some of that is a matter of direct policy by
States, of where they locate their services, and some of it is
because of the sheer remoteness of where Indian people live in
relationship to State services. Finding ways to involve tribes
meaningfully in those activities is an important feature of the
act so that the rights of Indian people to participate in those
programs can be protected.
In addition, reducing co-payments, co-insurance, and
deductible obligations without reducing the reimbursement to
the tribal or Indian Health Services program also helps to
overcome the barrier to access to those programs.
Second, and I have mentioned this before, Indian health
programs should enjoy the same kind of special consideration in
the Social Security Act provisions that other kinds of health
care programs, like federally-qualified health centers, or
rural health centers, enjoy. You should not be taken in when
somebody says, ``Oh, they are trying to create an exception.''
There are a thousand exceptions.
The Social Security Act provisions on Medicare and Medicaid
are basically about two general rules. Everything else is an
exception to those rules. We are simply looking for some of the
same kinds of things. Nothing we have asked for is
fundamentally different than is available for some other kind
of provider.
Third, we are looking to minimize administrative barriers.
Mr. Rolin spoke to the fact that currently most of the Indian
health programs are reimbursed on an encounter per-day rate. We
look to maintain that rate while a study of reimbursement is
carried out to ensure that any changes in those reimbursement
methodologies are carried out in a way that will minimize
administrative burdens and will control the costs of trying to
build new billing systems, and to respond to the administrative
requirements of those programs.
Fourth, we want to encourage cooperation with the States.
Medicaid is a partnership with States that cannot be
effectively carried out by tribes without a good relationship
with the States. We look for additional consultation on their
part, and in some other provisions to find ways to improve the
relationships.
Among those is to reduce the role of the States in
licensing tribal facilities and tribal providers so long as
they meet the quality standards imposed by the Social Security
Act. It basically would put the tribal providers in the same
position that the Federal Indian Health Service providers are,
vis-a-vis State regulation. We look to try to achieve that more
uniformly.
Finally, we want to improve communication by the formation
of a technical assistance group in which people like myself and
Mim Dixon, along with health care providers from tribal
programs and others can work on behalf of tribal leaders, and
in direct interaction with CMS, to work through issues as they
arise so that when the Department of Health and Human Services
is making policy changes, they do so fully aware of the
consequences of them. What happens now all too often is that
they make the change and it is only months down the road that
the impact of that change becomes apparent and we all scramble
to find a way to fix it.
I join with the others in encouraging that this committee
keep this bill intact, that it endorse these provisions, and
that it work closely with other committees of the Senate and
the House who have jurisdiction over certain of these
provisions relating to the Social Security Act to ensure that
they will give those requests the serious attention that they
are due. It is easy to lose small changes. In an environment in
which you are trying to make changes as massive as adopting
Medicare prescription drugs, the very tiny nature of what we
are asking for should not stop serious consideration of them.
Thank you very much. I would also ask that my written
statement be made part of the record of this hearing.
The Chairman. Without objection, so ordered.
[Prepared statement of Ms. Munson appears in appendix.]
The Chairman. Thank you, Ms. Munson.
By the way, do not worry about not getting things right. We
work year-around here and if you could read our mail, we never
get things right. We just have to keep trying. That is why you
never get rid of us, I guess.
Before I go on, I did not know what Senator Murkowski's
schedule is, particularly since Ms. Munson is from Juneau.
Do you have any opening statement or comments before we go
on? I do not know if you have to leave.
Senator Murkowski. Thank you, Mr. Chairman.
I will be leaving in about 15 minutes, but I did want to
hear the testimony of Ms. Munson and welcome her as a
constituent. I also want to welcome a former constituent, Ms.
Dixon. I am looking forward to her testimony. I understand she
is from Fairbanks, as I am. We share a lot there.
I just wanted to listen to the comments this morning and
thank you, Mr. Chairman, for continuing on this very important
issue of the reauthorization of Indian health.
The Chairman. Thank you.
Ms. Dixon, please proceed.
STATEMENT OF MIM DIXON, DIXON & ASSOCIATES, BOULDER, CO
Ms. Dixon. Thank you, Chairman Campbell and Senator
Murkowski, tribal leaders, and honored guests today.
There has been a lot of talk recently about modernizing
Medicare and, in a way, the proposed Title IV of the Indian
Health Care Improvement Act, and the proposed amendments to
Medicaid, Medicare, and the Social Security Act, could be
considering modernizing Indian health care. As we know, this is
not an appropriations bill and it will not provide the funding
to bring programs and facilities up to standards.
So when I talk about modernizing Indian health care, I am
not talking about the delivery of services. Rather I am talking
about modernizing the legal and regulatory framework that
allows the Indian health programs to bill Medicaid, SCHIP,
Medicare, and private insurance, and to be paid for the covered
services that are provided to mutual beneficiaries.
Title IV and the Social Security Act amendments are needed
to respond to changes that have occurred in health care
delivery in our country in the past decade. Just a few years
ago there was no Medicaid managed care. There was no SCHIP.
There was no Medicare Part C or D or E. In most States, tribes
have not been included in the planning for these changes in
Medicaid, or to the development of SCHIP programs.
It is difficult for Indian health care to interface with
the Medicaid, SCHIP and Medicare of today. Indian health
programs are unique in many ways that make it impossible for
many Indian health facilities and programs to meet the usual
requirements to become providers under managed care programs.
Yet the Indian Health Service beneficiaries who are
enrolled in managed care programs under their Medicaid and
SCHIP programs will go off-plan to seek care at their Indian
health care facility. It is essential that they have that
unrestricted choice and that the Indian health facility can
bill and be paid for the services it provides.
Provisions in the Indian Health Care Improvement Act also
allow tribes to take advantage of some of the opportunities
provided by managed care. For example, they could use funds
from the Indian Health Serve as to purchase managed care plans
or other insurance programs for their beneficiaries. The
measures would also require States to allow Indian health
providers to service case managers for American Indian and
Alaska Native Medicaid beneficiaries.
Despite the increasing reliance of Indian health programs
on third-party collections, many American Indians who are
eligible for Medicaid and SCHIP are not enrolled in those
programs. To remedy this situation, this bill authorizes
funding for tribes for outreach services. The bills would also
eliminate financial barriers to enrollment in Medicaid and
SCHIP, such as premiums, deductibles, and co-pays.
Many of the issues relating to Indian health care financing
are extremely complicated. Tribes have recognized that there is
a need for a national Tribal Technical Advisory Group to work
closely with CMS to resolve problems as they arise. To operate
effectively, this TTAG must be authorized in law. The TTAG will
be essential for helping to implement the provisions in Title
IV of the Indian Health Care Improvement Act, and for all the
proposed changes in Medicare under the proposed prescription
drug legislation and proposed Medicaid reform.
In closing, it is important to remember the purpose of this
legislation. At the heart of the provisions in title IV is
enhancing access to care for American Indians and Alaska
Natives, protecting their rights to choose their health care
providers, and assuring that Indian health care facilities get
paid when they provide services under Medicaid, SCHIP, and
Medicare to those beneficiaries.
I have submitted written testimony which provides greater
detail on these points. Thank you. I would also ask that my
written statement be made part of the record of this hearing.
The Chairman. Without objection, so ordered.
[Prepared statement of Ms. Dixon appears in appendix.]
The Chairman. Thank you, Ms. Dixon.
Let me ask a couple of questions. Let me start with Ms.
Benjamin. Thank you for being here.
I have been a big supporter, as you know, for years of
self-governance. It seems to me that the tribes, if they have
the capability, should be offered that opportunity. In most
cases they do a better job than the Federal Government could
have done.
But with that in mind, I guess there are some things that
probably ought to remain with the Agency. Let me just ask you a
couple of things on that. With that thought in mind, what is
your view on Secretarial oversight for the tribal direct
billing program?
Ms. Benjamin. That's a hard question.
The Chairman. Yes; I know. That is why I asked you.
[Laughter.]
Do you think tribes could do that better than can be done
through the Agency?
Ms. Benjamin. We know what our need is for our membership.
I think we can address the health disparity issues better than
an outside entity doing that. So I would support that tribes
would have that authority to do that.
The Chairman. Your testimony also includes a concern that
tribes are usually not consulted in the design of the State
Medicaid programs. It is not unusual, unfortunately. We hear
that very often here in the committee that there is a lack of
good in-depth consulting with the tribes before decisions are
made.
How do we encourage tribal State collaboration in the
design of health insurance programs so that they are inclusive
of Indian people's needs?
Ms. Benjamin. I guess I can look at our example. Currently
what we have for our membership is called a ``Circle of
Health.'' We provide some health care opportunities for all of
our members, regardless of where they live in the United
States. There is a process that they have to go through, of
course. Our goal is to make sure that people that may not live
on the reservation, that live in different States, and do not
have access, that we are providing a service to them as well.
The Chairman. Do you do that through the mail? Do you offer
advice, say, of 500 miles away and cannot get home to the
clinic?
Ms. Benjamin. We send them applications where they would be
able to get some insurance in their State. We help pay the
premiums for that, to get that done. We want to make sure that
our membership is not forgotten, if they live elsewhere beside
the reservation.
The Chairman. That is a great idea. Has that been pretty
successful?
Ms. Benjamin. It is successful. We still have a lot of
folks that still have not utilized that program. We are
continuously trying to educate them and the opportunities
through our mailings or newsletters. We also make sure that
they know what services are available.
Also, what we are doing with the State of Minnesota is that
we try to partner in any way we can. Currently we have some
discussions with the TANF program to provide services for
Indian people in the Minneapolis-St. Paul area. We also feel
that we can show more compassion to Indian people, to our own
tribal members or whoever, to get them to become more self-
sufficient because of our cultural backgrounds. We can relate
to some of those issues, we feel, in a better way than the
State or county agencies that are out there.
Those are two examples of what we are trying to do. We want
to provide a system that we can hopefully improve lives for
membership of our own tribe and other Indian people, even
though they do not live directly on the reservation.
The Chairman. You mentioned that your tribe has difficulty
collecting third-party reimbursements, and the little you do
collect often goes to meeting health care needs of your tribal
members. What are the most serious impediments to preventing
the tribe from collecting third-party reimbursements?
Ms. Benjamin. I would like to refer that question to Samuel
Moose, the Commissioner of Health and Human Services because he
administers that. Can you assist me, Sam?
Mr. Moose. We are always negotiating with the State and
through our State liaison some opportunities within the various
programs. Some of the difficulties that we run into is that the
State delegates some of that authority to the local county
agencies where they were negotiating those rates and
opportunities. We have had difficulties in the past.
The Chairman. Do they just refuse to negotiate? Do they
drag their feet?
Mr. Moose. Yes; they drag their feet. Some of them come to
the table. We really do not make any progress with the issues.
There is always a history. There is always something that comes
up that somehow creates barrier.
The Chairman. It is called jumping through hoops.
Mr. Moose. Yes.
The Chairman. It is not uncommon, I guess.
Vice Chairman Rolin, you have put a number of years of
dedication to improving the health of Indian people. I want to
commend you for that. You have been in here a number of times
testifying on their behalf. I thank you for that.
On the Federal medical assistance percentage, I understand
that the National Steering Committee decided to remove the 100
percent FMAP expansion provision in S. 556 in response to the
Administration's concern that it would be too costly; is that
correct?
Mr. Rolin. That is correct.
The Chairman. What cost estimates were included in that
decision?
Mr. Rolin. Myra might be able to answer that. She has
handled that technical portion.
The Chairman. We call that passing the buck around here,
Myra. Go ahead. [Laughter.]
Mr. Rolin. That has been her area of expertise.
Ms. Munson. If Congress would pass the buck, we would have
no problems here. [Laughter.]
The Chairman. Bucks, plural.
Ms. Munson. Many, many bucks. The truth is we really do not
know. What we do know is that they came up with an estimate of
$2.48 billion for the 100 percent FMAP. We believe that that is
a substantial over-estimate of increased costs since we believe
that States that currently claiming 100 percent FMAP for a wide
variety of activities that they believe, and I think correctly,
are already authorized as ``through the facility.''
A significant amount of the FMAP issue arises out of the
difference of interpretation of that phrase, ``through the
facility,'' with tribal health programs and the States
interpreting it to mean not only the things provided in the
building, but things which may be referred out that have to be
purchased from other providers. They should also be entitled to
that 100 percent FMAP. We think that CBO has over-estimated the
number, but we do not have the benefit of having any details so
we cannot tell you exactly in what ways.
The Chairman. I see.
Mr. Rolin. Senator, if I might add, you noted in my
testimony also the States support that. They believe this would
be a direct support as far as funding for tribes. They have
been most supportive in that aspect.
The Chairman. We often hear that States deny health care to
Indian people by saying it is a Federal responsibility. Is the
NSC aware of cases where States have refused public health
insurance coverage for eligible Indian people because of that
concept?
Mr. Rolin. I do not know of any. Ms. Dixon, are you
familiar with any? I am not aware of any. I know my State has
not.
The Chairman. Ms. Dixon.
Ms. Dixon. I think it is a matter of degree. It is not as
black and white as that. I think that there is a higher level
of cooperation with the State looking for ways to enhance and
support the Indian health system when there is 100 percent FMAP
and they are not trying to conserve State funds and they
realize that the Federal are there.
For those services where there is not 100 percent FMAP,
Medicaid directors tend to take the most conservative approach
in terms of allowing tribes to carry out their mission with
Medicaid funding.
The Chairman. Okay.
Ms. Munson.
Ms. Munson. If I could, Mr. Chairman, I think the denial
plays out in one other way. I think any Indian person who gets
their application in and manages to fill it out completely will
be granted their eligibility if they satisfy all the
conditions. The trick is: Will they ever get the application?
Will they understand it? Will they get it completed? Will they
meet the deadlines for personal interviews or whatever other
hoops they may have to jump through to get it considered? Will,
in fact, it be returned to them because there is something
missing? Will they have had difficulty getting access?
We believe, and there is pretty good demonstrated evidence
of this, that even in States that cooperate, Indian people are
substantially under-represented in the Medicaid rolls compared
to the level of poverty in Indian country. We think there are
many barriers; most of them subtle.
The Chairman. Including educational problems. Sometimes
Indian people do not have the educational opportunities and
when they have to fill out some of these complicated Federal or
State forms, they are already at a disadvantage.
Ms. Munson. Absolutely.
The Chairman. Ms. Dixon, we are dealing with managed care.
You hear it all the time here in Congress, as you probably
know. It seems to be the new rage. It seems to be the way we
are going. But we do get some feedback that one size does not
fit all, particularly in the difference between rural America
and urban America. But I think also that might apply to the
problems that many Indian people face, and that is cultural
differences.
What are your recommendations to try to improve the health
care system from a culturally-sensitive aspect for Indian
people?
Ms. Dixon. That is a really good question. First, let me
say that in essence the Indian health system is a culturally-
sensitive managed care system. The issue is not so much the
cultural sensitivity within the Indian health system, it is
forcing Indian people to enroll in managed care plans that are
operated by the State under Medicaid. And now with the
revisions to Medicare that we are talking about, that is a
potential there as well. It has not been so much Medicare up to
now, as Medicaid.
Then forcing them to enroll in a Medicaid managed care plan
for which the Indian Health System is not a provider. Then they
are into a health care system that is off the reservation, or
outside their communities, where people have little knowledge
of the culture, where there are not people who speak the
language, where people do not understand the living conditions.
Often times facilities are very hard to access because they are
far away. They are defaulted to a facility that might require a
great deal of transportation to get there. They do not have the
vehicles and the transportation.
What we have recommended--and what tribes have been
recommending ever since the National Indian Health Board did
its study of the nine State Medicaid programs that have gone
into managed care, that had a significant Indian population in
those States--is that Indian people be exempted from mandatory
enrollment, that States keep a carve-out for Indian health that
is paid for on a ``fee-for-service.'' We call it ``fee- for-
service,'' but it really is not. It is called the ``encounter
rate'' or the ``all-inclusive rate.'' Sometimes it is the ``OMB
rate'' or the ``IHS rate.'' It is not exactly ``fee-for-
service,'' but it is not the capitated managed care payment.
Also, Indian people should be allowed to go to their local
Indian facility, if that is what they choose. If they choose to
use another facility under Medicaid, they should be allowed to
do that as well. But they should not be penalized, and the
Indian health facility should not be penalized if a Medicaid
recipient chooses to use their local tribal or Indian health
care facility.
The Chairman. I agree.
Ms. Benjamin.
Ms. Benjamin. I wanted to comment on the cultural sensitive
way of how some of our people deal with the providers. Many of
our elders' first language would be Ojibwe. There is that
communication barrier sometimes with the providers.
What we provide is traditional healers. They then have a
comfort level dealing with someone that can speak and
understand their language. Our issue with the traditional
healers is that they are not recognized. We are not included in
the billing process when we use traditional healing for our
membership.
The Chairman. I think some other tribes have had quite a
bit success with that, too. I think the Navajos do that, not
only with working with the State for health care but such as
surgery, for instance. I understand that they have spiritual
leaders that understand the traditional healing ways of the
Navajos who work with the doctors. I think that is a terrific
idea.
I have often wondered if it creates a liability issue or
what is sometimes called the unintended consequences of doing
something. I wonder if there is something in there that comes
around to haunt you later on why you try to do that. But it
seems to me it is the only way to go, particularly for
traditional people. That comfort level goes up considerably if
they know there is a spiritual attachment to healing.
Mr. Rolin.
Mr. Rolin. Senator, I have just one more comment regarding
the FMAP. I noticed in the most recent Senate prescription bill
that Native Hawaiian providers were included. However, our
providers were left out. Certainly that is a concern we have as
well. We wanted to share that with you.
The Chairman. Thank you for bringing that to my attention.
I did not know that. I will make sure that we look into that
and find out why.
Mr. Rolin. Thank you.
The Chairman. I have no further questions that I will ask
today. I will put some in writing to you. We have many members
who are not here today. They will be submitting questions in
writing, too. We would appreciate your getting those back to
us.
Without objection, so ordered.
We will keep the hearing open for 2 weeks for any
additional testimony or letters from anyone in the audience or
from our panelists.
I thank you for appearing today.
This committee is adjourned.
[Whereupon, at 11:17 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Melanie Benjamin, Chief Executive, Mille Lacs
Band of Ojibwe
Chairman Campbell, Vice Chairman Inouye and distinguished members
of the Senate Committee on Indian Affairs, my name is Melanie Benjamin
and I am the chief executive of the Mille Lacs Band of Ojibwe. The
Mille Lacs Band is a federally recognized tribe of 3,570 members
located in East Central Minnesota. We operate three clinics in three
Mille Lacs Band districts on our reservation and serve a user
population of several thousand.
Three topics will be discussed as they relate to Medicaid and
Medicare under Title IV of the Indian Health Care Improvement Act:
Sovereignty, the Federal trust responsibility and the health
disparities that exist between Indians and the rest of the American
population. The access to health services under title IV have a direct
connection to the health disparities in Indian country and must be
addressed by the Congress. Following the general discussion of the
three topics under Medicaid and Medicare will be the Mille Lacs Band
recommendation of the establishment of a Tribal Leaders Group and
Tribal Technical Advisory Group specific to the Centers for Medicare
and Medicaid Services and their work with the Indian Health Service
[IHS]. The statement concludes with one final issue of concern to the
Mille Lacs Band: the Department of Health and Human Services' ``One''
HHS Initiative.
When the Indian Health Care Improvement Act was first enacted in
1976, Congress recognized its trust responsibility toward the tribes to
provide adequate health care. Throughout the subsequent amendments and
reauthorizations of the Act, one of the major underlying policies has
been to provide tribes access to other Federal health care sources like
Medicare and Medicaid programs. These programs have unlimited funding,
as opposed to Indian Health Service programs that have funding limits
each year. The intent was and is to improve our health status through
that access. Since then Medicare and Medicaid reimbursements to tribes,
including the Mille Lacs Band, have become a significant source of
revenue for our health care programs and operations.
Over the last 15 years, the Mille Lacs Band of Ojibwe has actively
participated in the formulation of Tribal Self-Governance policy. We
take pride in being one of the first ten Self-Governance tribes. We
participated in the original demonstration project and the 1 writing of
the permanent Acts for BIA and IHS Self-Governance. The Mille Lacs Band
has also been on the rulemaking committees for the implementation of
Self-Governance laws. Presently, the Mille Lacs Band of Ojibwe is an
active member with the Tribal Self-Governance Advisory Committee that
advises Federal agencies on Indian policy matters affecting the Self-
Governance tribes.
The Mille Lacs Band has supported and advocated for Self-Governance
laws because our philosophy is that we should be free to govern
ourselves and develop our own policies in the administration of our
tribal programs. To us, this is an important exercise of sovereignty.
In that exercise of sovereignty, we should not be entangled by a
Federal or State bureaucracy.
There are three principles that the Mille Lacs Band of Ojibwe
considers when analyzing Federal programs. First, we assert that our
primary relationship is with the Federal Government. This tribal-
Federal relationship has been established through treaties with the
United States, Executive orders, Federal statutes and numerous court
decisions recognizing the same. Second, we retain all sovereignty not
expressly taken away, and therefore we should have the ability to
control funds reserved for us under Federal law. Third, we should have
equal access to the same funding avenues as States. This third
principle raises the fundamental flaw of the Medicaid and Medicare
programs.
It is the Band's understanding that the design of the Medicaid and
Medicare programs is a Federal--State collaboration. The problem is
that tribes do not fit into the picture at all and this design flaw
makes it very difficult to meet the criteria for receiving
reimbursements. An example is that counties receive an administrative
match from the state for their administrative costs while tribes
cannot. According to the Mille Lacs Band of Ojibwe Commissioner of
Health and Human Services, our inability to recover the administrative
match demonstrates that tribes do not have equal access to Medicaid and
Medicare reimbursements. The reason is that States determine how their
block grants will be distributed under their own guidelines. As a
result, the Mille Lacs Band and many other tribes lose out on potential
and critical avenues of funding we desperately need because Federal
funding through the Indian health service. Others on this panel have
addressed this and other legal barriers more specifically, but from a
tribal leader perspective it is clear that states and managed care
systems have predominance over tribes under Medicaid and Medicare.
Clearly, the establishment of the Medicaid and Medicare entitlement
programs happened at a time in history when the Congress did not focus
on tribal sovereignty. Presently tribes are treated as governments in
Federal legislation and tribal sovereignty is recognized. Indian people
are provided direct access to Federal programs and funding. The Mille
Lacs Band of Ojibwe receives direct funding through our Self-Governance
Indian Health Service and Bureau of Indian Affairs Annual Funding
Agreements. But when it comes to Medicaid and Medicare programs, it is
a different situation. It is time to change the Medicaid and Medicare
provisions under Title IV of the Indian Health Care Improvement Act to
reflect the new enlightened view of tribal sovereignty and provide
tribes more access to health care services as the Act was originally
intended.
Through our treaties, Federal statutes, Executive orders and court
decisions, a Federal trust responsibility has been established and
recognized over the course of dealings with tribes. The Mille Lacs Band
of Ojibwe signed several treaties with the United States, and the
provision of proper health care became an expectation of the Band and
an obligation of the Federal Government. In addition, the Snyder Act of
1921, the Transfer Act of 1954, the Self-Determination Act of 1975, the
Indian Health Care Improvement Act of 1976, as well as the enactment of
the IHS Self-Governance Act, all evidence the trust obligations that
flow to the tribes from the Federal Government for the provision of
health care.
In spite of the clear legal duty created by these Federal statutes,
the Federal obligation to provide adequate health care to tribes has
never been properly funded. Historically, this insufficient funding has
interfered with our ability to provide comprehensive health care to
Mille Lacs Band members. According to IRS estimates, the Mille Lacs
Band and all other tribes in the Bemidji are funded at approximately 30
percent of need. This means more than two-thirds of our need is not
being met and explains why the status of Indian health on the Mille
Lacs Band Reservation and almost all other tribal reservations is so
poor. We are told that the Federal Government spends nearly twice as
much for a prisoner's health care than it does for Indians. This fact
is an example of why our health status is at the bottom of every
disease category.
It seems ironic that Indian health care through the IHS is not an
entitlement for Indian people when tribes essentially pre-paid for our
health care by ceding millions of acres of land to the Federal
Government. It seems even more ironic that tribes have problems
accessing the Federal entitlement programs like Medicaid and Medicare
which were designed for all state citizens. This funding disparity
becomes a matter of fairness and equity because Indian people are also
citizens of the States in which we reside. It is only logical that we
should have the same access to the same services as do other non-Indian
citizens.
Given that we have been historically under funded for our health
care needs and that tribes likely will not receive funding for the
level of need in the next appropriations cycle, the Federal trust
responsibility needs to be taken seriously and changes made to allow
tribes full participation in the existing entitlement programs of
Medicaid and Medicare. It is fair and it is right.
It has been more than 25 years ago since the Indian Health Care
Improvement Act was enacted. The primary purpose of the legislation was
to improve the health status of Indians to a level comparable with the
general U.S. population. While strides have certainly been made in the
delivery of Indian health care in that time, there continue to be
health disparities in Indian country that are recited time and time
again. The numbers change slightly, but one constant is that Indians
rank highest in nearly every category of disease incidence than the
general American population. It is plain and simple that Indian health
status is not improving and something must be done.
On the Mille Lacs Band Reservation, diabetes is a very serious
problem. There is not one family without diabetes among one of their
family members. For many of our Band members, it is not a matter of if
they get the disease, but when. Band members are losing their vision
due to glaucoma complications, they are losing their limbs because of
circulatory problems and many are close to requiring kidney dialysis
treatments. This chronic disease affects our members' quality of life
and it affects the lives of their family members.
More alarming is that diabetes and other long-term chronic health
conditions are now occurring in our children and our youth. We have
serious concerns for their long-term health and longevity. Our children
and youth are our future and we must aggressively confront these health
problems to preserve our tribal communities. There are no answers but
it is clear that adequate and comprehensive Indian health care is a
critical part of the solution.
The ability to provide comprehensive health care on our
reservations is paramount because frequently our members will use only
our tribal health facilities. The Mille Lacs Band is located in a rural
area and other health care facilities are long distances. Our three
clinics attempt to provide the health care our members need, but
resources are quickly used and we make every effort to access outside
funding through Medicaid and Medicare reimbursements within the
limitations of existing law. More often than not, our efforts cannot
meet our needs. We are fighting to protect the lives and health of our
members on our reservations and in our communities. If Congress makes
the necessary changes to Title IV of the Indian Health Care Improvement
Act and provides more access to Federal health care services and funds,
it will at least give us another weapon in this war on health
disparities.
Under Executive Order Number 113175, the Tribal Consultation
Policy, the Indian Health Service frequently solicits tribal input on
health care matters that affect Indian country. The same cannot be said
for other agencies within the Federal Department of Health and Human
Services. Two examples that demonstrate the lack of tribal consultation
are the proposed Medicaid and Medicare Reform that will affect tribal
health care programs throughout Indian country.
The Department of Health and Human Services and the Mille Lacs Band
of Ojibwe, along with the other federally recognized tribes throughout
the United States, share the common goal of providing accessible and
culturally-appropriate health care that we believe is best achieved by
working together at the earliest stages of policy development and
certainly prior to implementation. The Mille Lacs Band of Ojibwe
endorses and supports the Secretarial appointment of a Tribal Leaders
Group [TLG] that would provide policy guidance throughout the
Department of Health and Human Services. The Mille Lacs Band also
endorses and supports the Tribal Technical Advisory Group [TTAG] that
would provide technical expertise on complicated Indian policy matters
and issues specifically to the Centers for Medicare and Medicaid
Services.
The Tribal Leaders Group has been sanctioned by the National Indian
Health Board, the National Congress of American Indians and the Tribal
Self-Governance Advisory Committee, and would be comprised of tribal
leadership from each of the Indian Health Service areas. These three
organizations are recognized by the Federal Government and the agencies
that handle Indian affairs, but on many occasions Indian policy is
overlooked by lawmakers and policymakers during the process of policy
development. The Tribal Leaders Group would provide important policy
recommendations to the Department of Health and Human Services on
proposed initiatives that affect health care delivery throughout Indian
Country, which in turn furthers the government-to-government
relationship that fulfills the objectives of the tribal consultation
policy.
On a more specific level, the Tribal Technical Advisory Group
[TTAG] would provide the technical expertise and knowledge to the
Centers for Medicare and Medicaid Services that is required when
dealing with complex issues like Medicaid and Medicare Reform. The TTAG
is also sanctioned by the National Indian Health Board, the National
Congress of American Indians and the Tribal Self-Governance Advisory
Committee. The Centers for Medicare and Medicaid Services has drafted a
charter for the TTAG that provides representation from the three
national Indian organizations identified above; however, the Mille Lacs
Band and the TTAG believe that the Group should also require the
participation of at least three technical advisers that are familiar
with health care financing and administration and how proposed changes
will affect Indian country.
Through the Secretarial appointment of the Tribal Leaders Group and
the Tribal Technical Advisory Group, tribal involvement from the
earliest stages of policy development will ensure that Indian issues
will be adequately addressed. Involvement and consultation also
furthers the government-to-government relationship that the Mille Lacs
Band of Ojibwe believes is part of the Federal trust responsibility to
tribes.
The Mille Lacs Band of Ojibwe has a number of concerns with the
Secretary of the Department of Health and Human Services' One HHS
Initiative. First, the Initiative has not involved tribal consultation
and that lack of consultation undermines the government-to-government
relationship that tribes enjoy with the Federal Government. One of the
underlying policies of Executive Order Number 13175 was and is to
involve tribes at the policymaking level and work with decisionmakers
to enhance the government-to-government relationship. The Mille Lacs
Band of Ojibwe and other tribes want to be involved and consulted on
health and human service policy matters that affect Indian country
because we know best what our tribal communities need and can provide
that knowledge to HHS officials.
Second, tribes' unique status as sovereign governments who are
federally-recognized political entities is overlooked by the One HHS
initiative. As a federally-recognized tribe, the Mille Lacs Band of
Ojibwe is a sovereign government that has a government-to-government
relationship with the Federal Government and its agencies. Our Self-
Governance compacts are an expression of that relationship. As
political entities recognized by the Federal Government, the Mille Lacs
Band and other tribes cannot be treated as simply another racial
minority group. The U.S. Constitution, our Treaties, Presidential
Executive orders, and Federal statutes and court decisions all affirm
our political status as sovereign governments that are distinctly
separate from all other racial and minority groups. By engaging in
tribal consultation, Federal agencies will support tribes' government-
to-government relationship expressed in the above mentioned
instruments.
Third, implementation of the One HHS Initiative is a departmental
reorganization that fails to recognize the Indian Health Services'
unique responsibility to Indian tribes. The restructuring of the HHS
does not acknowledge the unique relationship between the Indian Health
Service and the federally-recognized tribes. By incorporating Indian
health care into public health and minority health programs, the Indian
Health Service may lose its ability to provide direct medical services
to tribes and eventually may see the loss of programs designed
specifically for tribes. Inherent in the restructuring is an alteration
of the Federal trust responsibility. Indian Health Service exists to
fulfill the Federal trust responsibility of providing health care to
tribes across the United States and attempting to improve the health
status in Indian country. Removing that trust responsibility runs
counter to the very purpose of the Indian Health Care Improvement Act.
The Mille Lacs Band of Ojibwe recognizes that improvements have
been made in the delivery of health and human services since the
enactment of the Indian Health Care Improvement Act in 1976. However,
we still have significant health disparities in our communities that
have not seen improvement. This tells us there must be greater efforts
to address Indian health disparities. Those efforts must involve tribal
consultation and coordinated discussions for any result to be obtained.
It is not too late to engage tribes and begin working together to move
forward and improve Indian health disparities.
Miigwech.
______
Prepared Statement of Buford Rolin, Vice Chairman, Poarch Creek of
Indians
Chairman Campbell, Vice Chairman Inouye, and distinguished members
of the Senate Indian Affairs Committee, I am Buford Rolin, member at
large of the National Indian Health Board. I am an elected official of
the Poarch Creek Band of Indians, serving as vice chairman. On behalf
of the National Indian Health Board, it is an honor and pleasure to
offer my testimony this morning on the Reauthorization of the Indian
Health Care Improvement Act.
The NIHB serves nearly all federally recognized American Indian and
Alaska Native (AI/AN) tribal governments in advocating for the
improvement of health care delivery to American Indians and Alaska
Natives. We strive to advance the level of health care and the adequacy
of funding for health services that are operated by the Indian Health
Service, programs operated directly by Tribal Governments, and other
programs. Our Board Members represent each of the 12 areas of IHS and
are elected at-large by the respective Tribal Governmental Officials
within their regional area.
I would first like to commend the witnesses that testified before
me this morning, Mim Dixon and Myra Munson, for their tireless work and
expertise on American Indian and Alaska Native issues related to
Medicare, Medicaid and the Children's Health Insurance Program. I am
also much honored to testify this morning alongside Chief Executive
Melanie Benjamin of the Mille Lacs Band of Ojibwe.
Given the two previous hearings the committee has held on the
Indian Health Care Improvement Act during the 108th Congress, I'm going
to be brief this morning. I realize the members are quite aware of the
need and purpose of the reauthorization; therefore I would like to
focus on the efforts of tribal leaders to craft legislation that
addresses previous concerns raised by the Administration and responds
to the current political realities facing Congress.
The National Steering Committee [NSC] was formed by the Indian
Health Service in 1999 to develop and submit recommendations for
changes to the Indian Health Care Improvement Act. The NSC is comprised
of elected tribal representatives throughout Indian country, and also
includes urban health program representation. The NSC is currently
cochaired by Julia Davis-Wheeler, NIHB Chair, and Rachel Joseph of the
Lone Pine Paiute Shoshone Tribe.
Over the last several years, the NSC has worked closely with Indian
country, the Administration, Congress, and the Indian Health Service to
develop amendments to the Indian Health Care Improvement Act. Indian
country has proceeded through this process in a spirit of cooperation
and negotiation and the language has gone through several changes.
At the request of Tribal leaders, the Centers for Medicare and
Medicaid Services [CMS] established the Tribal Technical Advisory Group
(TTAG) to advise CMS on Medicare, Medicaid, and Children's Health
Insurance (CHIP) policy issues related to American Indians and Alaska
Natives. The TTAG was formed in 2001 and consists of Tribal leaders,
Area Indian Health Boards, and designated national Tribal
organizations, including the National Indian Health Board. The
activities of the TTAG are coordinated primarily through the
Intergovernmental and Tribal Affairs Office within CMS.
The TTAG has forwarded several recommendations to Congress and CMS
regarding recommended changes to the reimbursement methodologies in
place for the Indian Health Service, Tribal health programs, and Urban
Indian programs. The TTAG is adamant in its position that any reform or
changes in the Medicare, Medicaid, or CHIP programs must allow for
Tribal allocation or other direct funding mechanisms that authorize
Indian health programs access to Centers for Medicare & Medicaid
Services (CMS) program funding.
The TTAG has worked closely with the National Steering Committee to
develop the changes to Title IV of the Indian Health Care Improvement
Act that are reflected in H.R. 2440, which are the most recent NSC
recommendations.
As the committee is well aware, funding for the Indian Health
Service lags far behind other segments of the population and has failed
to keep pace with population increases and inflation. Current Indian
Health Service funding is so inadequate that less than 60 percent of
the health care needs of American Indians and Alaska Natives are being
met. In order to address the need for additional health care resources,
Title IV of the Indian Health Care Improvement Act addresses access to
Medicare, Medicaid and other third party reimbursements. It is one of
the most important provisions of the Indian Health Care Improvement Act
as it makes IHS hospitals eligible for Medicare reimbursements, and
also makes IHS facilities eligible for Medicaid reimbursements. Title
IV makes it possible for Medicare and Medicaid eligible American
Indians and Alaska Natives to utilize these benefits.
Since the passage of the Health Care Improvement Act in 1976,
Medicare and Medicaid payments have become vital sources of revenue for
basic tribal hospital and clinic operations. In fiscal year 2002 alone,
IHS and tribally operated hospitals and clinics collected $460 million
for services provided to Indian people enrolled in these programs. This
amount enhances the resources available for the IHS hospitals and
health clinics budget by nearly 30 percent.
In order to further improve the ability of Indian Country health
providers to access third party resources, the NSC developed several
changes to Title IV that were included in S. 212 introduced during the
107th Congress. When asked to respond to the language contained in S.
212, several concerns were raised by Health and Human Services
Secretary Tommy G. Thompson regarding the proposed changes to title IV.
The concerns were primarily related to costs. I would like to note that
S. 556 introduced during this Congress is identical to S. 212 and
therefore many of the concerns raised in regards to S. 212 remain.
In response to those concerns, the National Steering Committee
revised their recommendations for the reauthorization and those changes
are reflected in H.R. 2440, which was introduced on June 11, 2003. I
think it was,quite helpful to hold the joint Senate Committee on Indian
Affairs and House Resources Committee hearing on the IHCIA last week as
it illustrates the efforts of both houses to pass a bill this session.
Although the bill was introduced in the House, it was developed with
input and involvement from both Senate and House members and staff.
H.R. 2440 reflects several changes made to the original tribal
proposal prepared in 1999 by the National Steering Committee (NSC). The
legislation includes revisions to the 1999 proposal in response to the
Secretary Thompson's concerns. Some of the major changes of the revised
Tribal recommendations made ii?- H.R. 2440 that respond to the
Administration's concerns about S. 212.
Qualified Indian Health Program [QIHP]. This provision has been
removed. The NSC designed QIHP as a new provider type through which
Indian health programs and urban Indian health programs could more
fully exercise their statutory authority to receive payments under
Medicare, Medicaid and SCHIP. Secretary Thompson expressed concern that
QIHP was complex and would be administratively burdensome. Tribal
leaders acknowledged that the CBO score of this provision--in excess of
$3 billion over 10 years--could be a barrier to Congressional
acceptance of QIHP and therefore removed it.
In place of the QIHP proposal, Tribal leaders seek a comprehensive
study by the Department of Health and Human Services [DHHS] of
reimbursement methodologies of Medicare and Medicaid for the Indian
Health Service [IHS], Tribal health programs, and health programs of
urban Indian organizations. The new provision found in H.R. 2440
directs the Secretary to perform such a study and report the findings
to Congress. The Secretary is to examine whether payment amounts under
current methodologies are sufficient to assure access to care and
whether these methodologies should be revised consistent with those
applicable to the ``most favored'' providers under the Social Security
Act. The current ``all-inclusive'' rate system through which IHS and
tribal hospitals and some clinics now receive Medicare and Medicaid
reimbursements would remain in place until the Secretary's
recommendations are reported to Congress and Congress decides whether
to make any changes.
Extension of 100 percent Federal Medical Assistance Percentage
[FMAP]. Tribal leaders also agreed to delete a provision that would
have extended the 100 percent FMAP to services provided to Medicaid
eligible Indians referred by IHS or tribal programs to outside
providers, such as referrals made through the contract health services
program. Under current interpretation of the Centers for Medicare and
Medicaid Services [CMS], the 100 percent FMAP is made available to
States only for reimbursements for services provided directly in an IHS
or tribal facility, even though the only reason the patient required
care outside the IHS or tribal facility was that the facility could not
directly provide the service and had to rely on an outside provider.
While State governments are very supportive of the 100 percent FMAP
expansion, DHHS objected that its cost was too high--more than $2
billion over 10 years--and that its financial benefits would flow only
to the States, not to Indian health programs and their Indian
beneficiaries. While the NSC disagrees with the Department's
interpretation of the statute and their conclusions about the effect of
the proposed amendment, we agreed to delete the provision from the
IHCIA.
Waiver of Medicare Late Enrollment Penalty. The 1999 tribal
proposal--and S. 212 and S. 556--sought to waive the premium penalty
for any Medicare-eligible Indian who did not timely enroll in Medicare
Part B because of a number of barriers. The DHHS strongly objected to
this provision as it would treat Indians differently than other
Medicare-eligible persons who do not timely enroll. The DHHS asserts
that the penalty is needed to encourage eligible persons to enroll and
begin paying Part B premiums when they first become eligible, rather
than waiting until they become ill and need to use their Medicare
coverage. Tribal leaders also agreed, reluctantly, to delete this
provision.
Regulations. Secretary Thompson objected to the tribal leaders'
call for all regulations--including Social Security Act regulations
affecting Indian health providers--to be prepared through Negotiated
Rulemaking with tribal representatives. He asserted that the large
number and complexity of Social Security Act regulations makes
negotiated rulemaking unfeasible. In response to this concern, tribal
leaders eliminated Social Security Act changes from the bill's
negotiated rulemaking provision.
We believe the changes to the original tribal proposal submitted in
1999 significantly reduce the bill's Federal budget impact. S. 212
[identical to S. 556] was scored in 2001 as having a Federal budget
impact of $6.9 billion over 10 years. Deletion of the QIHP and the 100
percent FMAP provisions together reduce the bill's score by about 70
percent. We ask that the committee submit a request to the
Congressional Budget Office to either score S. 556 without the above
mentioned provisions, or provide a fiscal budget impact on H.R. 2440.
Conclusion. On behalf of the National Indian Health Board, I would
like to thank the committee for its consideration of my testimony and
for your diligence in making the health of American Indian and Alaska
Native people a high priority of the 108th Congress. I have been
involved with the National Steering Committee since its inception in
1999 and have seen the hard work and compromises that the tribal
leaders have made. Tribal leaders have come to the table to work out
the more contentious provisions and we urge the committee to act
swiftly on this important piece of legislation. Further, we request
that any concerns regarding this legislation are raised in a timely
manner so that passage of this bill during this session is not
jeopardized.
______
Buford Rolin, Member at Large, National Indian Health Board, Responses
to Questions
On behalf of the National Indian Health Board [NIHB], a non-profit
organization established in 1972 to serve nearly 558 federally
recognized tribal governments in advocating for the improvement of
health care delivery for American Indians and Alaska Natives, I am
pleased to respond to your letter dated August 1, 2003 regarding my
recent testimony on S. 556, the Indian Health Care Improvement Act
Reauthorization.
No. 1. Federal Medical Assistance Program [FMAP]. There appears to
be a concern that a 100-percent FMAP provision is too costly.
Question A--What is the purpose of the 100 percent FMAP and what
are the cost estimates used to determine the provision was too costly?
Response. The discussion of the 100 percent FMAP provision, section
212 of S. 556, has become quite complicated. The National Steering
Committee [NSC] endorses passage of a provision of law that will
clarify the intent of Congress and require full implementation of what
we, and many states, believe is existing law. We are hopeful that the
100 percent FMAP provision will compel the Centers for Medicare and
Medicaid Services [CMS] to do what we think it should already do.
After the Congressional Budget Office [CBO] issued its score on the
provision in S. 212, the predecessor to S. 556, and the Administration
expressed its objection to the provision, the NSC reluctantly
determined that the provision was likely to hinder efforts to
reauthorize the Indian Health Care Improvement Act and therefore agreed
to its removal from the bill in favor of free-standing legislation.
Current law states: ``the Federal medical assistance percentage shall
be 100 per centum with respect to amounts expended as medical
assistance 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 (as defined in section 1602 of
Title 25).''
42 U.S.C. Sec. 1396 (d) (b) (emphasis added.). The NSC believes
that ``through'' encompasses all services provided directly by the
Indian Health Service [IHS] and tribes and tribal organizations
operating health programs under the Indian Self-Determination and
Education Assistance Act [ISDEAA], as well as non-facility based
services--such as home and community-based services--and services that
the Indian health program would have paid for from its contract health
service program, but for the patient being Medicaid eligible. CMS has
generally interpreted ``through'' to mean ``in,'' applying the 100
percent FMAP only for services provided in an IHS or tribal facility.
Authorization of 100 percent reimbursement for States for services
provided through the IHS reflects Congressional understanding that the
obligation to provide health care to American Indians and Alaska
Natives is a Federal obligation deriving from the Constitution,
treaties and laws and paid for by tribes with hundreds of millions of
acres of land. Pragmatically, it serves to encourage States to
recognize the importance of IHS and tribal providers to ensuring that
Indians have access to culturally appropriate and sensitive health
care. Please see the response to question B for a more thorough
discussion of this latter point.
Unfortunately, the NSC is not privy to the CBO scoring methodology
or to information that may have been provided to CBO by CMS. We do
believe it is highly probable that the score is inflated substantially.
Many States have interpreted the current law to permit them to claim
exactly what is described in Sec. 212 of S. 556. Accordingly, they
have been claiming, and until recently, often been being reimbursed, at
that level. Thus, the expenditures are not new, but part of the current
budget.
Second, we believe it possible that the score includes an estimate
of the cost of all services to Indians by non-IHS providers whether
there was a referral from the IHS or tribal health program or not. This
would significantly inflate the score. The intent of the NSC is only
that services provided based on such a referral be included. By
limiting it in this way, the continuity of care for Indian patients and
the integrity of the Indian health system are retained.
The score was so high that it also makes us wonder if CBO was
relying on census numbers for estimating the number of Indians instead
of the number of active users in the Indian health system. What is
clear to us is that American Indians and Alaska Natives are not
receiving the benefit of services in amounts anywhere equivalent to the
CBO estimates and that the Indian health system continues to be
dramatically underfunded to carry out its mission. Both should be
remedied.
Question B--If FMAP is not enacted, is there a chance that some
States may not extend services to Indians unless the 100-percent FMAP
applies?
Response. The relationship between States and tribes varies
dramatically from State to State, administration to administration,
issue to issue. It ranges from enmity, to distrust, to indifference
with occasional shining lights of cooperation. The hostilities arise
typically from historical and present conflicts over control of
resources--land, minerals, water, tax base, to name a few. The
indifference arises from a view that since there is a direct Federal/
tribal government-to-government relationship, the State has no role.
This is reinforced by the human tendency to set priorities based on the
``out-of-sight out-of-mind'' principle under which rural and remote
communities suffer, including Indian communities. Increased
reimbursement for Medicaid expenditures won't cure all of this, but it
would be a substantial help.
After the execution of the 1996 Memorandum of Agreement between the
Health Care Financing Administration [HCFA] [now CMS] and IHS, many
States demonstrated a significantly higher willingness to work with IHS
and tribes to include them in their Medicaid programs as providers and
as programs able to assist Medicaid-eligible Indians to exercise their
right to participate in the Medicaid program. This did not happen
overnight and it continues to require diligence and outreach by IHS and
tribes, but gradually it did happen.
We hesitate to say that states will roll back their cooperation if
the narrower interpretations by CMS of their right of recovery is not
overcome, but in a time when all states are experiencing financial
pressures, particularly centered on their Medicaid programs, it is a
high risk. It is a risk we do not believe we should have to take.
No. 2. 1996 MOA between IHS and DHHS: The 1996 Memorandum of
Agreement between IHS and DHHS established a 100-percent FMAP which
applies to certain services provided by IHS and Tribal ``638'' programs
at their facilities.
Question--Does the MOA apply to tribes who provide programs that
are not contracted such as long-term care and, if not, should it?
Response. In our view the MOA did not change anything substantive
about the coverage. It makes tribal health facilities, health
facilities of the IHS, as if there were a lease between IHS and the
tribe, in order to avoid the wasteful exercise of IHS actually having
to enter into such leases. Whether the MCA extends to long-term care,
is really a question about whether the IHS and tribes should offer
long-term care health services, and whether tribes have the right to do
so, even if not directly funded by IHS to do so. We believe the answer
to all these questions is ``yes.'' Tragically, long-term care wasn't a
priority of the IHS because Indians did not live long enough to require
it. Tragically, long-term care couldn't be a priority because IHS was
so short-funded it could not meet acute care demand, let alone expand
to long-term care. Tragically, Indians who were reluctant to leave
their families and communities to receive long-term care simply had to
forego that option because there were few, if any, nursing homes on or
near reservations and predominantly Indian communities.
Thankfully, life expectancy is increasing and long-term care
doesn't only have to mean nursing home care, although it is still an
important component. Indian tribes and tribal organizations are
exercising their right to assume responsibility for carrying out
programs of the IHS under both Title I (self-determination) and Title V
(self-governance) of the ISDEAA and achieving efficiencies and program
improvements only imagined by the IHS under which they can exercise
authority to set priorities locally and redesign their programs
accordingly. Some tribes have even developed the capability of
contributing tribal resources to the mix of funding for health services
and this has meant expansion of services, including long-term care.
When this occurs, the MOA absolutely should cover tribal long-term
care. In our view, the better question would be why it shouldn't cover
long-term care.
Most health care expenditures come at the end of life--some of that
expense is due to long-term care. Why should Federal financial
participation in delivering health services to American Indians and
Alaska Natives end just at the point the expense becomes greatest?
No. 3. States Denying Care to Indians. Federal health care to
Indians arises from the special relationship with and obligations of
the United States. But, as U.S. citizens, Indians also have equal
access to other public health programs available to all other U.S.
citizens.
Question--Is the National Steering Committee aware of cases where
States have refused public health insurance coverage for eligible
Indians because of the belief that health care is a ``Federal
responsibility''?
Response. The National Steering Committee is not aware of a
consistent pattern of such refusals however, tribal leaders are aware
of individual cases where this has occurred at the application level.
Despite the well established Federal responsibility to provide health
services to American Indians and Alaska Natives, tribal members are
often discriminated against and are denied the opportunity to even
apply for other public health programs based on the ``Indians receive
free health care,'' misconception. The result is that tribal members
often avoid utilizing such resources in order to avoid such
discrimination and do not utilize those resources that are available to
them.
Another barrier that exists for tribal members in accessing
services outside of the HIS, Tribal, and Urban (I/T/U) system is the
eligibility application process. The application process is quite
lengthy and arduous, which discourages participation. Tribal leaders
are aware of these problems and are taking steps to address them, such
as working with States to increase participation.
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