Trump challenges Native Americans’ historic standing
By Dan Diamond
04/18/2018 03:56 PM EDT
Native Americans say they should be exempt from Medicaid work requirements, which tribes say put their health at risk and threaten their centuries-old relationship with the U.S. government.
The Trump administration disagrees.
The dispute hangs on a question with ramifications far beyond health benefits. Are the tribes a racial group seeking preferences, or do they have special status as a separate government with protections enshrined in the U.S. Constitution?
“The United States has a legal responsibility to provide health care to Native Americans,” said Mary Smith, who was acting head of the Indian Health Service during the Obama administration and is a member of the Cherokee Nation. “It’s the largest prepaid health system in the world — they’ve paid through land and massacres — and now you’re going to take away health care and add a work requirement?”
Tribal leaders cite precedents for federal health program exemptions. Native Americans don’t have to pay penalties for not having health coverage under Obamacare’s individual mandate, for instance.
HHS confirmed it has rebuffed the tribes’ request on Medicaid work rules several times. CMS Administrator Seema Verma conveyed the decision in January, and officials communicated it most recently at a meeting with the tribes last week.
“Senior HHS officials have made it clear that HHS is open to considering other suggestions that tribes may have with respect to Medicaid community engagement demonstration projects,” spokesperson Caitlin Oakley said, using the administration’s term for work requirements that can also be fulfilled with job training, education and similar activities.
The decision to reject the request was driven by political appointees in HHS’ general counsel and civil rights offices, say three individuals with knowledge of the decision.
The Trump administration has concluded the tribes are a race and exempting them from Medicaid work rules — which have been approved in three states so far and are being sought by at least 10 others — would be illegal preferential treatment. “HHS believes that such an exemption would raise constitutional and federal civil rights law concerns,” according to a review by administration lawyers.
Instead, the Trump administration maintains that Native Americans should meet the same requirements as other able-bodied adults seeking to qualify for Medicaid in states that are imposing work rules.
But the tribes say that any claim of “racial preference” is moot because they’re constitutionally protected as a separate government, dating back to treaties hammered out by President George Washington and reaffirmed in recent decades under Republican and Democratic presidents alike, including the Clinton, George W. Bush and Obama administrations.
And they worry that Medicaid work rules are just the start; President Donald Trump is eyeing similar changes across the nation’s welfare programs, which many of the nearly 3 million Native Americans rely on.
“It’s very troublesome,” said Caitrin McCarron Shuy of the National Indian Health Board, noting that Native Americans suffer from the nation’s highest drug overdose death rates, among other health concerns. “There’s high unemployment in Indian country, and it’s going to create a barrier to accessing necessary Medicaid services.”
Native Americans’ unemployment rate of 12 percent in 2016 was nearly three times the U.S. average, partly because jobs are scarce on reservations. Low federal spending on the Indian Health Service has also left tribes dependent on Medicaid to fill coverage gaps.
“Without supplemental Medicaid resources, the Indian health system will not survive,” W. Ron Allen — a tribal leader who chairs CMS’ Tribal Technical Advisory Group — warned Verma in a Feb. 14 letter.
The Trump administration has allowed three states — Arkansas, Kentucky and Indiana — to begin instituting Medicaid work requirements, and at least 10 other states have submitted or are preparing applications. More than 620,000 Native Americans live in those 13 states, according to 2014 Census data. And more states could move in that direction, heightening the impact.
Some states, like Arizona, are asking HHS for permission to exempt Native Americans from their proposed work requirements. But officials at the National Indian Health Board say that may be moot, as federal officials can reject state requests.
Tribal officials say that their planning process has been complicated by HHS’ refusal to produce the actual documents detailing why Native Americans can’t be exempted from Medicaid work requirements. “The agency’s official response was that they couldn’t provide that [documentation] because of ongoing, unspecified litigation,” said Devin Delrow of the National Indian Health Board. HHS did not respond to a question about why those documents have not been made available.
While the tribes say they’re hoping to avoid a legal fight, their go-to law firm — Hobbs, Straus, Dean & Walker LLP — in February submitted a 33-page memo to the Trump administration, sternly warning officials that the health agency was violating its responsibilities.
“CMS has a duty to ensure that [Native Americans] are not subjected to state-imposed work requirements that would present a barrier to their participation in the Medicaid program,” the memo concludes. “CMS not only has ample legal authority to make such accommodations, it has a duty to require them.”
Meanwhile, tribal leaders say the Trump administration has signaled it may be seeking to renegotiate other aspects of the government’s relationship with Native Americans’ health care, pointing to a series of interactions that they say break from tradition. For instance, a dental health service sought by a Washington state tribe was challenged by HHS in November, also on grounds that it would constitute an illegal preference for Native Americans.
“This doesn’t seem to be isolated to the work requirements,” said McCarron Shuy of the National Indian Health Board.
The Trump administration also targeted the Indian Health Service for significant cuts in last year’s budget, although Congress ignored those cuts in its omnibus funding package last month, H.R. 1625 (115). The White House budget this year proposed eliminating popular initiatives like the decades-old community health representative program — even though tribal health officials say it is essential.
Tribal officials noted that both HHS Secretary Alex Azar and Deputy Secretary Eric Hargan skipped HHS’ annual budget consultation with tribal leaders in Washington, D.C., last month. The secretary’s attendance is customary; then-HHS Secretary Tom Price joined last year. However, Azar canceled last-minute. His scheduled replacement, Hargan, fell ill so Associate Deputy Secretary Laura Caliguri participated in his place. That aggravated tribal leaders who were already concerned about the Trump administration’s policies.
Another point of contention for the tribes is that HHS’ civil rights office — while rejecting Native Americans’ Medicaid request on grounds that they’re seeking an illegal preference — simultaneously announced new protections sought by conservative religious groups.
HHS further stressed that the administration remains committed to Native Americans’ health.
“Secretary Azar, HHS, and the Trump Administration have taken aggressive action and will continue to do so to improve the health and well-being for all American Indians and Alaska Natives,” according to HHS spokesperson Oakley.
But tribal leaders and public health experts say the administration’s record hasn’t matched its rhetoric. “Work requirements will be devastating,” said Smith, the former Indian Health Service acting director. “I don’t know how you would implement it. There are not jobs to be had on the reservation.”
Rachana Pradhan contributed to this report.