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Spilyay Tymoo, Warm Springs, Oregon
August 5, 2015
Around Indian Country
Tribes scramble to avoid
$1 million fines under
Affordable Care Act
BILLINGS, Montana - Diabetes patient Jay
Littlewolf says he sought medical help for a diabetic
ulcer at a Billings hospital after not receiving “adequate
health care through the IHS in Lame Deer." He wants
reimbursement from the IHS and sought Sen. Jon
Tester's assistance.
Montana’s Indian tribes, which until recently thought
the Affordable Care Act would pass them by, could
face fines exceeding $1 million for not offering insur-
ance to employees.
Beginning in 2016, businesses with 50 or more full-
time workers will have to offer at least a minimum
amount of health insurance to employees. Those who
don’t comply face tax penalties, and that includes tribal
governments.
The requirement has been a surprise to tribes, said
George Heavy Runner, Blackfeet Insurance Services
health and wellness coordinator. As individuals, Ameri-
can Indians have the option of choosing not to follow
Affordable Care Act rules. Many assumed tribal gov-
ernments, which are sovereign, had that same option.
“We thought this was a ship kind of passing us by,”
Heavy Runner said. “But it’s not just a ship passing
through the night. We have been identified in this leg-
islation, just not where we thought we would be.”
Tax penalties facing the Blackfeet Tribe for not
complying could be as high as $1.1 million. Crow Tribal
Chairman Darrin Old Coyote told The Gazette the
size of the fee depends on how many people a tribal
government employs.
“If we don’t do the mandate, we’re going to be
fined for the number of employees we have, and that
number could be up to $1.5 million,” Old Coyote said.
“We pay federal tax, and our employees pay federal
tax and so we’re part of the large employer mandate.”
The tribes can avoid the fees by offering the insur-
ance to their workers. Old Coyote said the Crow have
hired a benefits manager to do just that.
The change caught tribes off-guard because Ameri-
can Indians by treaty receive health care via the In-
dian Health Service on reservations. IHS is much
maligned by tribal members for not providing adequate
health care and for not covering services by special-
ists outside the IHS program.
Because IHS is limited, tribal members who work
for their government would benefit from having other
health care, Old Coyote said. The challenge is having
a health care plan to offer by next year.
Suing to get off the employer mandate has already
been tried. In February, Wyoming’s Northern Arapaho
Tribe failed to convince a federal judge to block the
employer mandate. The Northern Arapaho argued that
subjecting tribes to the employer mandate was an over-
sight that overlooked treaty rights related to Indian
health care, while also stating that tax credits and ben-
efits granted to Indians under the Affordable Care
Act would be denied.
Earlier this month, Montana Republicans Sen.
Steve Daines and Rep. Ryan Zinke announced a bill
to exempt tribes from the employer mandate. Daines
called the mandate a job killer for tribal governments,
who wouldn’t hire as many employees if they had to
pay significant penalties.
Other sponsors of the bill, such as Republican Sen.
John Thune, of South Dakota, said it was unfair to
exempt individual tribal members and not exempt
tribal governments as well.
However, exempting tribes from the employer
mandate won't help the nagging problems with Indian
health care, said a representative for Sen. Jon Tester,
D-Mont.
"This bill does nothing to solve the underlying prob-
lem, which is crisis-level health disparities among Na-
tive Americans," said Marnee Banks. "If we are seri-
ous about increasing access to quality health care in
Indian Country, we will expand Medicaid and adequately
fund the Indian Health Service."
IHS spending on Indian patients was $2,741 per
person in 2013, according to the National Congress
of American Indians, which asserts that IHS is se-
verely underfunded. Medicaid spending, by compari-
son was $5,841.
The state of Montana is awaiting federal approval
of the state's plan to begin offering Medicaid to Mon-
tanans earning up to 138 percent of the federal pov-
erty level.
Medicaid expansion would extend benefits to as
many as 11,000 tribal members over the next four
years, said Jon Ebelt of Montana’s Department of
Public Health and Human Services. The program
would benefit tribal health care in general, Ebelt said.
“Medicaid expansion revenue will be critical for
building health infrastructure, expanding the workforce,
and keeping health care providers in tribal communi-
ties,” Ebelt said. “Medicaid revenues will bring new
funds to the programs and further investment in the
Indian health system infrastructure and workforce. This
is an opportunity to provide more health care ser-
vices, create more jobs and employ more Native Ameri-
cans in tribal communities.”
Old Coyote said he’s concerned that state benefits
representatives won’t be able to clearly explain the ex-
panded Medicaid program to some Crow Indians who
speak Crow as their primary language.