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About Smoke signals. (Grand Ronde, Or.) 19??-current | View Entire Issue (Sept. 1, 2004)
Smoke Signals 3 SEPTEMBER 1,2004 CMS Waiver Thinking Ignores Tribal Sovereignty Result: Health care costs shift to Tribes By Ron Karten Like everybody, Oregon's Tribes are paying more for health care these days, but for the Tribes, the reason is not only the economics of health care, but also cheap politics It is another case of sovereignty de nied and the federal Department of Health and Human Services ac knowledges as much. When the state's 2002 Legislative Emergency Board ordered cuts to Oregon's Medicaid program, thou sands of Oregon Indians were among those slated to lose state health benefits. Confederated Tribes of Grand Ronde Chairwoman Cheryle Kennedy took the lead among Tribes in asking a legislative panel to exempt the Tribes from the cuts because Tribal funding is all fed eral. In short, she said, the state would save no money by cutting Natives from the Health Plan. Nevertheless, when Oregon Med icaid developed a second, lower level of care, a so-called "standard" plan, affecting as many as 100,000 of the state's poor, it included about 2,400 Natives. About 5,000 Native Americans continued to be covered by the state's "plus" plan for Oregon's neediest. The standard plan requires higher co-payments and does not provide non-emergency trans'jSorla tion, routine vision services, Services related to hearing aids, dental ser vices, medical equip ment, supplies, outpa tient mental health or chemical dependency services. Medicaid services have continued de creasing since then. Most recently, on July 1st, the Medicaid office began implementing a legislative directive to cut the standard benefit package by more than half. Sources at Oregon Medical Assistance Pro grams (OMAP) expect the Native population to be cut proportionately. While the cuts will be met as much as possible through attrition, the process has swept Oregon's Native popula tion into a circling-the-drain policy that abro gates longstanding treaty obligations, Supreme Court de cisions and federal regulations al ready on the books. Since the E-board's 2002 reduc tions, Oregon Tribes, the Oregon Legislature and the state's Medic aid office have worked together to exempt the Tribes from the cuts. The effort came in the form of Senate Bill 878 in the 2003 Oregon Legislature followed by a waiver request from the state Medicaid of fice to the federal Center for Medi care and Medicaid Services (CMS). The waiver has since landed in the federal Office of Civil Rights. It is being evaluated under the so called "strict scrutiny" provision of the 1964 Civil Rights Act. Title VI requires the state to show that the waiver is consistent with directives forbidding discrimination based on race, etc. Although no official decision has Medicaid program based on the sov ereignty issue. The Medicaid stat ute does not have any provisions that authorize CMS or the states to take actions based on Treaty rights or other sovereignty issues," she " have trouble understanding them not seeing that it is clearly a sovereignty issue. In the trea ties, there were promises made one group got land and the future folks got health care and education. It is the definition the federal gov ernment uses to address these groups." Deborah Cateora American Indian Alaska Native Program manager for OMAP been handed down, the word came back from Washington, according to Joan Kapowich, Program and Policy Section manager for OMAP, that "the overall leaning was to tell us, 'No, absolutely no'" to the ex emption. In short, the Civil Rights office considers the AIAN population a minority group and the request dis criminatory because it singles some out for benefits thaj others don't get. The stateTribal view holds that Tribes are sovereign nations and not a minority group among Americans. V V TV -----a--! "I have trouble understanding them not seeing that it is clearly a sovereignty issue," said Deborah Cateora, American Indian Alaska Native Program manager for OMAP. "In the treaties, there were promises made one group got land and the future folks got health care and education. It is the defi nition the federal government uses to address these groups." CMS spokeswoman Mary Kahn defended the civil rights argument with a statement from the department's Office of the General Counsel: "Neither CMS nor states are authorized to accord special treatment for individuals in the said. "Nothing could be further from the truth," said Jim Roberts, Policy analyst with the Northwest Area Indian Health Board. "A number of policy communications have ema nated from CMS on Indian health and Tribal issues specifically. If the comment is the truth, then CMS would not go out of its way to issue policy guidance to American Indi ans and Alaska Natives. They don't do it for other programs. Another knowledgeable source who declined to comment for attri bution agreed that the CMS state ment was an unexplainable turn around in policy. "It speaks to the mindset of an institution that doesn't understand the issues of Indians," Roberts said. CMS also blamed Congress for not specifically requiring consideration money is available to the Tribes for economic development, social ser vices and the housing needs of members. "As the Oregon Health plan gets skinnier and skinnier," said Michael Watkins, the Grand Ronde's Execu tive Health director, "it costs the Tribe more and more." For the smaller Burns-Paiute Tribe that does not have a health insurance plan for its members, funding expensive health services requires hard decisions, Watkins said. "One hospital stay has already cost the Coquille Tribe $40,000," said Edward Fox, Director of the Northwest Portland Area Indian Health Board. The costs also are likely to grow into other areas of Tribal govern ment, said Jim Roberts. When in dividuals do not receive drug and alcohol related services, for ex ample, courts and social service agencies are also likely to see in creased costs. "One could (also) argue that it could have a detrimental effect on the (Tribal) Trust relationship," said Roberts. With the stars lined up against Oregon's waiver request, the state withdrew its waiver request and is hoping to piggy-back on a CMS decision about a similar waiver be ing sought in the state of Washing ton. Washington seeks a waiver from co-pays and premiums for many children of the AIAN population. Washington also argued that "the exemption is based not on race or ethnicity but on a government-to-government relationship based on of sovereignty and other treaty trust obligations in CMS statutes. This is "something the senator will definitely be looking into," said Carolyn Espinoza, spokeswoman for Oregon Senator Gordon Smith. The actual cost to Tribes paying for those Indians booted from Oregon's standard plan varies by Tribe and changes with on-going cuts in the state's program. For the Confederated Tribes of Grand Ronde, which funds a health clinic for its members and also of fers a Tribe-funded insurance policy, the Medicaid cutbacks have driven many urban and other off rez Tribal members back to the Tribe for their health care needs trans lating into a cost-shift from Medic aid and the Indian Health Service to the Tribe. In addition to paying for in creased numbers, the Tribe also now pays for expensive dental and behaviorial health services cut off by Medicaid. All this means less Native Treaty Trust Rights, and that has been recognized by the Supreme Court," said Roger Gantz, Director of Policy and Analysis for the Washington State Department of Social and Health Services. In Morton v Mancari, the Su preme Court ruled, "Federal legis lation that singles out Indians for preferential treatment is not sub ject to strict scrutiny and will pass constitutional muster if it is ratio nally related to the government's unique trust responsibility to Indi ans." In its letter to CMS seeking a waiver for AIAN children, the state of Washington wrote: "It's objective is fully consistent with the hundreds of other federal programs which permissibly single out American Indians and Alaska Natives for spe cial or preferential treatment in fur therance of the Federal government's trust responsibility to Indians as defined by the Supreme Court in Mancari."
