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."