NCUIH Requests Committee Action to Extend Medicaid Provisions Expiring in 2023

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On September 20, 2022, The National Council of Urban Indian Health (NCUIH) sent a letter to Chair Frank Pallone and Ranking Member Cathy McMorris Rodgers on the House Committee on Energy and Commerce requesting a markup on the Improving Access to Indian Health Services Act (H.R. 1888). This bill would establish permanent 100% Federal Medical Assistance Percentage (FMAP) for services provided to American Indian/Alaska Native (AI/AN) Medicaid beneficiaries at urban Indian Organizations (UIOs).  The American Rescue Plan (ARP) authorized 8 fiscal quarters of 100% FMAP to UIOs. However, the ARP provision expires in less than 5 months, and UIOs are not seeing the benefit of this provision. States are generally not increasing their Medicaid reimbursement rates to UIOs, resulting in states seeing the 100% FMAP savings intended to go to UIOs.

Full Letter Text

Dear Chair Pallone and Ranking Member McMorris Rodgers,

On behalf of the National Council of Urban Indian Health (NCUIH), the national advocate for health care for the over 70% of American Indians and Alaska Natives (AI/ANs) living off-reservation and the 41 Urban Indian Organizations (UIOs) that serve these populations, we write to request the markup of H.R. 1888. This bill would permanently establish a 100% federal matching rate, also known as the Federal Medical Assistance Percentage (FMAP), for Medicaid services provided at UIOs.  This bill would also permanently expand Medicaid coverage to include clinical services provided outside of a clinic by an Indian Health Service (IHS) facility, a tribe or tribal organization, or UIO.

Extending FMAP to UIOs

FMAP refers to the percentage of Medicaid costs covered by the federal government, which will be reimbursed to the states. In 1976, Congress passed the Indian Health Care Improvement Act (IHCIA) which amended the Social Security Act to add Section 1911. Section 1911 authorized reimbursement by Medicaid for services provided to AI/AN Medicaid beneficiaries at Indian Health Service (IHS) and Tribal health care facilities.1 In addition,  ICHIA amended section 1905(b) of the SSA to set the FMAP at 100% for Medicaid services received through an IHS facility, whether operated by IHS or by an Indian Tribe. When Congress first authorized 100% FMAP for the Indian healthcare system in 1976, it did so because it recognized that “Medicaid payments are . . . a much needed supplement to a health care program which has for too long been insufficient to provide quality health care to” AI/ANs and because “the Federal government has treaty obligations to provide services to Indians, it has not been a State responsibility.”2 Unfortunately, the IHCIA amendments to the SSA were not inclusive of UIOs, meaning that services provided at UIOs were not eligible for 100% FMAP under IHCIA’s authority.

In March of 2021, Congress enacted the American Rescue Plan Act of 2021 (ARPA). Section 9815 of ARPA authorized eight (8) fiscal quarters of 100% FMAP coverage for Medicaid services at provided UIOs. Congress intended Section 9815 in part to increase the financial resources available to UIOs and support the provision of critically needed health services to urban AI/ANs during the COVID-19 pandemic. However, the ARPA’s 100% FMAP extension to UIOs ends in less than 6 months, and UIOs have generally not seen any increased financial support because of this extension. Unfortunately, states are not increasing their Medicaid reimbursement rates to UIOs, citing the short-term authorization for the UIO 100% FMAP extension as a reason not to increase their reimbursement rates.

On March 23, 2021, the House Committee on Energy and Commerce held a legislative hearing on the Affordable Care Act, which included H.R. 1888. At the hearing, Representative Raul Ruiz emphasized that there is no sound policy reason for excluding UIOs from eligibility for 100% FMAP and advocated for the Committee to pass this critical piece of legislation to address this longstanding issue.  There has been strong support for the expansion of 100% FMAP to UIOs across Indian Country. For example, both the National Congress of American Indians and the National Indian Health Board have passed resolutions in support of extending 100% FMAP to UIOS. Additionally, there has been longstanding bipartisan congressional support for extending 100% FMAP to UIOs, with over 17 pieces of legislation having been introduced since 1999 on this issue.

The federal government has a trust responsibility to provide “[f]ederal health services to maintain and improve the health of the Indians.3 The federal government owes that duty to all AI/ANs, no matter where they live, and Congress has declared it the policy of the United States “to ensure the highest possible health status for Indians and urban Indians and to provide all resources necessary to effect that policy.”4 Permanent 100% FMAP for UIOs will further the U.S. government’s trust responsibility to AI/ANs by increasing the available financial resources to UIOs and supporting them in addressing the critical health needs of their AI/AN patients. We request the markup of H.R. 1888 to honor this trust responsibility and progress the health of all AI/AN people, regardless of their location. Thank you for your attention to this urgent matter.

FMAP Background

FMAP refers to the percentage of Medicaid costs covered by the federal government, which will be reimbursed to the states. In 1976, Congress passed the Indian Health Care Improvement Act (IHCIA) which authorized reimbursement by Medicaid for services provided to AI/AN Medicaid beneficiaries at IHS and Tribal health care facilities. This set FMAP at 100% for Medicaid services received through an Indian Health Service (IHS) facility, whether operated by IHS or by an Indian Tribe.

Congress first authorized 100% FMAP for the Indian healthcare system in 1976 because it recognized that “Medicaid payments are . . . a much needed supplement to a health care program which has for too long been insufficient to provide quality health care to AI/ANs.” However, UIOs were not included in this IHCIA authorization as an oversight, meaning that services provided at UIOs were not eligible for 100% FMAP.

ARPA FMAP Provision and Permanent 100% FMAP for UIOs

In March of 2021, Congress enacted the ARP, which authorized two years of 100% FMAP coverage for Medicaid services provided at UIOs. Congress did this in part to increase the financial resources available to UIOs and support the provision of critically needed health services to urban AI/ANs during the COVID-19 pandemic. However, ARPA’s 100% FMAP extension to UIOs expires in less than 6 months, and states are generally not increasing their Medicaid reimbursement rates to UIOs, citing short-term authorization as a reason not to increase their reimbursement rates. H.R. 1888 would remedy this problem and establish a permanent 100% FMAP rate for services provided at UIOs to ensure they can continue providing critical health services to their AI/AN patients.

This bill would also permanently expand Medicaid coverage to include clinical services provided outside of a clinic by an IHS facility, Tribe, tribal organization, or UIO. This has been a critical priority identified by Indian Country to ensure that services provided through an Indian health care program are eligible for reimbursement at the IHS all-inclusive rate, no matter where that service is provided.

Support for 100% FMAP to UIOs

On March 23, 2021, the House Committee on Energy and Commerce held a legislative hearing on the Affordable Care Act, which included H.R. 1888. At the hearing, Representative Raul Ruiz emphasized that there is no sound policy reason for excluding UIOs from eligibility for 100% FMAP and advocated for the Committee to pass this critical piece of legislation to address this longstanding issue.  Additionally, there has been longstanding bipartisan congressional support for extending 100% FMAP to UIOs, with over 17 pieces of legislation having been introduced since 1999 on this issue.

 There has also been strong support for the expansion of 100% FMAP to UIOs across Indian Country. For example, both the National Congress of American Indians and the National Indian Health Board passed resolutions along with NCUIH in support of extending 100% FMAP to UIOs.

The federal government has a trust responsibility to provide health services to maintain and improve the health of all AI/ANs, no matter where they live.  Congress has also declared it the policy of the United States to ensure the highest possible health status for AI/ANs and to provide all resources necessary to do so. H.R. 1888 is a critical piece of legislation that would further the federal government’s trust responsibility to AI/ANs by increasing the available financial resources to UIOs to better address the critical health needs of their patients and ultimately bolster the entire Indian Health system.

Next Steps

NCUIH will continue to advocate for the markup of H.R. 1888 and provide updates on its movement within Congress.

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NCUIH Signs Tribal Partner Organization Letter Requesting Legislative Fix to Carcieri v. Salazar

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On October 7, 2022, NCUIH signed on to a letter submitted by the United South and Eastern Tribes (USET) Sovereignty Protection Fund (SPF) to Senate Majority Leader Schumer. The letter calls on the Senate to pass a legislative fix addressing the Supreme Court’s decision in Carcieri v. Salazar, 222 US 379 (2009). The full text of this letter is available here.

Background

Carcieri v. Salazar Impact on Indian Country

In 2009, the Supreme Court issued its decision in Carcieri v. Salazar.  The case considered whether the Secretary of the Interior could use their authority pursuant to the Indian Reorganization Act (IRA) to take land into trust for the Narragansett Tribe.  The Court held that the IRA Act did not apply to Tribes that were not recognized by the federal government at the time the statute was enacted in 1934.  Since the Narragansett were not formally recognized by the federal government until 1983, the Court also held that the Secretary of the Interior did not have the authority to take land into trust for the Tribe.

 

According to testimony provided by Larry Echo Hawk, the Assistant Secretary for Indian Affairs in 2011, “The Carcieri decision was inconsistent with the longstanding policy and practice of the United States under the Indian Reorganization Act of 1934 to assist federally recognized tribes in establishing and protecting a land base sufficient to allow them to provide for the health, welfare, and safety of tribal members, and to treat tribes alike regardless of their date of federal acknowledgment.”  The Supreme Court’s decision has significantly impacted the federal government’s fee-to-trust process requiring the Department of the Interior (DOI) to engage in extensive legal and historical research prior to taking land into trust. In some cases, it has also stopped the DOI from taking land into trust for some tribes altogether.

Letter Highlights

In their October letter, USET notes that more than 13 years have passed since the Carcieri v. Salazar ruling, arguing that this decision jeopardizes the ability of federally recognized Tribal Nations to rebuild their communities and provide essential governmental programs. Tribal land bases are considered the foundation of Tribal sovereignty, and this ruling has sparked legal challenges, many of which threaten Tribal lands that have been in trust for decades, that aim to dismantle Tribal sovereignty altogether.  If this decision remains unaddressed, USET states that substantial litigation over existing trust lands will ensue.

In addition, USET explains that Tribal Nations have been expressing a desire for a legislative fix to Carcieri v. Salazar with two specific components. The first component is a restoration of the Secretary’s authority to take land into trust for all Tribal Nations. The second component is to reaffirm the existing Tribal government trust lands and the actions of the Secretary to take land into trust.

The letter also recognizes that H.R. 4352 (To amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the Interior to take land into trust for Indian Tribes, and for other purposes) is a critical piece of legislation necessary to stop the growing legal challenges threatening Tribal authority and overall sovereignty. In addition, USET goes on to express their support of enacting S. 4830 (A bill to reaffirm actions taken by the Secretary of the Interior for the benefit of Indian Tribes, and for other purposes). These bills would enable Tribal Nations and the Department to move forward in restoring their Tribal homelands. Congress has enacted similar legislation for specific Tribal Nations over the years, but this would make it so that Congress does not have to consider individual bills in a piecemeal fashion.

Next Steps

As a passionate supporter of Tribal sovereignty and strong Tribal economies, NCUIH was proud to sign the Tribal Partners Organization letter. NCUIH also signed on to a similar letter in April with other leading American Indian and Alaska Native advocacy organizations.

NCUIH urges Congress to pass legislation that restores the Secretary of the Interior’s authority to take land into trust for all federally recognized Tribes and which reaffirms the status of existing Tribal trust lands.

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Bivalent COVID-19 Targeting Vaccine Formula Approved as Booster for 5-11 Year Olds

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On October 12, 2022, the US Food and Drug Administration (FDA) amended the previously issued emergency use authorizations (EUAs) for both the Moderna COVID-19 and Pfizer-BioNTech COVID-19 bivalent vaccine formulas, authorizing their use as a single booster dose for those 5-11 years old. Following FDA’s announcement, Centers for Disease Control (CDC) released a decision memo, signed by Director Rochelle Walensky, expanding the recommendations for the use of bivalent vaccines matching the EUA expansions. As such, the Moderna formulation is now available for use in children six and older, at least two months post-completion of a primary series or previous booster dose. The Pfizer formulation is now authorized for use in children five and older, at least two months post-completion of a primary series or booster dose.

Background

American Indians and Alaska Natives (AI/ANs) have been disproportionately affected by the COVID-19 pandemic. At the height of it, AI/ANs were 3.5 times more likely to test positive, 3.2 times more likely to be hospitalized, and 2.2 times more likely to die due to COVID-19. Indian country has had highly successful vaccine rollouts and urban Indian organizations (UIOs) have been instrumental in the success of vaccinating AI/AN populations in urban areas. As of October 2022, AI/ANs have some of the highest vaccination administration rates in the US with 75.7% of AI/ANs having received at least one dose, and 62.9% having completed the primary series. However, just under half of AI/ANs (47.3%) have received their first booster, and even less have received the second booster dose (37.4%), per CDC data.

The National Council of Urban Indian Health (NCUIH) will continue to monitor and provide updates on any changes in COVID-19 vaccine guidance, or other COVID-19 updates. For more information on the changes to COVID-19 vaccine guidance or the success UIOs have had with the vaccine rollout, see below:

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