Commonwealth Fund’s 2023 Scorecard Reveals Alarming Disparities In Maternal Health For Native Communities Across The US

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On July 22, 2023, the Commonwealth Fund released a Scorecard ranking every state’s health care system based on how well it provides high-quality, accessible, and equitable health care. The Commonwealth Fund’s 2023 Scorecard on State Health System Performance includes a new dimension focused on Reproductive Care and Women’s Health, which measures health outcomes and access to important services for women, mothers, and infants – including for American Indians and Alaska Natives (AI/ANs). The Scorecard reports high and increasing rates of maternal mortality, with AI/AN women facing the highest rates of maternal mortality during the pandemic. Due to barriers such as cost, discrimination, and lack of cultural competency, AI/AN communities throughout the country, including urban AI/AN communities, experience significant maternal and infant health disparities compared to the general population.

U.S. maternal mortality rate graph

According to the Scorecard, the maternal death rate for AI/AN women jumped by nearly 70 deaths per 100,000 live births between 2019 and 2021, putting them well above other racial and ethnic groups. Among the likely causes were the greater burden of COVID-19 in AI/AN communities; higher rates of poverty, food insecurity, and other social risk factors; and disparities in insurance coverage and quality of care.

The convergence of the prolonged pandemic, existing maternal mortality crisis, and barriers to reproduce healthcare access, including the overturning of Roe v. Wade, poses significant challenges for women’s health, especially AI/AN women. Restrictive abortion laws and poor health outcomes are correlated, and there is concern that existing gaps in reproductive care may widen in the future. AI/AN women face challenges in accessing timely and affordable healthcare and are affected by the behavioral health crisis and the lingering effects of COVID-19.

AI/AN Maternal and Infant Health Disparities

According to the Office of Minority Health (OMH), Native infants have almost twice the infant mortality rate as non-Hispanic whites.  Native infants are also almost three times more likely than non-Hispanic whites to die from accidental deaths before the age of one year. Contributing factors to these disparities include cost, discrimination, and lack of cultural competency during prenatal care. Additional ongoing and historical trauma due to colonization, genocide, forced migration, and cultural erasure also contribute to health inequities, including pregnancy-related deaths and other maternal health conditions. Approximately 41% of AI/AN women cite cost as a barrier to receiving the recommended number of prenatal visits and 23% of AI/ANs report they have faced discrimination in clinical settings due to being an AI/AN. Consequently, AI/AN people are more likely to have underlying chronic health conditions, and they face systemic barriers to care including higher rates of poverty and needing to travel long distances to receive quality health care services.

NCUIH and UIO Work on AI/AN Maternal and Infant Health.

UIOs provide a range of services such as primary care, behavioral health, traditional, and social services— including those for infants, children, and mothers. At least 23 of these clinics provide care for maternal health, infant health, prenatal, and/or family planning. They also provide pediatric services and participate in maternal-child care programs such as WIC and the Health Resources and Services Administration (HRSA) Maternal, Infant, and Early Childhood Home Visiting program (MIECHV).

The National Council of Urban Indian Health (NCUIH) has engaged in extensive advocacy on behalf of AI/AN mothers and infants and for increased funding and support to the UIOs which provide maternal health, infant health, prenatal, and family planning services to AI/AN mothers and infants.  In March 2022, NCUIH signed onto a letter to Congress led by the National Home Visiting Coalition in support of reauthorizing HRSA’s MIECHV program and doubling the Tribal set-aside – which includes UIOs. Earlier this year, NCUIH submitted comments to the Administration for Children and Families (ACF) recommending that ACF ensure urban Native communities are participating in the Tribal MIECHV program by hosting an Urban Confer with UIO leaders to discuss the program and working with its colleagues at IHS to host and facilitate an Urban Confer on the annual reporting requirements. Additionally, in August 2022, NCUIH submitted comments to the HRSA Maternal and Child Health Bureau (MCHB) regarding the Pediatric Mental Health Care Access Program. In our comments, we have continued to stress the critical importance of including urban Native populations in HRSA’s overall efforts to improve health outcomes for all AI/ANs living on and off reservations.

NCUIH has also worked closely with HRSA’s Advisory Committee on Infant and Maternal Mortality (ACIMM) on AI/AN maternal and infant health issues. On September 14, 2022, NCUIH’s Vice President of Policy and Communications, Meredith Raimondi, testified before the HRSA ACIMM on urban Indian disparities and policy changes to address these disparities, and on December 7, 2022, the NCUIH provided recommendations to the ACIMM to ensure the needs of off-reservation AI/AN mothers were included in their report to the Department of Health and Human Services (HHS) Secretary Xavier Becerra titled: “Making Amends: Recommended Strategies and Actions to Improve the Health and Safety of American Indian and Alaska Native Mothers and Infants”.

 

CMS Released Medicaid and CHIP Mental Health and Substance Use Disorder Action Plan and Overview Guide

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On July 25, the Centers for Medicare & Medicaid Services (CMS) released the Medicaid and CHIP Mental Health (MH) and Substance Use Disorder (SUD) Action Plan Overview and Guide, which outlines the agency’s strategies for improving treatment and support for enrollees with these conditions. Areas of focus include improving coverage and integration to increase access to prevention and treatment services, encouraging engagement in care through increased availability of home and community-based services and coverage of non-traditional services and settings, and improving quality of care for MH conditions and SUDs. The areas target issues that impact American Indians and Alaska Natives such as improving coverage of mental health and substance abuse disorder screening and therapies and promoting parity by supporting connection to health care coverage.  

  • Access the Action Plan Overview here. 
  • Access the Action Plan Guide here. 

Background 

The Action Plan is CMS and CHIP’s latest step in addressing MH and SUD. In March 2016, CMS finalized a rule targeting MH and SUD parity. The goal of the rule was to benefit the over 23 million people enrolled in Medicaid managed care organizations (MCOs), Medicaid alternative benefit plans (ABPs), and CHIP. It required plans to disclose information on MH and SUD benefits upon request- including the criteria for determinations of medical necessity- and required states to disclose the reason for any denial of reimbursement or payment for services with respect to MH and SUD benefits. 

NCUIH’s Advocacy 

NCUIH advocates on behalf of urban Indian organizations (UIOs) and urban American Indians and Alaska Natives to raise awareness of the impacts of MH conditions and SUDs in American Indian and Alaska Native communities. NCUIH outlined the disproportionately high rates of MH conditions and SUDs among American Indians and Alaska Natives in its 2023 Policy Priorities. To address this, NCUIH continues to urge Congress to appropriate $80 million for Behavior Health and Substance Abuse Disorder Resources for American Indians and Alaska Natives, which was authorized in the Fiscal Year 2023 omnibus. NCUIH also advocates for expanding access to traditional healing services at UIOs. NCUIH also recommends Congress remove funding restrictions in grants to allow for traditional healing services at UIOs, that HHS review its existing policies concerning use of federal funding, and that federal agencies engage with UIOs directly to support expansion of traditional healing services.  

NCUIH will continue to advocate on behalf of UIOs and American Indians and Alaska Natives to receive culturally based care to address their MH conditions and SUDs. 

CMS Releases Guidance On Mandatory Coverage Requirements For Adult Vaccines

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On June 27, the Centers for Medicaid and Medicare Services (CMS) released guidance on mandatory coverage requirements for adult vaccines (section 11405 of the Inflation Reduction Act (IRA) (Pub. L. 117-169)). In August 2022, President Biden signed the IRA of 2022 (P.L. 117-169) into law. The IRA amended the Medicaid and Children’s Health Insurance Program (CHIP) statutes to require Medicaid and CHIP coverage and payment without cost sharing beginning October 1, 2023, for U.S. Food and Drug Administration (FDA) approved adult vaccines recommended by the Advisory Committee on Immunization Practices (ACIP) and their administration.

Read the full guidance here: https://www.medicaid.gov/federal-policy-guidance/downloads/sho23003.pdf

Overview of Guidance

State Medicaid and CHIP programs must cover vaccines that are approved by the FDA for use by adult populations and administered in accordance with ACIP recommendations. CMS does not interpret the IRA-required coverage to include vaccines that FDA has authorized for use under emergency use authorization but has not approved. CMS interprets the statutory references to “adults” to mean persons age 19 and older. This coverage requirement will go into effect on October 1, 2023, and applies in both fee-for-service and managed care. Also, effective October 1, 2023, the statutory amendments made by the IRA modify the requirements that states must meet in order to claim a one percentage point increase in the federal medical assistance percentage (FMAP) for certain services described in sections 1905(a)(13)(A) and (B) and 1905(a)(4)(D) of the Social Security Act (the Act).

Background on the IRA and Adult Vaccines

Prior to the effective date of the IRA’s amendments, Medicaid coverage of vaccines and vaccine administration is mandatory in certain circumstances; otherwise, coverage is at a state’s option. Coverage varied based on age, health history, and recommendations from ACIP. Medicaid programs were also required to cover COVID-19 vaccines and their administration under the American Rescue Plan Act. Additionally, states could choose to cover adult vaccines recommended by ACIP and claim a one percentage point FMAP increase.

Section 1905(a)(13)(B) of the Act defines the covered services as approved vaccines recommended by the ACIP and their administration. The coverage applies to FDA-approved vaccines for use in adult populations and administered in accordance with ACIP recommendations.

July Policy Updates: Interior Bill & IHS Funding, Supreme Court Updates, and Important Dates

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Welcome to the July edition of our monthly policy newsletter, delivering the latest updates and insights on key developments.

1 Big Thing: House Advances Interior Bill with Advance Appropriations and a Modest Increase for Indian Health Service

Interior Bill 2024

On July 18, 2023, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies released the Committee Bill Report for the fiscal year (FY) 2024 budget.

  • IHS Funding: The bill would authorize $7.078 billion for the IHS for FY24. That’s $149.4 million of the FY23 enacted level.
  • Advance Appropriations: The bill also provides $5.878 billion in advance appropriations for FY 2025.​
  • Urban Indian Health: Includes the President’s proposed amount of $115.156 million for urban Indian health for FY24.
  • CSC and Tribal Leases: The Subcommittee rejected the administration’s proposal and Tribal requests to make contract support costs and Tribal leases mandatory spending.​
  • The full Committee held a markup on July 19 and approved the FY 2024 Interior appropriations bill by a vote of 33 to 27. ​

What they’re saying: Rep. Mike Simpson (R-ID-2) on the Interior Markup:

“I am pleased that the bill provides a fiscal year 2025 advance appropriation for the Indian Health Service and it’s very important that we do that. I made a commitment from the start of this that we were not going to balance this budget on the backs of our Indian brothers and sisters, and we kept that commitment in this bill. It is a bipartisan commitment. We have a moral and a trust responsibility to the Indians of this country, and we need to make sure that we are trying to address that. We still have a long way to go, but we are moving in the right direction.”

What’s next: The bill has now passed out of committee and referred to the House floor. The Senate will be marking up the Interior Appropriations bill on July 27 at 10:30 a.m.

Go deeper:

Partnership and Advocacy: Tribal Sovereignty Payments for FY 2024

Partnership

On July 12, 2023, NCUIH joined the National Indian Health Board (NIHB) and 21 Tribal Nations and Native partner organizations in sending a letter to House and Senate leadership regarding the Administration’s proposed FY 2024 Interior, Environment, and Related Agencies Appropriations Bill. The letter expresses support for the President’s FY 2024 proposal to reclassify Contract Support Costs and Section 105(l) Tribal Lease Payments as mandatory appropriations and to increase program administration staff. The letter also urges Congress to include the proposal in their FY 2024 Interior bill.

Supreme Court Updates

Illustration of two gavels forming an x in front of the Supreme Court building

Department of Interior v. Navajo Nation​

  • On June 22, the Court held in a 5-4 decision that while the treaty establishing the Navajo Reservation reserved the necessary water to accomplish the purpose of the Navajo Reservation, it did not require the United States to take affirmative steps to secure water for the Tribe.​​
  • This means that the government does not have an enforceable trust responsibility to secure water for the Tribe under the Treaty.​​
  • Relation to UIOs: This holding further limits the scope of the enforceability of the trust responsibility.​​

Upcoming SCOTUS Cases for the 2023 term:

Loper Bright Enterprises v. Raimondo

  • Case out of the D.C. Circuit, granted cert by SCOTUS in April.
  • This case centers around whether a foundational case in Administrative Law, Chevron v. Natural Resources Defense Council, should be overruled. Under Chevron, a court must defer to a federal agency’s interpretation of an ambiguous statute so long as the agency’s interpretation is reasonable.
  • If Chevron were to be overruled, federal agencies will be much more vulnerable to lawsuits for statutory interpretations as courts would no longer have to defer to an agency’s “reasonable” interpretation. This could cause a patchwork of enforceability for agency actions across circuits depending on the judicial interpretation. ​
  • Relation to UIOs: If the Court decides to overrule Chevron, it would likely affect federal policies and programs and how federal agencies interact with UIOs regarding such policies and programs. ​

United States v. Rahimi

  • Case out of the 5th. Circuit, granted cert by SCOTUS in June.
  • This case centers around whether a federal law that prohibits the possession of firearms by persons subject to domestic violence restraining orders violates the Second Amendment.​
  • Relation to UIOs: If the Court determines that the law does violate the second amendment, it could loosen protections for persons who have filed domestic violence restraining orders in certain jurisdictions. This could potentially have an effect on UIO domestic violence work as well as work relating to Missing and Murdered Indigenous Peoples.

NCUIH Provides Comments on IHS Mandatory Funding & Access to Medicaid​​

IHS

On June 30, NCUIH submitted comments to the Office of Management and Budget (OMB) in support of IHS Mandatory Funding.

On July 3, NCUIH submitted comments to the Centers for Medicaid and Medicare Services (CMS) on Ensuring Access to Medicaid​.

Our thought bubble: NCUIH recommended that CMS take the following actions:​

  • Ensure AI/AN representation on each state Medicaid Advisory Committee (MAC) and Beneficiary Advisory Group (BAG)​.
  • Ensure the rule does not impose additional burdensome reporting requirements on providers​.
  • Engage with the Tribal Technical Advisory Committee (TTAG) to consider regulations or guidance to enforce the state consultation and confer requirements​.
  • Support 100% Federal Medical Assistance Percentage (FMAP) for Medicaid services provided at UIOs to ensure AI/AN Medicaid beneficiaries receive appropriate, quality culturally competent care​.

Upcoming Comments and Submissions​:

  • August 21 – Comment deadline to the Department of Veterans Affairs (VA) Request for Data Information on Minority Veterans​.

NCUIH Research Project Update

NCUIH

NCUIH Federal Relations Manager Alexandra Payan and Research Associate Nahla Holland gave updates to CMS Office of Minority Health on NCUIH’s NORC reports and research on PCCM programs/IMCEs and traditional healthcare practices at UIOs.

NCUIH is currently participating in its third year of a research project commissioned by CMS through a contract with NORC at the University of Chicago.​

This year’s report provides an analysis of two topics:​

  • Primary Care Case Management (PCCMs) and Indian Managed Care Entities (IMCEs)​
  • Traditional Health Care Practices​

What’s next: CMS has invited NCUIH to present the report findings during the July 2023 in-person TTAG meeting in Washington DC.

Upcoming Events and Important Dates

Calendar with events on it

Upcoming Opportunities:

  • The VA Office of Tribal Government Relations (OTGR), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Tribal and Indian Affairs (“the Committee”) to represent the following IHS Areas: Bemidji; California; Great Plains; Nashville; Navajo; Tucson. Nominations for membership on the Committee must be received no later than 5:00 PM Eastern on August 1, 2023, and should be mailed to OTGR at 810 Vermont Ave. NW, Suite 915H (075) or emailed to tribalgovernmentconsultation@va.gov. Individuals interested in participating in this Committee and who are located in the open IHS areas should work with local Tribes and tribal organizations to be nominated.
  • The VA extended eligibility for VA health care for certain Veterans of the Vietnam, Gulf War, and post-9/11 eras pursuant to the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics (PACT) Act. SUBMIT your PACT Act claim by August 9 to be eligible for backdated benefits back to August 10, 2022.
  • On June 29, 2023, IHS Director Roselyn Tso released a Dear Tribal Leader Letter and Dear Urban Indian Organization Leader Letter giving an update on the IHS Health Information Technology (HIT) Modernization by sharing an opportunity for interested Tribal and UIOs sites to become directly involved in the collaborative planning for the new IHS enterprise electronic health record (EHR) solution. Interested UIOs are encouraged to complete and submit a Statement of Interest form by e-mail to modernization@ihs.gov and cc Policy@ncuih.org. There is no deadline for submitting the form.

Upcoming Events:

  • July 20​- Medicare, Medicaid, and Health Reform Policy Committee (MMPC) Regulations Workgroup Meeting​
  • July 25​- MMPC Face-to-Face Prep Session for TTAG Meeting (in-person)​
  • July 26-27​- CMS TTAG Face-to-Face Meeting (in-person)​
  • July 27​- IHS Urban Program Executive Directors/Chief Executive Officers Monthly Conference Call​
  • August 1​- NCUIH Board of Directors Meeting
  • August 2​- Tribal Consultation/Urban Confer: Health IT Modernization Leaders Engaging in Governance​
  • August 2-3​- Not Invisible Act Commission National Virtual Hearing​
  • August 3​- MMPC Regulations Workgroup Meeting​
  • August 16​- FY25-FY26 Tribal Budget Formulation Planning and Evaluation Meeting (Hybrid)​

ICYMI:

On June 20-21, IHS National Tribal Advisory Committee (NTAC) on Behavioral Health led a meeting​:

  • Dr. Segay, Director of the Division of Behavioral Health (DBH), noted that sections of the Indian Health Manual are being updated, specifically in sections focused on mental and behavioral health. ​

On June 30, CMS held a meeting with TTAG and STAC regarding the Four Walls Fix​:

  • CMS is considering revising its clinical regulations to tackle the Four Walls limitation, with the grace period for providing services outside of the clinic extended until Feb. 2025, but there are no guarantees regarding the outcomes as it may not be achievable through regulation.​

On July 11, IHS held a meeting on the Overview of the Updated Policy on Conferring with UIOs:

  • IHS will prepare a report to the UIOs with confer satisfaction results. The IHS will document and follow up on any unresolved issues that would benefit from the ongoing involvement of the affected UIO upon the completion of any of the conferring activities. ​
  • Documentation of the conferring process and outcome will be maintained by the Office of Urban Indian Health Programs Headquarters office and area offices in which the affected UIOs are located​.

On July 13, IHS held a July Tribal and UIO Leaders Call:

  • The next Tribal and UIO leader call is set for August 3, 2023, and the 2023 IHS Partnership Conference will take place in Atlanta, GA, from August 22-24, 2023, with registration available until August 9th​.
  • There are also new Area Directors appointed, ongoing Covid-19 supplemental appropriations, and specific requirements outlined in the Fiscal Responsibility Act for FY 2024 and FY 2025 appropriations, including the need for Congress to pass full-year versions of all 12 appropriations bills by January 1, 2024.​

Strengthening Relationships and Building Community at NCUIH

Tester and Rogers

Senator Tester and NCUIH Summer Intern Tyler Rogers

On June 20, NCUIH attended the Poarch Band Creek Indians Legislative Reception.

Denver Indian Health and Family Services

Denver Indian Health and Family Services welcomes NCUIH!

NCUIH held its All Staff Retreat in Denver, Colorado from July 10-14 and staff visited the UIO, Denver Indian Health and Family Services.

NCUIH staff at Denver UIO

ncuih wellness activity

NCUIH staff participate in a cultural wellness activity hosted by the Denver UIO.

ncuih staff at red rocks

NCUIH Staff Photo

NCUIH visits Red Rocks Park in Denver.

Thank you for all your hard work and advocacy!

Health Information Technology Modernization Update: IHS requests statements of Interest from Tribes and Urban Indian Organizations

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On June 29, 2023, Indian Health Service (IHS) Director Roselyn Tso released a Dear Tribal Leader Letter and Dear Urban Indian Organization Leader Letter giving an update on the IHS Health Information Technology (HIT) Modernization by sharing an opportunity for interested Tribal and Urban Indian Organization (UIOs) sites. Specifically, Tribal and UIO sites can become directly involved in the collaborative planning for the new IHS enterprise electronic health record (EHR) solution. IHS is requesting sites that may wish to participate with the IHS on shared enterprise solution planning efforts to complete and submit the Statement of Interest form. This non-binding Statement of Interest will help the IHS understand which sites are interested in becoming part of the IHS enterprise EHR solution partnership. It asks for limited details about those organizations, such as facility size, current EHR utilization, and point(s) of contact. Interested UIOs are encouraged to complete and submit Statements of Interest by e-mail to modernization@ihs.gov and cc Policy@ncuih.org.

There is no deadline for submitting the form. The IHS IT Modernization Program Management Office will reach out to organizations that provide the Statement of Interest to learn more about their facilities, services, and staffing that may need to be supported by the new EHR system. There will also be opportunities for subject matter experts from your organizations to provide individual input in their areas of expertise regarding the configurations and workflows that the new system should provide.

If you have questions, please contact Mr. Mitchell Thornbrugh, Chief Information Officer, IHS, by telephone at (240) 620-3117, or by e-mail at mitchell.thornbrugh@ihs.gov.

Background

HIT “is a broad concept that encompasses an array of technologies to store, share, and analyze health information.” This includes, but is not limited to, “the use of computer hardware and software to privately and securely store, retrieve, and share patient health and medical information.”  HIT Modernization for the IHS, Tribal organization, and urban Indian organization (I/T/U) system is long overdue. Although HIT is necessary to provide critical services and benefits to American Indian and Alaska Native patients, the IHS has historically faced challenges in managing clinical patient and administrative data through the Resource Management System (RPMS). Initially developed specifically for the IHS, years of underfunding and a resulting failure to keep pace with technological innovation have left the RPMS impractical by current HIT standards. RPMS has been in use for nearly 40 years and has developed significant issues and deficiencies during this time, especially in recent years as HIT systems have rapidly advanced in sophistication and usefulness. As the Department of Health and Human Services (HHS) Office of the Chief Technology Officer (OCTO) and IHS found in the 2019 Legacy Assessment, systemic challenges with RPMS “across all of the IHS ecosystem currently prevent providers, facilities and the organization from leveraging technology effectively.”

The National Council of Urban Indian Health (NCUIH) is aware that technological tools cut across all UIO operational areas—from clinical and medical technology and telemedicine to accounting, payment system processes, marketing, and outreach. Since its foundation, NCUIH has fostered and participated in national initiatives involving technology as a medium to improve both the sustainability of the UIOs as well as the well-being of the population they serve. Likewise, NCUIH strives to ensure the technology available to collect the most accurate data from its programs.

NCUIH has submitted several written comments to IHS on HIT Modernization. NCUIH also submitted written testimony to the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies regarding the Fiscal year (FY) 2024 funding for UIOs in which NCUIH requested increased funding for EHR Modernization. Specifically, NCUIH requested support for the IHS’ transition to a new EHR system for IHS and UIOs by supporting the President’s budget request of $913 million in FY 2024 appropriations.

NCUIH will continue to closely follow IHS’s progress and policies with HIT Modernization.

NCUIH Joins NIHB and 21 Tribal Nations and Native Partner Organizations in Advocating for Tribal Sovereignty Payments for FY 2024

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On July 12, 2023, the National Council of Urban Indian Health (NCUIH) joined the National Indian Health Board (NIHB) and 21 Tribal Nations and Native partner organizations in sending a letter to House and Senate leadership regarding the Administration’s proposed fiscal year (FY) 2024 Interior, Environment, and Related Agencies Appropriations Bill. In the letter, they state their support for the President’s FY 2024 proposal to reclassify Contract Support Costs (CSC) and Section 105(l) Tribal Lease Payments as mandatory appropriations and to increase program administration staff. They also urge Congress to include the proposal in their FY 2024 Interior bill.

Read the Full Letter

Full Letter Text:

Dear Chair Murray, Chair Granger, Vice Chair Collins, and Ranking Member DeLauro:

On behalf of the undersigned Tribal partner organizations and the 574+ sovereign federally recognized American Indian and Alaska Native (AI/AN) Tribal nations we serve, we write in strong support of the President’s fiscal year 2024 (FY24) proposal to reclassify Contract Support Costs (CSC) and Section 105(l) Tribal Lease Payments as mandatory appropriations and to increase program administration staff. We respectfully urge you to include the proposal in the FY24 Interior, Environment, and Related Agencies Appropriations Bill (herein “Interior bill”).

The Appropriations Committees recognized as far back as 2014 that the mandatory nature of CSC obligations places the appropriators in an “untenable position.” As they wrote in the Explanatory Statement that year, “[t]ypically obligations of this nature are addressed through mandatory spending, but in this case since they fall under discretionary spending, they have the potential to impact all other . . . equally important tribal programs.” Similarly, appropriators stated in the FY 2021 Explanatory Statement for the Interior bill that 105(l) leases, as confirmed in the Maniilaq cases, appear to create an entitlement to compensation . . . that is typically not funded through discretionary appropriations. Tribal participation in ISDEAA programs has increased rapidly over the past decade, and Congress continues to struggle to meet CSC and Section 105(l) funding obligations through discretionary appropriations. In their Explanatory Statements, the Committees called on the agencies and Congress to find a sustainable solution including mandatory reclassification.

The Fiscal Responsibility Act severely restricted discretionary appropriations for FY24 and FY25. The Act also provided new mandatory appropriations to offset cuts to discretionary appropriations for some agencies, but provided no such relief for the federal government’s treaty and trust obligations to Tribal nations. Agencies estimate that Tribal sovereignty payments will increase by almost $392 million (27%) in FY24. Despite this increase, the House and Senate have proposed cuts to the Interior bill by 35 percent and 3 percent, respectively. Deeper cuts elsewhere in the bill to offset Tribal sovereignty payment increases are, thus, inevitable.

Immediately moving these two accounts to mandatory is good risk management for the United States because the amount is already mandatory in nature and there is a mechanism for controlling costs. If the goal or intent is better fiscal management or maintaining annual control over federal spending, then leaving accounts in the discretionary process with standing to sue that would also generate additional administrative or legal costs if any underpayment or delay were to occur is wasteful and misleading, at best, and intentionally reckless, at worst. Since the amount is already mandatory in nature, there is nothing added to the mandatory budget by moving this authority to the mandatory side of the federal ledger. It does not take away any new money or create any new authority. In fact, it would benefit those with a keen fiscal eye because it would properly classify the authority for scoring purposes. Both CSC and Section 105(l) Lease Agreement accounts are necessarily bound by the parameters of the authorizing law and amounts are determined through sophisticated negotiations and calculations between parties with administrative avenues for recourse prior to suit. This means that the amount is determinable each year and can be determined into the future with reliability and accuracy. Further, it means that costs are controlled and defined by the amount of resources provided for HHS and DOI programs, services, functions, or activities in the Interior bill, along with other quantifiable measures like employee pay costs.

There is a better way to manage and score this authority for the American people and that is by providing such sums as may be necessary for these accounts through mandatory spending. Reallocating base funding from discretionary to mandatory funding has a net zero impact on the Federal budget and would not undermine the Fiscal Responsibility Act. Moreover, as mandatory appropriations in the Interior bill, the Appropriations Committees would retain oversight of the programs. The President’s proposal is sound, reasonable, and fair. Our organizations recognize and appreciate your strong leadership and support over the years for Tribal self-determination. For the sake of continuing to improve the federal government’s commitments to meeting its trust and treaty obligations under your leadership, we urge you to include the President’s Tribal sovereignty payments proposal in the FY24 Interior bill.

Full List of Letter Supporters

The full list of supporting Tribal Nations and Native Partner Organizations is as follows:

Tribal Nations:

Native Partner Organizations:

FY 2024 Appropriations Background & Update

On March 17, 2023, IHS published their FY 2024 Congressional Justification with the full details of the President’s Budget, which included $1.6 billion in proposed mandatory funding for Contract Support Costs, Section 105(l) Leases, and the Special Diabetes Program for Indians.

On May 10, the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies held a hearing to review the President’s Budget for the Indian Health Service (IHS) for FY 2024. IHS Director Tso discussed the importance of contract support costs and 105(l) leases as tools for tribal self-governance, and Senators Merkley and Murkowski expressed support for their classification as mandatory funding.

The House Appropriations Subcommittee on Interior, Environment, and Related Agencies recently released its FY 2024 Appropriations bill on July 12, rejecting the Administration’s proposal and Tribal requests to make contract support costs and Tribal leases mandatory spending.

House Republicans Propose Increase for the Indian Health Service in FY24 and Advance Appropriations for FY25

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On July 12, 2023, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies released the FY24 Interior, Environment, and Related Agencies Appropriations Bill.

  • IHS Funding: The bill would authorize $7.078 billion for the Indian Health Service (IHS) for FY24, an increase of $149.4 million of the FY23 enacted level, $2.2 billion below the President’s Budget Request, and $43.3 billion below the Tribal Budget Formulation Workgroup request of $51.42 billion.
  • Advance Appropriations: The bill also provides $5.878 billion in advance appropriations for FY 2025.
  • Urban Indian Health: The Subcommittee has not released the bill report, which would include the proposed funding for urban Indian health.
  • CSC and Tribal Leases: The Subcommittee rejected the administration’s proposal and Tribal requests to make contract support costs and Tribal leases mandatory spending.
  • The Subcommittee will be holding the markup on the bill on July 13, 2023, at 5 PM EST. The hearing will be livestreamed here.

NCUIH Advocacy for Key Priorities: Full Funding, Advance Appropriations

  • On March 24, 2023, the National Council of Urban Indian Health (NCUIH) a letter to Chairman Kay Granger (R-TX-12) and Ranking Member Rosa DeLauro (D-CT-3) of the House Interior Appropriations Committee requesting full funding for IHS and urban Indian health, advance appropriations for IHS, and resources for Native behavioral health in FY 2024.
  • On March 9, 2023, NCUIH CEO Francys Crevier (Algonquin), testified before the House Interior Appropriations Subcommittee as part of American Indian and Alaska Native Public Witness Days advocating for full funding for IHS and to maintain advance appropriations for IHS until mandatory funding is enacted.

Next Steps

The Subcommittee will conduct a markup on the bill on July 13, 2023. Following the Subcommittee markup, the bill will move to full Committee consideration. NCUIH will continue to monitor for the report release and provide additional analysis. The hearing will be livestreamed here.

Key Documents

Supreme Court Upholds Constitutionality of ICWA in 7-2 Ruling, Protecting Native Children and Families

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On June 15, 2023, the Supreme Court reaffirmed and upheld the constitutionality of the Indian Child Welfare Act of 1978 (ICWA). The Justices ruled 7-2 and the majority opinion was authored by Justice Barrett. Justices Gorsuch and Kavanaugh wrote concurring opinions, while Justices Thomas and Alito wrote dissenting opinions. The National Council of Urban Indian Health welcomes the Supreme Court’s decision to reject all challenges to ICWA.

Read the Court’s Opinion here.

Claims raised by Petitioners in this case included that Congress exceeded Article I authority when it enacted ICWA, Congress violated the anticommandeering doctrine when it enacted ICWA, and placement preferences under ICWA are racially discriminatory and violate equal protection. The Supreme Court rejected the first two claims on the merits, while it declined to address the equal protection claim for a lack of standing. Based on the majority’s ruling, ICWA is upheld, and therefore, there are no major changes to ICWA’s implementation.

Justice Barrett Upholds Congress’s Authority to Enact ICWA and Rejects Anticommandeering Claim

Justice Barrett first addressed the Article I claim, explaining that, “in a long line of cases, we have characterized Congress’s power to legislate with respect to the Indian Tribes as ‘plenary and exclusive.’” Authority under Article I provide Congress with a set of enumerated powers, including the power to legislate. Here, the court agreed with the Fifth Circuit’s ruling that Congress did not exceed its authority when it enacted ICWA. It also did not find any merit to the claim that ICWA overrides state authority in child custody proceedings. Barrett explained, “in fact, we have specifically recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children.”

Next, Justice Barrett discussed Petitioner’s anticommandeering claim, which is a doctrine under the Tenth Amendment preventing the federal government from forcing states to pass or not pass certain legislation or enforce federal law. She rejected the anticommandeering argument, as ICWA’s provisions apply both to private individuals and agencies as well as government entities. She also rejected their argument because, “Petitioners assert an anticommandeering challenge to a provision that does not command state agencies to do anything,” as the burden to search for placement rests on the Tribe or other objecting party. She then addressed claims regarding the recordkeeping requirements, finding that Congress allows it as a logical consequence because under dual sovereignty state courts must apply federal law.

Lastly, Justice Barrett did not decide the equal protection claim, because Petitioner’s lacked standing for the Supreme Court to hear and address the argument. To have standing, a party must show they suffered an injury, (the injury is caused by actions of the opposing party), and a favorable decision in court would remedy the harm caused. Parties must also sue the correct party to have standing, and in this case, they sued federal officials when suit against state officials would have been appropriate. She found their claim of racial discrimination as injurious but did not agree it met the requirements of an injury, nor did she find any ruling by the Supreme Court that would properly remedy their harm. She also addressed Texas, and other states, by finding they cannot raise equal protection claims in court on behalf of their citizens.

In their dissents, Justices Thomas and Alito made their own arguments as to why ICWA should be overturned. Justice Thomas focused on Congress intruding on state power to regulate their own child welfare proceedings in state court. Justice Alito argued that ICWA conflicts with state authority to follow the “best interest of the child” standard when conducting child custody proceedings.

Justice Gorsuch Remains a Champion for Native Rights with His Concurrence

Joined in his concurrence by Justices Sotomayor and Jackson, Justice Gorsuch began by going over the history and background that led to the enactment of ICWA. He argued Congress exercised its lawful authority and stayed within the Constitution’s original design. He also placed emphasis on the purpose of ICWA as a response and tool to protect Native children from the longstanding practice of removing them from their families.

“Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it, and it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

Concerns Raised as the Court Leaves Undecided the Issue of Equal Protection

Within his concurrence, Justice Kavanaugh was the only justice to address the equal protection claims raised by Petitioners. He joined the majority opinion but found that the equal protection issue is too important not to be decided. He raises scenarios where children are denied placement, or a prospective parent is denied fostering/adoption based on race. There are questions regarding equal protection principles and Court precedent that can be addressed once a plaintiff brings a claim with standing. Due to this, it is likely there will be more challenges to ICWA specifically targeting the issue of racial discrimination.

A full archive of our coverage on ICWA is available on the NCUIH website.

IHS Director Provides COVID-19 Funding Update: Rescissions Impact $419 Million, $900 Million Remaining for IHS COVID Activities

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On Thursday, June 30, 2023, Indian Health Service (IHS) Director Roselyn Tso released a Dear Tribal Leader and Dear Urban Indian Organization Leader Letter to provide an update on the status of COVID-19 supplemental appropriations provided to the IHS in Fiscal Year (FY) 2020 and FY 2021. In June 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA) (Public Law 118-5) into law, which rescinds certain unobligated COVID-19 supplemental funding balances. Approximately $419 million of COVID-19 funding that was transferred to the IHS from COVID-19 appropriations is impacted by the enacted rescissions. IHS has nearly $900 million in remaining COVID-19 funding. These remaining resources are predominately for the uses of ongoing COVID-19 testing, treatment, and vaccination of patients at IHS-operated hospitals and health clinics, and other mitigation activities; and purchasing and distributing personal protective equipment, along with COVID-19 tests, therapeutics, and vaccines, at no cost to IHS, Tribal, and Urban Indian health programs through the IHS National Supply Service Center.

Read the letter.

Background

In FY 2020 and FY 2021, over $9 billion was appropriated or made available to the IHS from six emergency supplemental bills to combat the novel coronavirus. On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA) (Public Law 118-5) into law. The FRA suspends the public debt limit through January 1, 2025, establishes new discretionary spending limits, and rescinds certain unobligated COVID-19 supplemental funding balances, among other items.

Prior to the enactment of the FRA, IHS continued to obligate COVID-19 funding and the Agency obligated approximately $600 million during the month of May. The FRA protects IHS funds, particularly those that were directly appropriated to the Agency in the American Rescue Plan Act (ARPA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. However, approximately $419 million of COVID-19 funding that was transferred to the IHS from COVID-19 appropriations is impacted by the enacted recissions.

The rescinded funds were intended to support a variety of ongoing COVID-19 mitigation and recovery activities. For example:

  • COVID-19 testing, treatment, and vaccination activities at IHS-operated hospitals and health clinics, and other mitigation activities;
  • The purchase and distribution of PPE, COVID-19 tests, therapeutics, and vaccines at no cost to IHS, Tribal, and urban Indian health programs over the next several years by the IHS NSSC; and
  • The establishment, expansion, and sustainment of a public health workforce.
 Resources:

Department of Veterans Affairs Seeks Nominations for Membership on the Advisory Committee on Tribal and Indian Affairs

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The Department of Veterans Affairs (VA) Office of Tribal Government Relations (OTGR), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Tribal and Indian Affairs (“the Committee”) to represent the following Indian Health Service (IHS) Areas: Bemidji; California; Great Plains; Nashville; Navajo; Tucson. Nominations for membership on the Committee must be received no later than 5 p.m. EST on August 21, 2023, and should be mailed to OTGR at 810 Vermont Ave. NW, Suite 915H (075) or emailed to tribalgovernmentconsultation@va.gov. Individuals interested in participating in this Committee and who are located in the open IHS areas should work with local tribes and tribal organizations to be nominated.

Requirements for Nomination Submission:

Nominations should be typewritten (one nomination per nominator). The nomination package should include:

(1) a letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (i.e., specific attributes which qualify the nominee for service in this capacity), and a statement from the nominee indicating a willingness to serve as a member of the Committee;

(2) the nominee’s contact information, including name, mailing address, telephone number(s), and email address;

(3) the nominee’s curriculum vitae or resume, not to exceed five pages; and

(4) a summary of the nominee’s experience and qualification relative to the professional qualifications criteria outlined by the VA (diversity in professional and personal qualifications; experience in military service and military deployments; current work with Veterans; committee subject matter expertise; and experience working in large and complex organizations).

The nominee must also appear to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.

The individual selected for appointment to the Committee shall be invited to serve a two-year term. All members will receive travel expenses and a per diem allowance in accordance with the Federal Travel Regulations for any travel made in connection with their duties as members of the Committee. For more information, contact Ms. Stephanie Birdwell and/or Mr. Peter Vicaire, Office of Tribal Government Relations, 810 Vermont Ave., NW, Ste 915H (075), Washington, DC 20420. A copy of the Committee charter can be obtained by contacting Peter.Vicaire@va.gov (612-558-7744) or by accessing the Web site managed by OTGR at: https://www.va.gov/TRIBALGOVERNMENT/index.asp.

Background

The Committee was established in accordance with section 7002 of Public Law 116- 315 (H.R.7105 – Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020). In accordance with Public Law 116-315, the Committee provides advice and guidance to the Secretary of Veterans Affairs on all matters relating to Indian Tribes, tribal organizations, Native Hawaiian organizations, and Native American Veterans. The Committee serves in an advisory capacity and makes recommendations to the Secretary on ways the Department can improve the programs and services of the Department to better serve Native American Veterans.

In carrying out its duties, the Committee’s responsibilities include, but are not limited to:

(1) Identifying for the Department’s evolving issues of relevance to Indian Tribes, tribal organizations and Native American Veterans relating to programs and services of the Department;

(2) Proposing clarifications, recommendations and solutions to address issues raised at tribal, regional and national levels, especially regarding any tribal consultation reports;

(3) Providing a forum for Indian Tribes, tribal organizations, urban Indian organizations, Native Hawaiian organizations and the Department to discuss issues and proposals for changes to Department regulations, policies and procedures;

(4) Identifying priorities and provide advice on appropriate strategies for tribal consultation and urban Indian organizations conferring on issues at the tribal, regional, or national levels;

(5) Ensuring that pertinent issues are brought to the attention of Indian tribes, tribal organizations, urban Indian organizations and Native Hawaiian organizations in a timely manner, so that feedback can be obtained;

(6) Encouraging the Secretary to work with other Federal agencies and Congress so that Native American Veterans are not denied the full benefit of their status as both Native Americans and Veterans;

(7) Highlighting contributions of Native American Veterans in the Armed Forces;

(8) Making recommendations on the consultation policy of the Department on tribal matters;

(9) Supporting a process to develop an urban Indian organization confer policy to ensure the Secretary confers, to the maximum extent practicable, with urban Indian organizations; and

(10) With the Secretary’s written approval, conducting other duties as recommended by the Committee.

AI/AN Veterans

There is an urgent need to ensure that all AI/AN Veterans have access to the benefits they earned through their service.  According to a 2020 VA Report, AI/AN Veterans served in the Pre-9/11 period at a higher percentage than other Veteran populations.  Despite a distinguished record of service, VA’s statistics also show that AI/AN Veterans were more likely to be unemployed, were more likely to lack health insurance, and were more likely to have a service-connected disability when compared to Veterans of other races.  In addition, in Fiscal Year 2017, AI/AN Veterans used Veterans Benefits Administration benefits or services at a lower percentage than veterans of other races.

NCUIH and the VA

The National Council of Urban Indian Health (NCUIH) has continued to advocate on behalf of AI/AN veterans living in urban areas and to strengthen its partnership with VA. In October 2021, Sonya Tetnowski (Makah), Army veteran, NCUIH President, and CEO of the Indian Health Center for Santa Clara Valley, was appointed to the VA’s first-ever Advisory Committee on Tribal and Indian Affairs to represent the voice of urban Indians. She currently serves as a member of the Committee and the Chair of the Veterans Health Administration Subcommittee and has highlighted the importance of looking at the whole person and making sure that their needs are being met. She has also brought forth potential subcommittees, including unhoused urban Veterans, Native Healer utilization, and Behavioral Health and Substance Use.

Thanks to NCUIH’s work with VA, UIOs are now eligible to enter the VA Indian Health Service/Tribal Health Program (THP)/UIO Reimbursement Agreements Program, which provides VA reimbursement to IHS, THP, and UIO health facilities for services provided to eligible AI/AN Veterans. NCUIH is also working to address homelessness among urban Native veterans and works closely with the VA, Department of Health and Human Services (HHS), Housing and Urban Development (HUD), and the White House Committee on Native American Affairs on the implementation of the interagency Native American Veteran Homelessness Initiative.  These efforts have emphasized the critical importance of working with UIOs to reach and serve the significant portion of Native veterans living in urban areas.