Urban Indian Organizations Encouraged to Apply for Connecting Kids to Coverage Cooperative Agreement

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On October 17, 2022, the Department of Health and Human Service’s Centers for Medicare & Medicaid Services (CMS) released a Notice of Funding Opportunity (NOFO) for the Connecting Kids to Coverage HEALTHY KIDS American Indian/Alaska Native (AI/AN) 2023 Outreach and Enrollment Cooperative Agreements (Healthy Kids 2023). The grant is a competitive grant open exclusively to Indian Health Service Providers, Indian Tribes, tribal consortiums, tribal organizations, and Urban Indian organizations (UIOs). The NOFO makes available up to an additional $6 million (pending availability of funds), with the estimated maximum award amount being $1 million for up to 7 awardees. The award will be issued April 1, 2023, and the period of performance will last from April 1, 2023-March 31, 2026.  An information session will be held on November 17 at 3:00 PM EST. UIOs are encouraged to apply by the deadline on December 20, 2022, at 3pm EST. For more details on the requirements for the application and the cooperative, see here.

About the Cooperative Agreement

The Healthy Kids 2023 program provides funding to reduce the number of AI/AN children who are eligible for but not enrolled in, Medicaid and the Children’s Health Insurance Program (CHIP), and to improve the retention of eligible children enrolled in these programs. Funding will support strategies aimed at:

  • Increasing the enrollment and retention of eligible AI/AN children, parents, and pregnant individuals in Medicaid and CHIP
  • Emphasizing activities tailored to communities where AI/AN children and families reside, and
  • Enlisting tribal and other community leaders and tribal health and social services programs that serve eligible AI/AN children and families

Suggested outreach strategies for grant recipients:

  • Partnering with tribal programs that work with children and families;
  • Engaging schools and other programs serving young people in outreach, enrollment, and retention activities;
  • Establishing and developing application assistance resources to provide high quality, reliable Medicaid/CHIP enrollment and renewal services in local and tribal communities;
  • Using social media to conduct virtual outreach and enrollment assistance; and
  • Using parent mentors and community health workers to assist families with enrolling in Medicaid and CHIP, retaining coverage and finding resources to address social determinants of health.

All awardees will be required to report the following data:

  • Number of AI/AN children for whom an application for health coverage has been submitted
  • Number of AI/AN children verified to be newly enrolled in Medicaid or CHIP
  • Number of AI/AN children denied new enrollment in Medicaid or CHIP
  • Number of AI/AN children for whom the recipient submitted a renewal form for Medicaid or CHIP coverage
  • Number of AI/AN children verified to be renewed in Medicaid or CHIP
  • Number of children denied renewal coverage in Medicaid or CHIP
  • The outreach and enrollment activities completed during the month

Background

The Healthy Kids Act provides $120 million for activities aimed at reducing the number of children who are eligible for, but not enrolled in, Medicaid and CHIP and improving retention of enrolled children. Of the total amount, 10% is reserved for outreach to AI/AN children. Since 2009, enrollment grants and cooperative agreements have been awarded to over 330 community-based organizations, states, and local governments, including 65 tribal organizations. Community-based organization awardees have included health programs operated by urban Indian organizations.

CMS is seeking to engage with Native communities to help overcome reluctance among some Native families to enroll in Medicaid and CHIP because they can receive care directly from the Indian healthcare system. AI/AN children consistently experience the highest uninsured rate of any racial/ethnic group, with uninsured rates that are more than double that of white children, and Medicaid and CHIP are therefore critical sources of coverage for Native children. In addition, the Indian healthcare system as a whole also benefits when eligible AI/AN patients enroll in Medicaid and CHIP. Indian Health Service, Tribal and Urban Indian Organization (I/T/U) facilities can bill Medicaid and CHIP for services provided to AI/AN Medicaid/CHIP beneficiaries, bringing in additional funds to the I/T/U facility to hire more staff, pay for new equipment, increase services, and renovate buildings.

The Agency for Healthcare Research and Quality Requests Nominations from Populations Underrepresented in Medicine to Serve as Peer Reviewers

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On September 21, 2022, the Agency for Healthcare Research and Quality (AHRQ) published a request for nominations. The public should nominate individuals from populations underrepresented in medicine to serve as members to the AHRQ Initial Review Group (IRG). The IRG is responsible for the scientific peer review of AHRQ grant applications and is comprised of study sections, each with a particular research focus. These AHRQ grants support health services research and training. Nominations are also welcomed from minority-serving institutions, academic health centers, community-based organizations, professional societies, or other state and federal agencies.

Interested individuals may nominate themselves, and organizations—including UIOs—and individuals may nominate one or more qualified persons for study section membership. Nominations should be received on or before December 31, 2022. Nominations should be submitted by email to dsr@ahrq.hhs.gov. All nominations must be submitted electronically, and should include:

  1. A copy of the nominee’s current curriculum vitae and contact information, including mailing address, phone number, and email address.
  2. Preferred study section assignment.

Background

The AHRQ is one of the twelve operating divisions of the United States Department of Health and Human Services (HHS). The purpose of the “AHRQ [is to] develop[] the knowledge, tools, and data needed to improve the healthcare system and help consumers, healthcare professionals, and policymakers make informed health decisions.” Consequently, the AHRQ focuses on investing in healthcare research, creating training materials, and generating measures/data. For the fiscal year of 2022, the AHRQ has an operating budget of $455.4 million.

Scope of the Initial Review Group

The AHRQ IRG conducts scientific and technical review for health services research and training grant applications. AHRQ is specifically encouraging the nomination of individuals from populations underrepresented in medicine to serve on the AHRQ IRG in order to foster a diversity of viewpoints among its members. The IRG is comprised of five subcommittees and nominations for each of the subcommittees should be based on the peer reviewer’s expertise.

  1. Health Care Effectiveness and Outcomes Research: End-stage renal disease; cardiovascular disease; pediatrics; pharmacologist in opioid management; biostatisticians in health services research; health disparities and social determinants of health.
  2. Healthcare Information Technology Research: Biomedical and consumer health informatics; family medicine; health care data analysis; health information technology; health services research in patient-oriented research; electronic health record and data for research; population-based studies in medicine; epidemiology; telehealth/telemedicine; emergency medicine; insurance benefit design; chronic condition care; natural language processing and machine learning; social networking and its determinants of health; health disparities and social determinants of health.
  3. Healthcare Systems and Value Research: Health statistics; health care outcome research; evaluation and survey methods; health system and service research; health care policy research; health economics research; large database analysis; private health insurance/Medicaid and Medicare; learning laboratory development; health disparities and social determinants of health.
  4. Healthcare Systems and Value Research: Health statistics; health care outcome research; evaluation and survey methods; health system and service research; health care policy research; health economics research; large database analysis; private health insurance/Medicaid and Medicare; learning laboratory development; health disparities and social determinants of health.
  5. Healthcare Safety and Quality Improvement Research: Pharmacists with expertise in informatics; infectious diseases specialists; geriatricians; surgeons with a specialty in diagnostic error; health disparities and social determinants of health.

Native American Health Coalition Sends Letters to Congress Requesting Advance Appropriations for the Indian Health Service

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On October 20, 2022, the American Indian/Alaska Native (AI/AN) Health Partners sent letters to House and Senate Interior, Environment, and Related Agencies Subcommittee leadership regarding the fiscal year (FY) 2023 appropriations. In those letters, AI/AN Health Partners urged that the Senate requested advance appropriations amount of $5.577 billion be included in the final FY 2023 IHS appropriation package, among other Indian health provisions.

Letter Highlights

The AI/AN Health Partners stated that since IHS has been chronically underfunded, it often does not have sufficient resources to accomplish its duty of raising the physical, mental, social, and spiritual health of all Native people to the highest standard.

They continue by explaining how the need for advance appropriations was highlighted in a Government Accountability Office (GAO) report from September 2018. In that report, IHS officials and Tribal representatives explained how budget uncertainty resulting from continuing resolutions (CRs) and government shutdowns has a variety of negative effects on the Indian Health system. This includes the lack of access to vital health resources, challenges recruiting and retaining employees (resulting in staffing shortages), and the inability to fund planned pay increases (such as cost-of-living adjustments).

The coalition also noted that the Senate bill provided for advance appropriations, whereas the House bill did not. The letters conclude by requesting the full inclusion of the Senate-provided funding for advance appropriations in the final FY 2023 appropriations package.

Full Letter Text

The full text of the AI/AN Health Partners letter to Senate appropriators can be found below:

Dear Chairman Merkley and Ranking Member Murkowski:

The AI/AN Health Partners is a coalition of health organizations dedicated to improving health care for American Indians and Alaska Natives (AI/ANs).  AI/ANs face substantial health disparities, and higher mortality and morbidity rates than the general population. The Indian Health Service (IHS) is critical to how they access health care.  However, the IHS must have sufficient resources to meet its mission to raise the physical, mental, social, and spiritual health of American Indians and Alaska Natives to the highest level.

A long-standing priority for our organizations has been to increase the professional workforces in facilities run by the IHS and tribal organizations.  As you work to finalize fiscal year 2023 appropriations for the IHS, we urge you to include several significant budget increases that we believe will dramatically improve the delivery of health care to AI/ANs.

The Health Professions account provides loan repayment, the Service’s best recruitment tool, for providers who work in Indian Country.  It also funds scholarships for Native American health care students.  Currently, the IHS lacks sufficient funding to meet its needs.  The Service has over 1,398 vacancies for health care professionals. In fiscal year 2021, a total of 1,658 health care professionals received loan repayment. However, the IHS had 341 requests for loan repayment that could not be fulfilled.  At the same time, the Service had over 500 new scholarship applicants but was only able to fund 255 new awards. For fiscal year 2023, we urge you to support the House Interior Appropriations bill amount of $93,568,000 for the Indian Health Professions account to help the IHS to close its vacancy gap.

Medical and diagnostic equipment

Health care professionals need modern equipment to make accurate clinical diagnoses and prescribe effective medical treatments.  The IHS and tribal health programs manage approximately 90,000 devices consisting of laboratory, medical imaging, patient monitoring, pharmacy, and other biomedical, diagnostic, and patient equipment.  However, many of these facilities are using outdated equipment like analog mammography machines.  In some cases, they are using equipment that is no longer manufactured.  Today’s medical devices/systems have an average life expectancy of approximately six to eight years.  The IHS calculates that to replace the equipment at the end of its six to eight-year life would require approximately $100 million per year.  We urge you to support the fiscal year 2023 House-approved amount of $118,511,000 for health care facilities equipment.

Staff Quarters

Decent staff housing is essential for the IHS and tribes to be able to recruit health care personnel.  Many of the 2,700 staff quarters across the IHS health delivery system are more than 40 years old and in need of major renovation or total replacement.  Additionally, in a number of locations the amount of housing units is insufficient.  Decent staff quarters, especially in remote areas, is essential for attracting and keeping health care providers in Indian Country.    In a March 23, 2021, hearing before the House Natural Resources Subcommittee for Indigenous Peoples of the United States, the Honorable Rodney Cawston, Chairman, Colville Business Council Confederated Tribes of the Colville Reservation Nespelem, WA spoke about how the lack of housing affected tribes’ ability to attract health care workers  “Included in the housing needs on a reservation to recruit working professionals, especially medical professionals to rural communities like Washington state it’s always difficult because we don’t always have the available housing for working professionals.”

For fiscal year 2023, the House Appropriations Committee set aside $40,000,000 in the Health Care Facilities line item specifically for staff quarters at existing facilities.   We strongly urge you to support this directive.   The Senate Interior Subcommittee included report language seeking a report on the situation, but that will delay needed funding for at least two years.

Electronic Health Record

Being able to have a modern electronic health record (EHR) system, is essential to enable the IHS and tribal health professionals to provide accurate and vital health care for patients.  The IHS uses its EHR for all aspects of patient care, including maintaining patient records, prescriptions, care referrals, and billing insurance providers that reimburse the Service for over $1 billion annually.  A new EHR system will allow the IHS and tribes to communicate with other entities that AI/AN patients seek care from like the Veterans Affairs, Department of Defense, and tribal and urban Indian health programs.  We urge you to support a fiscal year 2023 appropriation of $284,500,000 for an electronic health record system.   This is the same amount that the House approved, and the Administration requested.

Advanced appropriations

Our organizations were pleased that for fiscal year 2023, the Senate Interior Subcommittee provided $5,577,077,000 for advanced appropriations for the Indian Health Service.  The need for the advanced appropriations was addressed in a September 2018 GAO report, “INDIAN HEALTH SERVICE Considerations Related to Providing Advance Appropriation Authority.”  IHS officials, tribal representatives, and other stakeholders told the GAO how budget uncertainty resulting from continuing resolutions (CRs) and government shutdowns can have a variety of effects on the provision of IHS funded health care services for AI/ANs.    Regarding recruitment and retention of health care providers, GAO reported that IHS officials and tribal representatives said that funding uncertainties can exacerbate challenges to staffing health care facilities:

“…when recruiting health care providers, IHS officials said CRs and potential government shutdowns create doubt about the stability of employment at IHS amongst potential candidates, which may result in reduced numbers of candidates or withdrawals from candidates during the pre-employment process.  IHS officials said that many providers in rural and remote locations are the sole source of income for their families, and the potential for delays in pay resulting from a government shutdown can serve as a disincentive for employees considering public service in critical shortage areas that do not offer adequate spo

usal employment opportunities. Tribal representatives said CRs create challenges for tribes in funding planned pay increases— such as cost-of-living adjustments— for health care staff at their facilities, and they may, as a result, defer increases.”

The House Appropriations Committee did not include funding for advanced appropriations in its fiscal year 2023 bill for the Indian Health Service.  We urge you to maintain the Senate advanced appropriations amount of $5,577,077,000  in the final Fiscal year 2023 IHS appropriation.

Thank you for considering our requests.  We look forward to working with you to improve health care for American Indians and Alaska Natives.

About the AI/AN Health Partners

The AI/AN Health Partners is a coalition of health organizations dedicated to improving health care for AI/ANs. Members of this coalition, all of whom signed the letters to the House and Senate appropriators, include:

  • The Academy of Nutrition and Dietetics
  • The American Academy of Dermatology Association
  • The American Academy of Pediatrics
  • The American Association of Colleges of Nursing
  • The American Association of Colleges of Osteopathic Medicine
  • The American College of Obstetricians and Gynecologists
  • The American Dental Association
  • The American Dental Education Association
  • The American Psychological Association
  • The Association of American Medical Colleges
  • The Commissioned Officers Association of the USPHS
  • The National Kidney Foundation

Background and NCUIH Advocacy

AI/ANs face substantial health disparities compared to the general population. In the Fiscal Year (FY) 2023 Performance Budget Submission to Congress, the Indian Health Service (IHS) highlights these disparities, noting that the “Indian health system is chronically underfunded compared to other healthcare systems in the United States”.

The National Council of Urban Indian Health’s (NCUIH) analysis revealed that the US spends $11,172 in healthcare costs per person. In contrast, Tribal and IHS facilities receive $4,078 per IHS eligible patient, while Urban Indian Organizations (UIOs), which support the over 70% of AI/ANs living off-reservation, receive just $672 per AI/AN patient from the IHS budget. This low per-patient spending makes it difficult for UIOs to address growing patient needs.

NCUIH has been a staunch advocate for adequate funding of IHS, especially advance appropriations. NCUIH’s 2022 Policy Priorities includes securing advance appropriations as a top policy priority to improve AI/AN health and improve funding certainty for IHS. Advance appropriations has been a priority for Indian Country for years and has broad support from Native health advocates. Over the past 10 years, there have been six resolutions in support of advance appropriations from NCUIH, the United South and Eastern Tribes (USET), the Inter-Tribal Council of the Five Civilized Tribes (ITC), the National Indian Health Board (NIHB), the National Congress of American Indians (NCAI), and the American Bar Association.

On January 17, 2019, NCUIH sent a letter to the Vice Chairman of the Senate Committee on Indian Affairs (SCIA), Tom Udall, in support of IHS advance appropriations legislation. On March 9, 2022, NCUIH joined NIHB and over 70 Tribal nations and national Indian organizations in sending a series of joint letters to Congress requesting advance appropriations for IHS in the FY 2022 omnibus. NCUIH also sent letters to Speaker Pelosi, House Minority Leader McCarthy, Senate Majority Leader Schumer, Senate Minority Leader McConnell, the Senate Interior Appropriations Committee, and the Senate Committee on Indian Affairs in support advance appropriations for IHS. Most recently, NCUIH also passed a resolution on August 22, 2022 in support of advance appropriations.

NCUIH Additional Resources on Advance Appropriations

NCUIH has a variety of additional resources including:

Next Steps

NCUIH continues to advocate for the inclusion of advance appropriations for IHS in the final appropriations package. NCUIH will also provide updates on the status of advance appropriations in Congress during final negotiations.

Congressional Support for Advance Appropriations for the Indian Health Service

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The following is a list of Members of Congress who have ever expressed support for Advance Appropriations for IHS whether through a letter, cosponsorship, testimony, statement.[1]

Action Alert: Save Native Lives – Contact Congress Today to Take Action

Title Last Name First Name State District Party
Sen. Murkowski Lisa AK R
Rep. Peltola Mary AK At-large D
Rep. Sewell Terri AL 7 D
Rep. O’Halleran Tom AZ 1 D
Rep. Kirkpatrick Ann AZ 2 D
Rep. Grijalva Raul AZ 3 D
Rep. Schweikert David AZ 6 R
Rep. Gallego Ruben AZ 7 D
Rep. Stanton Greg AZ 9 D
Sen. Feinstein Dianne CA D
Sen. Padilla Alex CA D
Rep. LaMalfa Doug CA 1 R
Rep. Huffman Jared CA 2 D
Rep. Garamendi John CA 3 D
Rep. Roybal-Allard Lucille CA 4 D
Rep. Thompson Mike CA 5 D
Rep. Matsui Doris Matsui CA 6 D
Rep. Obernolte Jay CA 8 R
Rep. McNerney Jerry CA 9 D
Rep. Khanna Ro CA 17 D
Rep. Lofgren Zoe CA 19 D
Rep. Lieu Ted CA 22 D
Rep. Carbajal Salud CA 24 D
Rep. Chu Judy CA 27 D
Rep. Cardenas Tony CA 29 D
Rep./Dr. Ruiz Raul CA 36 D
Rep. Bass Karen CA 37 D
Rep. Calvert Ken CA 42 R
Rep. Barragan Nanette CA 44 D
Rep. Levin Mike CA 49 D
Rep. Vargas Juan CA 51 D
Rep. Jacobs Sara CA 53 D
Rep. DeGette Diana CO 1 D
Rep. Neguse Joe CO 2 D
Rep. Courtney Joe CT 2 D
Del. Holmes Norton Eleanor DC At-Large D
Rep. Soto Darren FL 9 D
Rep. Wasserman Shultz Debbie FL 23 D
Rep. Williams Nikema GA 5 D
Sen. Schatz Brian HI D
Rep. Kahele Kaiali’i HI 2 D
Rep. Axne Cindy IA 3 D
Rep. Simpson Mike ID 2 R
Rep. Garcia Jesus “Chuy” IL 4 D
Rep. Schakowsky Jan IL 9 D
Rep. LaTurner Jake KS 2 R
Rep. Davids Sharice KS 3 D
Sen. Warren Elizabeth MA D
Rep. Kennedy III Joe MA 4 D
Rep. Keating Bill MA 9 D
Sen. Van Hollen Chris MD D
Sen. Peters Gary MI D
Sen. Stabenow Debbie MI D
Rep. Kildee Dan T. MI 4 D
Rep. Moolenaar John MI 4 R
Rep. Stevens Haley MI 11 D
Rep. Dingell Debbie MI 12 D
Rep. Tlaib Rashida MI 13 D
Rep. Lawrence Brenda MI 14 D
Sen. Klobuchar Amy MN D
Sen. Smith Tina MN D
Rep. Craig Angie MN 2 D
Rep. McCollum Betty MN 4 D
Sen. Tester Jon MT D
Rep. Armstrong Kelly ND At-Large R
Rep. Bacon Don NE 2 R
Rep. Gottheimer Josh NJ 5 D
Rep. Pallone Jr. Frank NJ 6 D
Rep. Watson Coleman Bonnie NJ 12 D
Sen. Heinrich Martin NM D
Sen. Lujan Ben NM D
Rep. Stansbury Melanie Ann NM 1 D
Rep. Leger Fernandez Teresa NM 3 D
Sen. Cortez Masto Catherine NV D
Sen. Rosen Jacky NV D
Rep. Titus Dina NV 1 D
Rep. Horsford Steven NV 4 D
Rep. Stefanik Elise NY 21 R
Rep. Brown Shontel OH 11 D
Rep. Joyce David OH 14 R
Rep. Mullin Markwayne OK 2 R
Rep. Cole Tom OK 4 R
Rep. Bice Stephanie OK 5 R
Sen. Merkley Jeff OR D
Sen. Wyden Ron OR D
Rep. Blumenauer Earl OR 3 D
Rep. DeFazio Peter OR 4 D
Rep. Fitzpatrick Brian PA 1 R
Rep. Cartwright Matt PA 8 D
Rep. Johnson Dusty SD At-Large R
Rep. Cohen Steve TN 9 D
Rep. Garcia Sylvia TX 29 D
Rep. McEachin A. Donald VA 4 D
Sen. Sanders Bernard VT D
Sen. Cantwell Maria WA D
Rep. Larsen Rick WA 2 D
Rep. McMorris Rodgers Cathy WA 5 R
Rep. Kilmer Derek WA 6 D
Rep. Jayapal Pramila WA 7 D
Rep. Schrier Kim WA 8 D
Rep. Smith Adam WA 9 D
Rep. Strickland Marilyn WA 10 D
Sen. Baldwin Tammy WI D
Rep. Kind Ron WI 3 D
Rep. Moore Gwen WI 4 D
Rep. Gallagher Mike WI 8 R
Rep. Cheney Liz WY At-Large R

 

[1] NCUIH Research as of November 7, 2022. Available here: https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:ff22249f-2dfa-3ef5-8184-99a628541d3b

NCUIH Presents at DePaul Law School’s Diversity Week to Discuss Challenges to the Indian Child Welfare Act

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On November 2, 2022, the National Council of Urban Indian Health’s (NCUIH) Federal Relations Manager, Alexandra Payan, presented at Chicago’s DePaul Law School Student Bar Association’s Diversity Week to discuss the Indian Child Welfare Act (ICWA) and the upcoming Supreme Court case, Haaland v. Brackeen. Alexandra presented alongside Ryann Unabia (Turtle Mountain Band of Chippewa), an Indian Child Welfare Specialist at the Illinois Department of Children and Family Services. In her presentation, Alexandra highlighted the critical importance of ICWA in preserving Tribal Sovereignty, Tribal Identity, and improving the overall health of American Indian/Alaska Native (AI/AN) children. She also provided an analysis of Haaland v. Brackeen and the possible implications if the Supreme Court were to hold ICWA unconstitutional. Oral arguments at the Supreme Court are scheduled for November 9, 2022. NCUIH has and will continue to voice support for ICWA.

Background and Advocacy

ICWA and its Importance to AI/ANs

ICWA represents the gold standard in child welfare proceedings, strengthening and preserving AI/AN family structure and culture. When it was established in 1978, studies showed that between 25% and 35% of all Native children were removed from their homes by state child welfare and private adoption agencies. Of those, 85% were placed with non-Native families, even when fit and willing relatives were available. ICWA ensures that the previously forced removal of AI/AN children from their homes and their placement into white families will not be repeated.

Today, Native children continue to be overrepresented in state foster care systems at a rate 2.7 times higher than their non-Native peers. This means that while AI/AN children represent 0.9% of all children in the United States, they are 2.1% of all children who are placed in foster care. Because more than 70% of AI/AN people live in urban settings, this overrepresentation undoubtedly includes AI/AN children living in urban areas. According to the Indian Health Service (IHS), Native youth living off-reservation often face a higher risk of health problems, including mental health and substance abuse, suicide, gang activity, teen pregnancy, abuse, and neglect. Additionally, IHS found that urban Indian populations experience the same health problems as the general Indian population, but these problems are exacerbated by a lack of access to family and traditional cultural environments. Challenges to ICWA threaten to place urban Native youth at even greater risk if they enter foster or adoption systems that do not offer protections to keep them from being further removed from their communities and culture.

NCUIH previously provided an in-depth analysis on the impact of ICWA. NCUIH is hosting a Supreme Court Listening Event for the oral argument on November 9, 2022 to support the National Indigenous Women’s Resource Center’s (NIWRC) event gathering in front of the Supreme Court in support of ICWA.

Legal Proceedings and Opposition to ICWA

In Brackeen, the states of Texas, Indiana, Louisiana, and individual plaintiffs sued the federal government, arguing that ICWA and its implanting regulations are unconstitutional because they violate the equal protection and substantive due processes provisions of the Fifth Amendment and violate the anticommandeering doctrine of the Tenth Amendment. The plaintiffs also argued that ICWA and the implementing regulations violate the nondelegation doctrine and the Administrative Procedures Act (APA).

The initial 2018 ruling by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas, held that ICWA (including its implementing regulations) is unconstitutional, and the regulations violate the APA. Specifically, Judge O’Connor held that ICWA violates the Constitution’s guarantee of equal protection because it applies to all children eligible for membership in a Tribe, not just enrolled tribal members, and therefore operates as a race-based statute.  Judge O’Connor further held that ICWA violates the Tenth Amendment’s prohibition on the federal government issuing direct orders to states and unconstitutionally delegates Congress’s power by giving tribes the authority to change adoption placement preferences and make states abide by them.

The Fifth Circuit Court of Appeals overturned the District Court’s decision in most respects. The Court found that Congress had the authority to enact the law. The majority opinion also held that ICWA’s application to all children eligible for tribal citizenship is not a race-based classification and therefore ICWA does not violate equal protection. This reaffirms that the status of “Indian child” is not an unconstitutional racial classification. However, the court was equally divided as to whether references to “other Indian families” and “Indian foster home” are an unconstitutional racial classification. Because the Court was equally divided on this holding the District Court’s ruling was upheld, but it was without precedential authority. Further, the Court affirmed the District Court’s conclusion that several of the “active efforts” required under ICWA violated the Tenth Amendment, which prohibits the federal government from imposing duties on state officials. The Court was again equally divided on whether ICWA’s placement preferences violate the Tenth Amendment. This narrow but lengthy decision, which was over 300 pages and decided by a divided 16-judge court, creates a confusing precedent for those trying to navigate the law and makes the case ripe for review by the Supreme Court.  The Fifth Circuit also addressed APA challenges to the Bureau of Indian Affairs rules implementing ICWA.

On February 28, 2022 the U.S. Supreme Court agreed to review the Fifth Circuit’s decision in Brackeen v. Haaland. The challengers and their amici argue that American Indian/Alaska Native is a racial classification rather than a political classification, making ICWA constitutionally suspect under the Equal Protection Clause. The challengers and their amici further argue that ICWA violates several constitutional provisions including anti-commandeering and nondelegation.

On May 26, 2022, the Court received amicus briefs from supporters of the ICWA challengers highlighting their arguments. On August 19, 2022, the next round of amicus briefs in support of ICWA and Tribal intervenors were due, which was submitted by NIWRC and signed on by NCUIH, and argues that ICWA constitutes a critical safeguard that protects Indian women and children from abuse and declaring Indian to be a racial classification subject to strict scrutiny would impede Congress’ trust duty and responsibility to address violence against Native women and children. Oral argument is scheduled for November 9, 2022 and the Supreme Court will release its decision by June 30, 2023.

ICWA as a Vehicle to Challenge Federal Indian Law

It is also important to recognize that this case, as well as other on-going challenges to ICWA are part of a broader effort to attack the foundations of Federal Indian Law. The recognition that the AI/AN classification is political classification rather than racial is a critical underpinning of not just ICWA, but many laws that relate to housing, healthcare, education, and employment. This political classification goes back to the 19th Century and has been upheld by Courts at multiple levels. Acknowledging the importance of tribal citizenship, AI/ANs are classified by this citizenship, not by their race. However, publications from the organizations supporting this lawsuit and others, including the Cato Institute and the Goldwater Institute, make clear that they view Native identity as being a matter of race, not political identity and citizenship. If overturned, the repeal of ICWA would not only upend a law in place for more than 40 years but undercut the heart of tribal sovereignty and the federal government’s trust responsibility to Native communities. A successful attack on ICWA would have far-reaching implications on all areas of Federal Indian Law and policy.

Senate Amendment Includes Major Report on Indian Boarding Schools

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On October 11, 2022, the Senate filed an amendment to the National Defense Authorization Act (NDAA) for Fiscal Year 2023 (H.R. 7900). This amendment includes a major report from the Department of Defense (DoD) on Indian boarding schools and institutions under the control of the DoD.

Amendment Highlights

Section 5302 of the Senate-filed amendment includes a report from the DoD on “former Indian boarding schools and institutions under their jurisdiction or control.” In general, the Secretary of Defense would be required to submit a report to the appropriations committees of Congress providing the following information:

  • An account of all schools or institutions that were located on land that was under the control of the DoD (currently or at the time of operation of a school or institution).
  • Provide a description of the role and actions the Department took in facilitating these schools, including complete accountings, engagements, and actions, the identification of marked and unmarked burial grounds, and the repatriation of the remains of Native students who died while attending a school.

This amendment would also require the Secretary of Defense to consult and engage with Indian Tribes and Native Hawaiian organizations so that a comprehensive report is created in less than one year. Finally, the Secretary would ultimately brief the Congressional appropriations committees on the report’s findings.

Background

The National Council of Urban Indian Health (NCUIH) has continuously advocated for substantial efforts to address the historical trauma and public health impact that boarding schools had on urban American Indian and Alaskan Natives (AI/ANs) and to better understand how this intergenerational trauma has impacted urban AI/AN communities.

In December of 2021, NCUIH submitted comments to the Department of the Interior (DOI) regarding the agency’s Federal Boarding School Initiative, led by Secretary Deb Haaland, the first Native American cabinet holder of DOI. Through that initiative, the DOI would begin to identify boarding school sites, locations of known and possible student burial sites located at or near school facilities, and identify the children and their tribal affiliations to bring them home to their families. NCUIH reiterated its ongoing support for the Administration’s efforts to address the impact of boarding school programs and emphasized the importance of studying not only the impact of boarding school programs for survivors but also the lasting impact of the intergenerational trauma caused by boarding schools within urban AI/AN communities.

In June of 2021, Francys Crevier (Algonquin), NCUIH CEO, issued a statement in response to the discovery of unmarked graves at Kamloops Indian Residential School in Canada. She noted that “Indian Country’s social determinants of health demonstrate the connection to the historical trauma inflicted by these governments that caused tremendous health consequences for our people – most recently with the COVID-19 pandemic taking the lives of many of our relatives.”  NCUIH applauded Secretary Haaland for the administration’s efforts, noting the necessity of the United States and Canada to take responsibility for these horrific actions so the healing process may begin.

Finally, on June 15, 2022, the House Committee on Natural Resources held a markup to consider a series of bills, including the Truth and Healing Commission on Indian Boarding School Policies in the United States Act (H.R. 5444/S.2907). NCUIH worked closely with Senator Elizabeth Warren (D-MA) on this landmark legislation to begin the healing process and ensure the inclusion of UIOs in the creation of a Truth and Healing Commission on Indian Boarding School Policies.  In May of 2022, NCUIH also submitted written testimony to the House Subcommittee for Indigenous Peoples of the United States in support of H.R. 5444. During the hearing, several Members of Congress, such as Senator Cortez Masto (D-NV) and Representative McCollum (D-MN-04), expressed concerns and grievances about the horrific occurrences within boarding schools. Members from both parties agreed there was a need for an established commission, and four amendments were introduced on subpoena power (the compensation of commission members, the wording around funds, and the possibility for reparations). However, the only amendment to be accepted was the amendment editing, “such sums as may be necessary”. The bill passed the committee and now awaits a full hearing on the House floor.

Next Steps

NCUIH continues to advocate for legislation that addresses and rectifies the centuries of historical oppression against Native people and begins the healing process. NCUIH will continue to monitor this amendment and provide any updates on its movement.

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.

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.

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:

Action Alert: Save Native Lives – Contact Congress Today to Take Action

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Contact Congress │ Social Media Campaign │ Advance Appropriations One-Pager │ Find Out if Your Member of Congress Supports Advance Appropriations


Dear Indian Health Advocates,

The National Council of Urban Indian Health is advocating tirelessly to Congress to ensure advance appropriations for the Indian Health Service (IHS).

We need your help again contacting Congress to support securing advance appropriations and mandatory funding for IHS. The Indian health system, including IHS, Tribal facilities, and urban Indian organizations (UIOs), is the only major federal health care provider funded through annual appropriations.

If IHS were to receive advance appropriations, it would ensure continuity of care for American Indians and Alaska Natives and complement President Biden’s budget request to honor commitments to Tribal nations and communities. In fact, Native communities have experienced deaths due to government shutdowns in the past and according to a recent study, Native Americans experienced the biggest drop in life expectancy— decreasing by 6.6 years between 2019-2021. The lives of Native people should not be subject to politics. We need this to protect Native people and preserve access to health care.

We urge you to contact your Member of Congress and request that they support including advance appropriations for IHS in the Fiscal Year (FY) 2023 final spending package. You can use the text below as a template to call and/or email your Members of Congress.

Thank you for your leadership. Your outreach on this is invaluable to providing greater access to health care for all American Indians and Alaska Natives.

Sincerely,

The National Council of Urban Indian Health

STEPS TO CONTACT CONGRESS

  • Step 1:Copy the email below.
  • Step 2: Find your Representative here and your Senator here.
  • Step 3:Paste the email into the form on your Member of Congress’ contact page and send. Please contact Meredith Raimondi (policy@ncuih.org) with questions.
Email to Your Representative and Senators

Dear [Member of Congress],

As an Indian health advocate, I respectfully request you ensure the inclusion of advance appropriations for the Indian Health Service (IHS) in the upcoming Fiscal Year (FY) 2023 final spending package until mandatory funding for the agency can be achieved.

The Indian health system, including IHS, Tribal facilities, and urban Indian organizations (UIOs), is the only major federal health care provider funded through annual appropriations. If IHS were to receive advance appropriations, it would not be subject to government shutdowns and continuing resolutions as its funding for the next year would already be in place. We need this to protect Native lives!

I respectfully ask that you honor the federal trust obligation to American Indians and Alaska Natives by ensuring advance appropriations for IHS can finally be made a reality this year.

Thank you for your leadership and your commitment to upholding the United States trust responsibility.

Sincerely,

[contact information]

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