NCUIH Advocacy Results in New Guidance from HHS on 100% FMAP for Urban Indian Organizations

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On December 27, 2022, the Center for Medicaid Services (CMS) released a State Medicaid Director Letter (SMDL) #22-006: “Additional Guidance on Section 9815 of the American Rescue Plan Act of 2021.” The SMDL provides additional guidance to states on Section 9815 of the America Rescue Plan Act of 2021 (ARPA), which amended Section 1905(b) of the Social Security Act to set the federal medical assistance percentage (FMAP) for Medicaid services provided at Urban Indian Organizations (UIOs) at 100% for eight fiscal quarters, starting on April 1, 2021. The National Council of Urban Indian Health (NCUIH) and UIO advocacy efforts helped secure the inclusion of Section 9815 in the ARPA, and NCUIH has called on the Administration to provide guidance to states to ensure this provision is implemented in the way intended by Congress. ARPA Section 9815’s 100% FMAP UIO extension ends on March 31, 2023, and UIOs have generally have not seen the benefit of the provision that was intended to increase resources for Indian healthcare providers.

Overview of Additional Guidance provided in SMD #22-006:

The guidance reiterates prior guidance issued by CMS, and invites individual State Medicaid Directors to reach out to CMS for additional information or guidance on implementing ARPA Section 9815. Below is a brief overview of the additional guidance relating to UIOs provided by SMD #22-006. The SMD:

  • Reiterates that CMS interprets ARPA’s 100% FMAP UIO extension to apply to Medicaid services received by all Medicaid beneficiaries through UIOs with a grant or contract with the Indian Health Service (IHS) under title V of the Indian Health Care Improvement Act
  • Provides that 100% FMAP is available for state expenditures on Medicaid services provided by a non-UIO provider but furnished under a qualifying care coordination agreement with UIOs for the ARPA period.
  • Reiterates that states have the discretion to set and adjust Medicaid provider payment rates if the state payment rates are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the state plan at least to the extent that such care and services are available to the general population in the geographic area. (42 U.S.C. 1396a(a)(30)(A))
  • Reiterates that states must comply with the provisions of section 1902(bb) of the Act when setting Medicaid payment rates for Federally Qualified Health Center (FQHC) services that are furnished by FQHCs.
  • Provides that CMS is available to provide technical assistance to states that believe adjusting their reimbursement rates to UIOs, Centers, or Systems is appropriate.
  • Encourages states needing technical assistance to contact their CMS state lead, and UIOs, Centers, and Systems needing technical assistance to contact their CMS Native American Contact.

ARPA Section 9815’s UIO 100% FMAP extension expires on March 31, which is less than two months away. NCUIH is continuing policy work to ensure that UIOs can benefit from this Section as was intended by Congress. NCUIH also is continuing efforts to secure permanent 100% FMAP for UIOs.

NCUIH Bill Helps Urban Indian Organization Purchase New Building for Women’s Health and Pediatric Services

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In October 2022, the Oklahoma City Indian Clinic (OKCIC), one of the 41 Urban Indian Organizations (UIOs) serving the more than 70% of American Indian and Alaska Native (AI/AN) individuals living in urban areas, announced their purchase of a new clinic building in Oklahoma City, Oklahoma. “This building is larger than our other locations” says Oklahoma City Indian Clinic’s Chief Operating Officer Lysa Ross. “The extra space will give us more opportunities to expand services and continue providing excellent health care to American Indians.” In 2021, The National Council of Urban Indian Health (NCUIH) worked tirelessly to include the Padilla-Moran-Lankford Urban Indian Health amendment to the bipartisan infrastructure package which allows UIOs to use existing Indian Health Service (IHS) funding for facilities improvement and renovations.

The clinic plans to renovate the nearly 65,000 square foot structure, with six-stories, to hold primarily women’s health and pediatric services. Their pediatric department offers several specialty clinics, including an asthma and a foster care clinic. Well-child visits, same-day visits, physical examinations, immunizations, and vision and hearing checks will also be procedures provided in the new building. The women’s health department at Oklahoma City Indian Clinic offers birth control, preventative health and wellness services and prenatal care, including delivery options.

The new building is still undergoing renovations, but OKCIC plans to see patients at this new location in 2023.

Background

NCUIH has worked on a bipartisan basis for legislation that that would expand the use of existing IHS resources under Section 509 of the Indian Health Care Improvement Act (IHCIA) (25 U.S.C. § 1659) to increase the funding authority for renovating, constructing, and expanding UIOs. In August 2021, NCUIH successfully advocated for the Padilla-Moran-Lankford Urban Indian Health Amendment to be included in the bipartisan infrastructure package, which allows UIOs to use existing IHS funding for infrastructure projects.

Prior to the passage of the bipartisan infrastructure package with this amendment, IHS did not have funding allocated specifically for use toward UIO facilities, maintenance, sanitation or medical equipment, nor could UIOs use their contract funds to make such purchases or payments. At the height of the pandemic, while the whole IHS system transitioned to telehealth, negative pressurizing rooms and other facility renovations that were needed to safely continue to see patients, restrictions within the relevant statutory text would not allow UIOs to spend their funds to make similar such transition. Section 509 of the Indian Health Care Improvement Act (IHCIA), where the technical fix this amendment provided exists, only allowed IHS to provide UIOs with funding for minor renovations and to assist UIOs in meeting or maintaining compliance with The Joint Commission (TJC) accreditation standards.

Prior to the passage of the Padilla-Moran-Lankford amendment, in May, Congressmen Ruben Gallego (D-AZ) and Don Bacon (R-NE) introduced the Urban Indian health Facilities Provider Act (H.R. 3496) in the House of Representative, expanding the use of existing IHS resources under Section 509 to increase the funding authority for renovating, constructing, and expanding UIOs. An identical bill was introduced at the same time in the Senate (S. 1797) by Senators Alex Padilla (D-CA) and James Lankford (R-OK), with initial co-sponsors including Senators Moran (R-KS), Feinstein (D-CA) and Smith (D-MN) who is on the Senate Committee on Indian Affairs.

NCUIH also testified in support of the Urban Indian health Facilities Provider Act before both the House Natural Resources Subcommittee for Indigenous Peoples of the United States (SCIP) and the Senate Committee on Indian Affairs (SCIA) in May of 2021. Sonya Tetnowski (Makah Tribe), Chief Executive Officer of the Indian Health Center of Santa Clara Valley and the NCUIH President-Elect at the time of the hearing, testified before SCIP, and Robyn Sunday-Allen (Cherokee), Chief Executive Officer of the Oklahoma City Indian Clinic and NCUIH Vice President, testified before SCIA.

Fall 2022 Semester Law and Policy Fellows Depart and Reflect on Time with NCUIH

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With the new semester of the school year well underway, the National Council of Urban Indian Health (NCUIH) bids farewell to the Law and Policy Fellows that worked with us throughout the semester. Both students were key collaborators within the work that NCUIH accomplished while they were with us. They attended hundreds of calls, wrote NCUIH communication materials such as blogs and newsletter posts, and were directly responsible for several discrete research projects. NCUIH wishes Adrianne and Palmer all the best as they continue their education and professional growth.

Headshot of Palmer Scott

 “NCUIH treated me like one of their own and I couldn’t imagine the cost of having missed an opportunity like this.” – Palmer Scott (Muscogee (Creek) Nation)

 Palmer Scott (Muscogee (Creek) Nation) leaves NCUIH to finish his 3L year at the University of Oklahoma College of Law, where he is the Vice President of the campus’ Native American Law Student Associate (NALSA) and is the Moot Court Administrator for the National Native American Law Student Association (NNALSA), among other extra curriculars. Here’s what he had to say about his fellowship with NCUIH:

“I am a citizen of the Muscogee Nation and an advocate for civil rights/social movements. As a third-year law student at the University of Oklahoma College of Law, I desired an externship at an organization that aligned with my morals and purpose. NCUIH was an easy contour to my passions for social justice. I attended a Native American Bar Association D.C. meeting with NCUIH where the CEO, Francys Crevier, asked for me to come work with them in the Fall. I applied to be a legal fellow while participating as a board member of the National Native American Law Students Association furthering my commitment to my communities.

I learned that around 70% of the Native American population lives in urban areas. The trust responsibility the federal government maintains with tribal nations extends into these urban areas. I am proud to witness Congress grant advance appropriations to the Indian Health Service, partly due to the advocacy and dedication of NCUIH team members. I also learned a lot of information regarding agency comment periods and the sweeping regulations involved in the healthcare industry.

The connections I made at NCUIH will last throughout my career. My supervisor Rori was always helpful, friendly, and supportive. The relations between a non-profit and the federal government were insightful. I witnessed many advocates from all over Indian Country speak about the issues their specific communities face. I plan to take the knowledge gained from the agency meetings and projects I completed with me for the rest of my career. NCUIH treated me like one of their own and I couldn’t imagine the cost of having missed an opportunity like this. Mvto!”

Headshot of Adrianne Elliott

“The mentorship I received from the policy team proved invaluable to my professional and personal growth. I am passionate about advancing self-determination and sovereignty for Native peoples across the country and look forward to bringing this new knowledge and skillset into the next steps in my Indian law career to ensure all Natives are included in laws and policies that impact them and their wellbeing.” – Adrianne Elliott (Cherokee Nation of Oklahoma)

Adrianne Elliot (Cherokee Nation) was able to extend her summer Law and Policy Fellowship throughout the fall semester. NCUIH is honored that she wished to continue working with us, and that she was able to continue her invaluable work on behalf of urban Native Americans across the nation. To read her reflection from the summer, click here.

About NCUIH Law and Policy Fellowship

Available to undergraduate, graduate and law students as remote work, this opportunity allows students to work part-time throughout the semester, accommodating for classes and availability, or full time during the summer. Internships and Fellowships are available for academic credit or for compensation, dependent on funding. If you, or someone you know, is interested in learning more about what it means to be a NCUIH Law and Policy Fellow, please visit the NCUIH Internship and Fellowship Program webpage to learn more about the opportunities NCUIH offers.

Tribal Leaders Highlight Need for Increased Urban Indian Health Funding in Fiscal Year 2025 IHS Budget Requests

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On January 25-26, 2023, the Indian Health Service (IHS) held its annual Area Report Presentations Webinar for Fiscal Year (FY) 2025 where Tribal leaders from all 12 IHS Areas and leaders from Native organizations, including the National Council of Urban Indian Health (NCUIH), presented on their budget requests. Many Tribal leaders emphasized the need to increase funding and resources for urban Indian health in the FY2025 budget. Navajo Nation President Buu Nygren stated: “The [Navajo] nation is also supporting the push to support urban Indian healthcare facilities and many Navajos live off the reservation should still be able to receive equitable healthcare through the IHS network system.” Areas also highlighted the need for increased funding for mental and behavioral health, as social isolation during the height of the pandemic negatively affected physical and emotional well-being. Additionally, Area leaders mentioned the critical need for increased funding for Health Information Technology (IT) modernization, permanent authorization of the Special Diabetes Program for Indians (SDPI), and permanent exemption from sequestration.

Background on Budget Formulation

As part of the trust responsibility to provide health care to all American Indians and Alaska Natives (AI/ANs), Tribal leaders present their funding needs each year to the Secretary of HHS and the Director of the Office of Management and Budget. The recommendations are formed through the Tribal Budget Formulation Work Group (TBFWG) and serve as a framework for the Administration in setting budget amounts for their annual requests to Congress. This process ensures the federal government has the resources to provide health care to all AI/ANs in fulfillment of the trust responsibility.

Area Report Highlights

Several Areas featured the work of urban Indian organizations (UIOs) in their presentations and advocated for increased allocation of funding and resources for urban Indian health.

  • IHS Phoenix Area highlighted the program increase of $92.6 million identified in FY2024 remains a top priority for FY2025 for urban Indian health. The Area advocated that services must be aligned and enhanced across the Indian health care system.
  • IHS Bemidji Area stressed that UIOs are underfunded and rely heavily on restrictive grants which can be financially unstable and recommended an increase of $23 million for urban Indian health in FY 2025.
  • IHS Oklahoma City Area stressed that although 78% of AI/AN people reside in urban areas, the funding allocation for urban Indian health only reflects approximately 1% of the IHS annual budget. They recommend that urban Indian health is prioritized as a part of tribal health priorities to advocate that Congress increase the budget to appropriate funding levels.
  • IHS Tucson Area highlighted that the urban Indian line item needs to be fully funded to address critical health disparities faced by AI/ANs residing in urban areas. They also shared multiple success stories such as the completion of a new housing development to address the housing shortage and a completed recreation center that brings water and electricity to rural communities.
  • The IHS Billings Area Representatives emphasized that the current funding level for the urban Indian population is inadequate and that leaving the reservation does not forfeit the rights to health care.

NCUIH Supports Full Funding of Urban Indian Health and Other Key UIO Priorities for FY2025

Chandos Culleen, NCUIH’s Director of Federal Relations, presented the following UIO priorities for FY 2025 during the Area Report Webinar:

  1. Urban Indian health funding amount of $977.4 million, an increase of $3.8 million over FY 2024 recommendations.
      1. This amount reflects the average of the draft 12 IHS Area recommendations and is critically needed to address health priorities for Natives in urban areas including:
        1. Ensuring Urban Indian Health funding keeps pace with population growth.
        2. Providing funding for UIO facilities and infrastructure.
        3. Expanding service offerings to Native patients in urban areas.
  2. Establishing permanent 100% Federal Medical Assistance Percentage (FMAP) for UIOs.
  3. Increased behavioral health funding for UIOs.
  4. Maintaining advance appropriations for IHS.
  5. Special Diabetes Project for Indians (SDPI) reauthorization.

Top Priorities

Mr. Culleen emphasized that UIOs only receive funding from one line item in the IHS budget, urban Indian health, which is historically underfunded and does not keep up with rising medical inflation costs. UIOs do not have access to other distinct IHS funding sources such as facilities improvements and upgrades, funding from Hospitals and Health Clinics, Purchase & Referred Care, and Contract Support Costs. Only an increase to the Urban Health line item assures increased service capacity for UIOs.

Next Steps

IHS will hold their FY 2025 National Tribal Budget Formulation Work Group on February 14-15, 2023 where tribal representatives from each Area come together to review and consolidate all the Area’s budget recommendations into a comprehensive set of national health priorities and budget recommendations. NCUIH will continue to advocate for full funding for urban Indian health and increased resources for UIOs.

Urban Indian Health Policy Updates

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You spoke and we listened. NCUIH hosted five focus groups last year with Urban Indian Organizations and conducted a survey to identify policy priorities for 2023. Here are NCUIH’s top five priorities for 2023:

  1. Increased Funding to Indian Health Service (IHS) and the Urban Indian Line Item
  2. Establishing permanent 100% Federal Medical Assistance Percentage (FMAP) for services at UIOs.
  3. Increased Behavioral Health Funding
  4. Maintaining Advance Appropriations
  5. Reauthorization of Special Diabetes Program for Indians (SDPI)

Coming Soon: NCUIH’s 2022 Policy Assessment and the 2023 Policy Priorities Document

Advanced Appropriations Celebration

NCUIH, National Indian Health Board (NIHB), and National Congress of American Indians (NCAI) Celebrate the Historic Inclusion of Advance Appropriations for the IHS

What Happened: Congress enacted a Fiscal Year (FY) 2023 omnibus spending package, including a historic provision providing advance appropriations for the Indian Health Service (IHS). Prior to this change, IHS was the only federal healthcare provider without basic certainty of funding from one year to the next.

Why it Matters: With advance appropriations, American Indians and Alaska Natives will no longer be uniquely at risk of death or serious harm during delays in an FY 2024 funding agreement. Inclusion of IHS advance appropriations in the spending bill means that IHS services will be protected from the harmful effects of disruptions in federal funding for FY 2024 because Congress has agreed to an amount this year that becomes available immediately on October 1, 2023.

Other Key Provisions in the Omnibus

  • $6.9 billion for IHS for FY 2023​
  • $90.4 million for urban Indian health for FY 2023 – $17 million increase above FY 2022 enacted level​
  • $5.1 billion for Advance Appropriations for FY 2023​
  • $24 million for the Good Health and Wellness in Indian Country Program​
  • $80 million authorized to be appropriated through FY2023-FY2027 for new Native Behavioral Health Access Grants​
  • Tribal Behavioral Health grant (formally known as Native Connections) was reauthorized​
  • Reauthorizes and establishes scheduled funding increases for the Maternal, Infant, and Early Childhood Home Visiting Program (MIECHV) and doubles the Tribal set-aside from 3% to 6% for the Tribal Home Visiting Program​
  • Maintains funding under BIA for the Native boarding school initiative​

This success would not have been possible without all the advocacy from Tribes, Tribal organizations and Urban Indian organizations. As part of this effort, the National Indian Health Board, the National Congress of American Indians, and the National Council of Urban Indian Health have been part of a broad coalition of advocates and champions for IHS advance appropriations. Our organizations would like to thank the coalition for its dedication and leadership during this endeavor.

“We applaud Congress and the White House for listening to Native communities and doing what is right. For far too long, the federal government has allowed political disputes over budgets to jeopardize the lives of American Indian and Alaska Native people. Every single time there is a stopgap budget, the funding for urban Indian health clinics is deferred and reduced. This compromises the delivery of health care. We look forward to working with our leaders to help the United States make good on its responsibility to provide health care for the people who gave up the land we are on today.”

– Sonya Tetnowski (Makah), President of the National Council of Urban Indian Health

Updates from Federal Relations

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As part of our commitment to support the development of quality, accessible, and culturally sensitive healthcare programs for AI/ANs living in urban communities, NCUIH submits comments to ensure your voice is heard.

Here are topics and dates to keep on your radar:

Previously Submitted Comments

  • December 15 – IHS Urban Confer on Office of Urban Indian Health Programs (OUIHP) Strategic Plan Draft 3 and Implementation Plans​
  • January 13 – IHS Urban Confer with Director Tso on UIO Priorities​
  • January 30 – Administration for Children and Families (ACF) Tribal Maternal, Infant, and Early Childhood Home Visiting (MIECHV) Guidance for Submitting Reports

Upcoming Comment Submissions

  • February 13 – Department of Veterans Affairs (VA) Proposed Rule on Copay Exemptions for Indian Veterans​
  • March 3 – Office of the Assistant Secretary for Health (OASH) Strengthening Primary Health Care​

Important Meetings You May Have Missed

  • A Virtual Confer was held on December 15 with IHS Director Tso. ​
    – This confer was to focus on Urban Indian Health Priorities and allow UIOs to speak directly to the Director. NCUIH held a prep session the day prior to the confer.​
  • Monthly full Centers for Medicare and Medicaid Services (CMS) Tribal Technical Advisory Group (TTAG) conference call held on January 11.​
  • Sec. Becerra and Civil Rights Partnership on Medicaid Unwinding meeting held on January 17.​
  • Health and Human Services (HHS) Secretary’s Tribal Advisory Committee (STAC) Meeting held January 17 – 18​
  • IHS Area Reports for Fiscal Year 2025 Tribal Budget Formulation, (virtual)​ held on 25-26
  • NCUIH Policy Priorities webinar, (virtual)​ held on January 31

Important Federal Guidance and Communication

NCUIH Monitoring SCOTUS Case: Department of Interior v. Navajo Nation

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The Issue at Hand: ​

Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.​

  • The appeal of an April 2021 Ninth Circuit Decision​
  • Cert. granted by the Court on Nov. 4, 2022, oral argument TBD
  • Department of Interior argues that the Ninth Circuit decision is contrary to a precedent stating that Tribes must identify a specific trust-creating rule to enforce that obligation​
  • Navajo Nation argues that treaties creating the Navajo reservation create the obligation for the US to supply the Nation with water for agricultural purposes​

What’s at Stake:

The Court’s decision, in this case, has the potential to generally affect how the government’s trust responsibility to Tribes and Native people is defined and applied.​

Upcoming Events and Important Dates​

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Upcoming Events

Thank you for all your hard work and advocacy!

NCUIH Recommendations Included in Report on Improving the Health and Safety of American Indian and Alaska Native Mothers and Infants

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On December 7, 2022, the Health and Resources and Services Administration (HRSA) Advisory Committee on Infant and Maternal Mortality (ACIMM) submitted a report to the 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.” The report offers a set of recommended actions that could be among the many steps the Federal government may take, both to reconcile past actions and to step up to the obligations to American Indians and Alaska Natives (AI/AN) that it has abrogated since the founding of our nation. The National Council of Urban Indian Health (NCUIH) played an integral role in the report to ensure the needs of off-reservation AI/AN mothers were included. The report offers an analysis of the historic issues and current conditions facing AI/AN women and infants in the United States, through the lens of poor birth outcomes for AI/AN mothers and babies. It highlights a toxic legacy of genocide and trauma and acknowledges centuries of detrimental policies and programs that have disadvantaged and decimated AI/AN populations.

NCUIH has advocated on the behalf of urban AI/AN maternal and infant health and has worked closely with the ACIMM on AI/AN maternal and infant health issues. On September 14, 2022, NCUIH’s Vice President of Public Policy, Meredith Raimondi, testified before the HRSA ACIMM on urban Indian disparities and policy changes to address these disparities. Raimondi highlighted that “over half of urban Indian health centers provide care for maternal health, infant health, prenatal, and/or family planning. However, due to chronic underfunding, many of these health centers only have the capacity to carry out these services for the early stages of pregnancy.” She continued to say, “despite desiring to do so, many urban Indian health clinics cannot expand their services to provide complete care for mothers and infants from conception to birth due to underfunding.”

Background

ACIMM focused its work on the birth outcomes of AI/AN mothers and infants because AI/AN populations are often overlooked in programmatic and policy discussions and investments even though their birth outcomes are among the worst in the country. Reasons for this oversight are numerous, including small population size, dispersed populations, lack of representation in decision-making spaces, and Tribes being non-state entities. The plight of AI/AN mothers and infants in the United States is a human rights issue that must be urgently addressed.

ACIMM’s report recommended three areas for strategic action framed on the premises of having healthy social and physical environment and access to high-quality care are essential to good birth outcomes; racism and the devaluing of AI/AN women disproportionately affects this population which negatively impact maternal and infant health outcomes and mortality; and AI/AN people have inherently protective practices embedded in their culture that contribute to their ongoing resilience.

  1. Make the health and safety of AI/AN mothers and infants a priority for action.
  2. Improve the living conditions of AI/AN mothers and infants and assure universal access to high quality healthcare.
  3. Address urgent and immediate challenges that disproportionately affect AI/AN women before, during, and after pregnancy.

Infant and Maternal Health Disparities in Native Health

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’s work with AI/AN Maternal and Infant Health

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 Maternal, Infant, and Early Childhood Home Visiting Program (MIECHV) and doubling the Tribal set-aside – which includes UIOs. Additionally, in August, NCUIH submitted comments to HRSA’s 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 Natives populations in HRSA’s overall efforts of improving health outcomes for all AI/ANs living on and off reservations. NCUIH also released an infographic showcasing data on infant and maternal health disparities in AI/AN communities.

Supreme Court Held Oral Argument on Case Challenging the Indian Child Welfare Act

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On November 9, 2022, the Supreme Court of the United States held oral argument in Haaland v. Brackeen, a case challenging the constitutionality of the Indian Child Welfare Act of 1978 (ICWA). The questions presented to the Court in Brackeen are: (1) Whether various provisions of ICWA violate the anticommandeering doctrine of the Tenth Amendment; (2) Whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families,” and for “Indian foster home[s];” (3) Whether the default placement preferences for Indian homes in adoption or foster care cases are rationally related to legitimate governmental interests and therefore consistent with equal protection. The Supreme Court’s decision in Brackeen will have far-reaching implications on all areas of Federal Indian Law and policy and the National Council of Urban Indian Health (NCUIH) continues to advocate for the protection of ICWA to safeguard American Indian/Alaska Native (AI/AN) children and families.

Summary of Oral Argument

Oral argument for Brackeen lasted over three hours and focused heavily on the scope of Congress’s constitutional authority to legislate on behalf of AI/ANs, the equal protection limitations on that power, and whether the requirements imposed on states by the ICWA, particularly the “active efforts” requirement, violates the anticommandeering doctrine. Oral argument began with the parties challenging ICWA, referred to as “plaintiffs.” Solicitor General Judd Stone argued on behalf of the state of Texas, and Matthew McGill, a partner at Gibson, Dunn & Crutcher, argued on behalf of the potential adoptive families. The plaintiffs’ arguments centered on the assertion that ICWA deprives Indian children and non-Indian prospective parents of the “best interest of the child” standard in child welfare proceedings in violation of the Equal Protection Clause. The parties defending ICWA, referred to as “defendants,” argued second. Deputy Solicitor General Edwin Kneeler argued on behalf of the federal defendants and Ian H. Gershengorn, a partner at Jenner & Block, LLC , argued on behalf of the intervening Tribes (the Cherokee Nation, Oneida Nation, Quinault Nation, and Morongo Band of Mission Indians).  The defendant’ arguments centered on the fact that Congress has broad power to legislate in Tribal affairs, and this power is limited only by other constitutional provisions or by the test set by Supreme Court precedent in Morton v. Mancari, 417 U.S. 535 (1974), which requires congressional action to be rationally related to the fulfillment of Congress’ unique obligations to Indians.

Background on Haaland v. Brackeen

Congress enacted the ICWA in 1978 to re-establish Tribal authority over the adoption of AI/AN children. ICWA is a procedural safeguard to “protect the best interests of Indian children and to promote the stability and security of Indian Tribes and families.” 25 U.S.C. § 1902. In Brackeen, Texas, Indiana, Louisiana, and individual plaintiffs (plaintiffs) sued the federal government in the U.S. District Court for the Northern District of Texas, 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 APA. The District Court ruled in favor of the plaintiffs, finding that the 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.  The District Court 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. On appeal, the Fifth Circuit reversed the District Court’s opinion in most respects. In a fractured ruling, the Fifth Circuit sitting en banc upheld portions of the District Court’s opinion and reversed other portions.

In early September 2021, the United States government, tribal defendants, as well as state and private plaintiffs filed petitions asking the United States Supreme Court to review the Fifth Circuit’s decision. The U.S. Supreme Court agreed to review the Fifth Circuit’s decision in Brackeen v. Haaland on February 28, 2022, and held oral argument on November 9, 2022.

NCUIH Advocacy

On August 19, 2022, NCUIH and five urban Indian organizations (UIOs) (Nebraska Urban Indian Health Coalition, Inc., Sacramento Native American Health Center, Fresno American Indian Health Project, All Nations Health Center, and Oklahoma City Indian Clinic) signed on to the National Indigenous Women’s Resource Center’s (NIWRC) amicus brief to the Supreme Court in support of the constitutionality of ICWA in the  Haaland v. Brackeen case. NCUIH worked directly with NIWRC to engage with UIOs to ensure that the submitted brief was inclusive of urban AI/ANs. On September 7, NCUIH submitted written comments to the Bureau of Indian Affairs (BIA) and the Administration for Children and Families (ACF) on the BIA and ACF’s efforts to promote the consistent application of ICWA) and protect children, families, and Tribes.

NCUIH previously provided an in-depth analysis on the impact of ICWA and will continue to monitor ongoing developments.

Next Steps

The Supreme Court will hand down a decision by the end of the 2022 term on July 1, 2023. Due to the complex nature of the case, a decision is not expected until the Spring. The Supreme Court’s decision in Brackeen will have far-reaching implications on all areas of Federal Indian Law and policy. 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.  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.

NCUIH Submits Comments to IHS Regarding the Office of Urban Indian Health Programs Strategic Plan and Implementation Plan

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On December 15, 2022, the National Council of Urban Indian Health (NCUIH) submitted comments to the Indian Health Service (IHS) regarding additional input and recommendations for revisions to the third draft of the IHS Office of Urban Indian Health Programs (OUIHP) Strategic Plan and the Implementation Plan. The Strategic Plan and the Implementation Plan will be significant in guiding the provision of high-quality and culturally competent health care in fulfillment of the United States’ trust obligation to American Indian/Alaska Native (AI/AN) people. These comments were submitted in response to a November 17, 2022 Dear Urban Leader letter seeking input and recommendations for the final draft of the 2023-2027 IHS OUIHP Strategic Plan and Implementation Plan.

Background

In 2017, IHS developed an OUIHP Strategic Plan 2017-2021, pursuant to the Consolidated Appropriations Act, which described what the Agency hoped to achieve over the next 5 years. IHS is currently finalizing a new OUIHP Strategic Plan for 2023-2027 based on evaluations of the prior Strategic Plan along with participation and feedback received from urban Indian organization (UIO) leaders, IHS staff, and other stakeholders. According to the OUIHP, the new Plan will include goals, objectives, strategies, and performance measures, based on input from UIO Leaders, partners, and external stakeholders.

NCUIH’s Role

NCUIH has submitted three separate comments and recommendations to IHS regarding the Plan. These comments were based on NCUIH’s consultations with UIOs, the IHS Urban Confer held on December 15, 2022, and NCUIH’s subject matter expertise. NCUIH reiterated that input from UIOs is vital for IHS and its operating divisions to effectively gather comprehensive feedback, share critical information, and build mutual trust.

Recommendations

As OUIHP works to finalize the Strategic Plan for 2023-2027, NCUIH made numerous recommendations to strengthen the OUIHP strategic plan.  Among these recommendations were keeping strategic pillars from the prior draft regarding facilitating communication with federal partners on UIO issues and to provide technical assistance to UIOs transitioning from an outreach and referral program to an ambulatory clinic. Further, NCUIH recommended revisions on a strategic pillar to retain strategies regarding receiving 100% Federal Medical Assistance Percentage (FMAP) for UIOs.

NCUIH thanks the OUIHP for the hard work in developing this comprehensive third draft and for conferring with UIOs on additional recommendations. NCUIH also appreciates the opportunity to provide additional comments and recommendations on the OUIHP Strategic Plan Draft 3.  NCUIH strongly believes that the Strategic Plan and the Implementation Plan are important vehicles to articulate leadership priorities, provide direction for program management functions, engage external partners and entities, and measure OUIHP’s progress toward meeting the goals and objectives of IHS. NCUIH looks forward to the final version of the 2023-2027 Strategic Plan and to working with OUIHP to ensure both the Strategic Plan and Implementation Plan are successful.

White House National Strategy on Hunger, Nutrition, and Health Outlines IHS Produce Prescription Program, Urban Indian Organizations Eligible

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On September 27, 2022, during the White House Conference on Hunger, Nutrition, and Health, the Biden-Harris Administration released the National Strategy on Hunger, Nutrition, and Health (the Strategy). The Strategy outlines actions the Administration aims to take to reach its goal “to end hunger in America and increase healthy eating and physical activity by 2030 so fewer Americans experience diet-related diseases” and commits that the Indian Health Service (IHS) will implement and evaluate a National Produce Prescription Pilot Program, which urban Indian organizations (UIOs) are eligible to participate in. It also recognizes that States should collaborate with non-profit or community-based organizations to establish state-funded produce prescription programs (PPPs) for low-income individuals and families. According to the Strategy, produce prescriptions are “fruit and vegetable prescriptions or vouchers provided by medical professionals for people with diet-related diseases or food insecurity” and can “effectively treat or prevent diet-related health conditions and reduce food insecurity.”

Pillar 2 of the Strategy seeks to “ensure that our health care system addresses the nutrition needs of all people” and further outlines how IHS can implement and evaluate a National Produce Prescription Pilot Program. The Fiscal Year (FY) 2022 funding bill authorized $3 million for the Indian Health Service (IHS) to create a Produce Prescription Pilot program in coordination with Tribes and UIOs to increase access to produce and other traditional foods for American Indians/Alaska Natives (AI/ANs). This pilot program was also included in the recently passed FY 2023 funding bill and maintained at FY 2022 funding levels. Currently, the American Indian Health and Family Services (AIHFS), a Title V UIO located in Detroit, Michigan, is already operating a produce prescription program called Fresh RX.

About Produce Prescription Programs (PPPs)

PPPs are medical treatment or preventative services for patients who are eligible due to diet-related health risks or conditions, food insecurity, or other documented challenges in access to nutritious foods, and are referred by a healthcare provider or health insurance plan. These prescriptions are fulfilled through food retail and enable patients to access healthy produce with no added fats, sugars, or salt, at low or no cost to the patient. PPPs are designed to improve healthcare outcomes, optimize medical spending, and increase patient engagement and satisfaction.

The National Produce Prescription Coalition (NPPC) is a coalition that aims to leverage PPPs as prevention and intervention for diet-related disease and further embeds this effective model into healthcare and food retail systems. The goal is to embed PPPs as a covered benefit for members of all government-sponsored health plans whose healthcare providers and case managers diagnose as having or having elevated risk for diet-related illness as well as having or having elevated risk for food insecurity. This includes Medicaid and the CHIP, Medicare and Medicare Advantage, as well as beneficiaries of IHS.

The NPPC Policy Platform includes:

  • Indian Health Service: Utilize congressional appropriation and significant philanthropic support to advance a PPP demonstration project and establish standards for utilization within IHS.

AI/ANs and Nutrition and Health

UIOs provide essential access to nutrition, food, and health resources for the more than 70 percent of AI/ANs living off-reservation. AI/AN people experience the highest rates of diabetes across all racial and ethnic groups (14.5 percent), compared to 7.4 percent of non-Hispanic whites. According to a 2017 report published in the Journal of Hunger & Environmental Nutrition, “[u]rban AI/ANs were more likely to experience food insecurity than rural AI/ANs.” Moreover, diabetes and heart disease are among the top five leading causes of death for AI/AN people who live in urban areas. Additionally, urban AI/AN people are more than three times more likely to die from diabetes than their white peers and have higher death rates attributable to heart disease than urban white people.

NCUIH Advocacy

The Administration sought input on the development and implementation of this Strategy and initiated Tribal Consultation on June 28, 2022. On July 15, 2022, the National Council of Urban Indian Health (NCUIH) submitted comments to the Administration, the Department of Health and Human Services (HHS), and the US Department of Agriculture (USDA) and recommended that they support UIOs to promote food security, nutrition, and exercise; include urban AI/AN populations in future research efforts and government projects; and establish consistent Urban Confers regarding nutrition, hunger, and health.

On September 28, 2022, Walter Murillo (Choctaw), CEO of NATIVE Health and President-Elect of NCUIH, headlined a panel titled “Breaking Barriers: Bridging the Gap Between Nutrition and Health” at the White House Conference on Hunger, Nutrition, and Health, where they unveiled the Strategy. Mr. Murillo highlighted high rates of food insecurity in Indian Country, which intersects with other social determinants of health such as limited housing, employment, and lack of trust in health care systems in Native communities.

NCUIH will continue to monitor program updates in the Strategy and the IHS National Produce Prescription Pilot Program.

HHS Launches New Maternal Health Resources for American Indian and Alaska Native Communities

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On December 1, 2022, the U.S. Department of Health and Human Services(HHS) Secretary Xavier Becerra attended the White House Tribal Nations Summit where he discussed the Department’s commitment to addressing mental and maternal health in American Indian and Alaska Native (AI/AN) communities. As part of HHS’ commitment, the Centers for Disease Control and Prevention (CDC) and the Office of Minority Health (OMH) launched a new Hear Her campaign segment that works to improve AI/AN maternal health outcomes by raising awareness of life-threatening warning signs during and after pregnancy and improving communication between health care providers and their patients.

Background on Hear Her Campaign

The CDC’s Division of Reproductive Health launched the Hear Her in 2020 as a national campaign that brings attention to pregnancy-related deaths and provide education and encouragement to pregnant and postpartum women (within one year of delivery).  The campaign supports CDC’s efforts to prevent pregnancy-related deaths by sharing potentially life-saving messages about urgent warning signs.

The Hear Her campaign was launched because too many people die from pregnancy-related complications. Alarmingly over 700 women die each year in this country from problems related to pregnancy or delivery complications. Every death is a tragedy, especially when two thirds of pregnancy-related deaths could be prevented. As many as 50,000 women experience severe, unexpected health problems related to pregnancy that may have long-term health consequences. Additionally, there are significant racial and ethnic disparities in pregnancy-related complications and deaths.  The Hear Her campaign centers on the stories of women who have experienced pregnancy-related complications.  Recognizing urgent maternal warning signs and getting an accurate and timely diagnosis can save lives during pregnancy and up to a year after delivery.

AI/AN Infant and Maternal Health Disparities

According to the 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.

Given the maternal health disparities that AI/AN people and communities experience, it is a priority for CDC and OMH to reach tribal communities with resources CDC and OMH have worked to include the voices and perspectives of AI/AN throughout the development of the campaign and will continue to do so over time. As the campaign moves forward into implementation, the focus will be on building capacity for tribes and tribal serving organizations to implement the campaign and improve maternal outcomes.

UIO and NCUIH work in AI/AN Infant and Maternal Health

Urban Indian organizations (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).

 

Furthermore, 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 Maternal, Infant, and Early Childhood Home Visiting Program (MIECHV) and doubling the Tribal set-aside – which includes UIOs. Additionally, NCUIH submitted comments to HRSA Advisory Committee on Infant and Maternal Mortality (ACIMM), which advises the Secretary of HHS on department activities, partnerships, policies, and programs directed at reducing infant mortality, maternal mortality, and sever maternal morbidity and improving the health status of infants and women before, during, and after pregnancy. Moreover, in August, NCUIH submitted comments to HRSA’s 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 Natives populations in HRSA’s overall efforts of improving health outcomes for all AI/ANs living on and off reservations. NCUIH also recently released an infographic showcasing data on infant and maternal health disparities in AI/AN communities.

In addition to written advocacy, NCUIH has been invited to present on urban AI/AN maternal and infant health. On September 14, 2022, NCUIH’s Vice President of Public Policy, Meredith Raimondi, testified before the HRSA ACIMM on urban Indian disparities and policy changes to address these disparities. Raimondi highlighted that “over half of urban Indian health centers provide care for maternal health, infant health, prenatal, and/or family planning. However, due to chronic underfunding, many of these health centers only have the capacity to carry out these services for the early stages of pregnancy.” She continued to say, “despite desiring to do so, many urban Indian health clinics cannot expand their services to provide complete care for mothers and infants from conception to birth due to underfunding.”