Department of Veterans Affairs Seeks Comments on Tribal Representation Expansion Project and Designation of Individuals to Represent AI/AN Veterans in VA Benefit Claims

On February 14, the Department of Veterans Affairs (VA) released a notice of Tribal consultation regarding the VA’s Tribal Representation Expansion Project (T.REP). Through this consultation and an additional written comment period, VA is seeking comments on three general areas.  First, whether Tribal communities have access to representation for VA benefit claims.  Second, for Tribes that are underserved in terms of representation, VA is also seeking comments regarding whether their Tribal government is interested in collaborating with VA to designate an individual within the community as authorized to prepare, present, and prosecute VA benefit claims.  Third, VA is seeking comments and recommendations on any issues, concerns or processes Tribes believe should be addressed in T.REP to better ensure that it is successful in expanding access to representation for AI/N veterans on their benefit claims before VA.

In addition to these general areas, VA has posed the following seven questions to be addressed through written comments:

  1. Are Native American Veterans in your community receiving any Start Printed Page 8343 assistance in pursuing their VA benefit claims? Are they being represented before VA on their VA benefit claims? Who is providing those services? For example, those claims services may be provided by: (a) A person employed by the Tribal government; (b) a member of your Tribe or Tribal community; (c) a VA-recognized organization or a representative of a VA-recognized organization; or (d) an agent or attorney. Please provide details as to the extent of the assistance provided and whom we may credit if your Tribal community currently has access to benefit claims assistance and/or representation before VA.
  2. If Veterans within your Tribal community have access to representation for their VA benefit claims, do you consider the option(s) for representation to be culturally competent representation? Please explain.
  3. If Veterans and their families within your Tribal community are not being adequately represented on their VA benefit claims, is there someone employed by, or affiliated, with your Tribal government that is currently, or could be, positioned to serve Veterans? For example, such individual may currently be serving Veterans and their families as a Tribal Veterans Service Officer (TVSO) or as a Tribal Veterans Representative (TVR).
  4. Are there barriers to Veterans and their family members within your Tribal community in accessing representation on their VA claims? For example, barriers may include: (a) Location or environmental obstacles; (b) language difficulties; (c) cultural differences; (d) distrust of the Federal or State government; (e) difficulties in finding training; (f) difficulties in securing office equipment and internet services; or (g) other circumstances.
  5. Do you believe that your Tribal government may want to collaborate with VA to identify someone affiliated with your government to be authorized to represent Veterans and their families on benefit claims before VA?
  6. Are you interested in being contacted by VA’s Office of General Counsel to learn more about the project?
  7. Are there issues, concerns, or processes that should be addressed in T. REP so that the project functions effectively in support of access to representation for Native American Veterans within your Tribal government and/or community? If so, how do you recommend VA address those matters in this project?

VA will be holding a virtual tribal consultation session on March 23, 2022, from 3:00-5:00 p.m. (Eastern Time). Written comments may also be submitted to VA by March 30, 2022. Written comments may be submitted by email to tribalgovernmentconsultation@va.gov, as well as through other methods listed in the Federal Register Notice.  To access the virtual consultation session, participants must register by clicking here.

Background

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

In 2017, VA amended its regulations governing recognition of organizations permitted to provide assistance on VA benefit claims in 2017 to permit the VA Secretary to recognize Tribal organizations in a similar manner as state organizations.  VA also amended its regulation to allow employees of Tribal governments to become accredited through recognized State organizations in a similar manner as a County Veterans’ Service Officer.  Despite a request that VA amend its regulations to also recognize UIOs, VA declined to do so.  VA stated that UIOs should consider applying for VA recognition as a regional or local organization.

VA’s T.REP represents VA’s most recent effort to ensure that AI/AN veterans and their families have access to appropriate representation in the preparation, presentation, and prosecution of their VA benefit claims. The aim of this program is to focus on Tribal communities that are being underserved in terms of representation. VA’s current T.REP focus is collaborating with Tribal governments to identify “an individual who is affiliated with their government, is of good character and reputation, and, who, after proper training on VA benefits, would be fit to be authorized by the VA General Counsel to represent on VA benefit claims.”  According to VA, if a tribal government identifies such a person “[t]he General Counsel then plans to use his discretionary authority, pursuant to 38 CFR 14.630, to specially authorize such individuals to prepare, present, and prosecute VA benefit claims before VA.”

Inclusion of UIOs in T.REP Would Benefit AI/ANs living in Urban Areas

NCUIH encourages UIOs to submit comments to VA by March 30, 2022 concerning T.REP, the needs of AI/AN veterans living in urban areas, and whether VA should consider including UIOs in T.REP.  AI/AN veterans living in urban areas face many of the same barriers to accessing competent representation in VA claims that AI/AN veterans face on reservations.  For example, VA cites cultural and language barriers as being two of the main deterrents for AI/AN veterans seeking representation on VA benefit claims.  AI/AN veterans living in urban areas also face cultural and language barriers when searching out representation on their claims.

Further, current estimates show that 67 percent of the veteran population identifying as AI/AN alone lives in metropolitan areas. UIOs currently serve six of the ten urban counties with the largest veteran AI/AN alone populations, including Maricopa County, Arizona; Los Angeles County, California; San Diego County, California; Bernalillo County, New Mexico; Oklahoma County, Oklahoma; and Tulsa County, Oklahoma. AI/AN veterans regularly prefer to see UIOs over other health care providers thanks to the provision of culturally competent care (including traditional healing services), community and familial relationships, shorter wait times, and shorter distance to travel.  Given the large portion of the AI/AN veteran population living in urban areas and UIOs’ ability to reach AI/AN veterans, inclusion of UIOs in T.REP would help VA accomplish its goal of “ensur[ing] that Native American Veterans and their families have access to responsible, qualified representation in the preparation, presentation, and prosecution of their benefit claims before VA.”

NCUIH Releases “2021 Policy Assessment: Setting Policy Priorities for 2022”

The policy assessment informs urban Indian organization policy priorities in 2022, identifies HIV care needs, reviews COVID-19 funding disbursements, and addresses data accuracy needs.

NCUIH is pleased to announce the release of its 2021 Policy Assessment. NCUIH hosted five focus groups to identify Urban Indian Organization (UIO) policy priorities for 2022, as they relate to Indian Health Service (IHS)-designated facility types (full ambulatory, limited ambulatory, outreach and referral, and outpatient and residential). The focus groups were held on the following dates in 2021: November 18, 19, and 22. Information was also collected from UIOs via a questionnaire sent out on December 1, 2021. Together these tools allowed NCUIH to work with UIOs to identify policy priorities in 2022; identify HIV prevention, treatment, and care needs at UIOs; review disbursements of COVID-19 funding; and determine the accuracy of the data reported by the IHS National Data Warehouse (NDW). Of 41 UIOs, 25 UIOs attended the focus groups or participated in the questionnaire. This is the second year that NCUIH has conducted focus groups and sent a questionnaire to UIOs.

Overview

The COVID-19 pandemic renewed the focus on priorities such as funding for UIO facilities, funding for behavioral health, and funding transparency. Existing priorities also remain a key focus across the UIOs, especially increasing funding amounts for the urban Indian health line item, funding flexibility, and parity issues such as permanent 100% Federal Medical Assistance Percentage (FMAP).

Key findings from the discussions are as follows:

  • Overall Funding, Facilities and Infrastructure, and FMAP Parity Top Priority Lists for UIOs
  • Area Office Inconsistencies Affect Staffing, Funding, and Resources
  • UIOs Need Health IT Guidance from IHS to Reflect their Unique Systems and Cite Data Accuracy Concerns
  • UIOs Need Community Health Representatives (CHRs)
  • Contract Flexibility and Funding Security
  • Facility Funding Necessary for UIOs Amid the COVID-19 Pandemic
  • COVID-19 Pandemic and Vaccine Impacts on UIOs
  • Need for Permanent 100% FMAP for UIOs
  • UIOs Identified a Need for Additional HIV, Behavioral Health, and Substance Abuse Support
  • Special Diabetes Program for Indians (SDPI) Reauthorization Remains a Priority
  • NCUIH Services Benefit UIOs and Opportunities to Expand Identified

Read the 2021 Policy Assessment: Setting Policy Priorities for 2022

Past Resources

2020 Policy Assessment

2021 Policy Priorities

CMS Requesting Information on Access to Coverage and Care in Medicaid and CHIP

Last month, the Centers for Medicare and Medicaid Services (CMS) issued a Request for Information (RFI) entitled Access to Coverage and Care in Medicaid and CHIP.  CMS is seeking input on topics related to healthcare access in Medicaid and the Children’s Health Insurance Program (CHIP).  This includes enrollment in coverage, maintaining coverage, and access to services and support. For the full list of questions included in the RFI click here. The comment deadline is April 18, 2021.  NCUIH urges UIOs to respond to this RFI to provide feedback to CMS regarding the barriers to access to coverage and care in Medicaid and CHIP in AI/AN communities.

CMS Strategic Vision for Medicaid and CHIP and Role of this RFI

This RFI is one of CMS’ first steps in developing a comprehensive access strategy for Medicaid and CHIP.  CMS has established three key areas for its strategic visions for Medicaid and CHIP: (1) coverage and access, (2) equity, and (3) innovation and whole-person care. CMS will use the feedback from this RFI to inform its future policy, monitoring, and regulatory approaches in all three key areas of the strategic vision.

CMS has set forth five objectives to be addressed in the RFI.

  1. Medicaid and CHIP reaches people who are eligible and who can benefit from such coverage.
    • CMS is interested in identifying strategies to ensure that individuals eligible for Medicaid and CHIP are aware of coverage options and how to apply for and retain coverage. Eligible individuals should be able to apply, enroll in, and receive benefits in a timely and streamlined manner that promotes equitable coverage.
  2. Medicaid and CHIP beneficiaries experience consistent coverage.
    • CMS is seeking input on strategies to ensure that beneficiaries are not inappropriately disenrolled and to minimize gaps in enrollment due to transitions between programs. These strategies are particularly important during and immediately after the COVID-19 Public Health Emergency (PHE) and can include opportunities that promote beneficiaries’ awareness of requirements to renew their coverage as well as states’ eligibility assessment processes, which can facilitate coverage continuity and smooth transitions between eligibility categories or programs (e.g., students eligible for school-based Medicaid services are assessed for Supplemental Security Income (SSI)/Medicaid eligibility at age 18, or youth formerly in foster care are assessed for other Medicaid eligibility after age 26).
  3. Whether care is delivered through fee-for-service or managed care, Medicaid and CHIP beneficiaries have access to timely, high-quality, and appropriate care in all payment systems, and this care will be aligned with the beneficiary’s needs as a whole person.
    • CMS is seeking feedback on how to establish minimum standards or federal “floors” for equitable and timely access to providers and services, such as targets for the number of days it takes to access services. These standards or “floors” would help address differences in how access is defined, regulated, and monitored across delivery systems, value-based payment arrangements, provider type (e.g., behavioral health, pediatric subspecialties, dental, etc.), geography (e.g., by specific state regions and rural versus urban), language needs, and cultural practices.
  1. CMS has data available to measure, monitor, and support improvement efforts related to access to services (i.e., potential access; realized access; and beneficiary experience with care across states, delivery systems, and populations).
    • CMS is interested in feedback about what new data sources, existing data sources (including Transformed Medicaid Statistical Information System [T-MSIS], Medicaid and CHIP Core Sets, and home and community based services (HCBS) measure set), and additional analyses could be used to meaningfully monitor and encourage equitable access within Medicaid and CHIP programs.
  2. Payment rates in Medicaid and CHIP are sufficient to enlist and retain enough providers so that services are accessible.
    • Section 1902(a)(30)(A) of the Social Security Act (the “Act”) requires that Medicaid state plans “assure that payments 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 plan at least to the extent that such care and services are available to the general population in the geographic area.” Section 1932 of the Act includes additional provisions related to managed care. Section 2101(a) of the Act requires that child health assistance be provided by States “in an effective and efficient manner….” CMS is interested in leveraging existing and new access standards to assure Medicaid and CHIP payments are sufficient to enlist enough providers to ensure that beneficiaries have adequate access to services that is comparable to the general population within the same geographic area and comparable across Medicaid and CHIP beneficiary groups, delivery systems, and programs. CMS also wants to address provider types with historically low participation rates in Medicaid and CHIP programs (e.g., behavioral health, dental, etc.). In addition, CMS is interested in non-financial policies that could help reduce provider burden and promote provider participation.

Need to Address Uninsured Rates Among American Indians and Alaska Natives

Medicaid and CHIP are important programs for addressing the significant disparities in insurance coverage which exist for AI/AN people.  For example, according to the Urban Institute, AI/AN children were uninsured at a rate of 8.9% in 2019, the highest rate for any ethnic group in the country.  AI/AN parents were uninsured at a rate of 18.7% in 2019, the second highest rate in the country.  The Urban Institute reported that in 2019, AI/AN children remained more than twice as likely as white children to be uninsured and AI/AN were more than 2.5 times more likely to be uninsured than with white parents.

Medicaid is also an important source of revenue for facilities like UIOs which provide healthcare to AI/ANs.  As the Kaiser Family Foundation noted in 2017, “Medicaid funds are not subject to annual appropriation limits . . . since Medicaid claims are processed throughout the year, facilities receive Medicaid funding on an ongoing basis for covered services provided to AIANs.”  While UIOs had hoped to see an increase in Medicaid funds in light of Congress’ authorization for eight quarters of 100% Federal Matching Assistance Percentage for UIOs, this has so far failed to result in higher rates of reimbursement for UIOs.

Indian Health Service Issues Guidance on Changes Due to Infrastructure Bill Fix for Urban Indian Organizations

On February 18, 2022, the Indian Health Service (IHS) Office of Urban Indian Health Programs (OUIHP)  shared a document answering several questions regarding the Indian Health Care Improvement Act (IHCIA) provision at 25 U.S.C. § 1659, which previously authorized the IHS to make funds available to Urban Indian Organizations (UIOs) to make minor renovations to facilities or construction or expansion of facilities, including leased facilities, but only to assist UIOs in meeting or maintaining accreditation standards of The Joint Commission (TJC).

Background and Advocacy

Urban Indian Organizations (UIO) are a fundamental, inseverable component of the Indian Health Service/Tribal Health Program/UIO (I/T/U) system, face chronic underfunding. The National Council of Urban Indian Health (NCUIH) has long advocated for adequate funding for all three parts of the I/T/U system to better serve the American Indian and Alaska Natives (AI/AN).

Section 509 of the Indian Health Care Improvement Act (IHCIA) previously only permitted IHS to provide UIOs with funding for minor renovations by mandating that funding only be provided to UIOs that meet or maintain compliance with the accreditation standards set forth by The Joint Commission (TJC). These restrictions on facilities funding have ultimately prevented UIO facilities from obtaining the funds necessary to improve the safety and quality of care provided to AI/ANs in urban settings.

COVID-19 has exacerbated failing infrastructures at UIOs due to longstanding needs without funding.  for UIOs to have funding flexibility for facility renovations and upgrades to comply with COVID regulations. The Padilla-Moran-Lankford amendment included in the Infrastructure Investment and Jobs Act (IIJA) removed this restriction to allow UIOs to use existing federal dollars on necessary facility needs. NCUIH has worked closely on a bipartisan basis for the past year on the technical legislative fix to support health care for tribal members who reside off of reservations. In addition to the amended provision at 25 U.S.C. § 1659, there are portions of the Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA) and American Rescue Plan Act (ARPA), which may be used for facilities-related purposes.

ICWA’s Constitutionality Challenged and Review by the Supreme Court Underway

On February 28, 2022 the U.S. Supreme Court agreed to hear a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). ICWA came under intense scrutiny in an April 2021 en banc decision of the United States Court of Appeals for the Fifth Circuit. In Brackeen v. Haaland, the Fifth Circuit considered a challenge to the constitutionality of ICWA brought by Texas, Louisiana, Indiana, and several individual plaintiffs.  A sharply divided court generally upheld the constitutionality of ICWA.  However, as a result of its divided ruling, the Court also upheld the lower court’s decision that certain provisions concerning the placement preferences of Native children for Indian homes as well as certain ICWA processes violated the Constitution.  Finally, the Court ruled that the corresponding provisions of the law’s implementing regulations violated the Administrative Procedures Act (APA). The Supreme Court has now granted, and consolidated, four petitions for a writ of certiorari that raise overlapping questions on several constitutional doctrines, including equal protection, standing, anticommandeering, and nondelegation, as well as APA considerations. The case is expected to be argued in the fall 2022.

Purpose of the ICWA and Its Success for AI/AN Children

ICWA was created in 1978 by the federal government to re-establish tribal authority over the adoption of Native American children. The goal of the Act was to strengthen and preserve Native American family structure and culture. Studies conducted in advance of ICWA’s drafting showed that between 25% and 35% of all Native children were being removed from their home 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 was established as a safeguard that requires placement cases involving Native American children be heard in tribal courts, if possible, and permits a child’s tribe to be involved in state court proceedings. It also requires testimony from expert witnesses who are familiar with Native American culture before a child can be removed from his or her home. If a child is removed, either for foster care or adoption, the law requires that Native American children be placed with extended family members, other tribal members, or other Native American families prior to placement in non-Indian homes.  For a more complete explanation of the requirements of ICWA, please visit the Native American Rights Fund’s “Practical Guide to the Indian Child Welfare Act.”

As eighteen leading national child welfare organizations, including Casey Family Programs and the Child Welfare League of America, attested to the Supreme Court, ICWA represents “the gold standard for child welfare policies and practices that should be afforded to all children.”  According to the National Indian Child Welfare Association (NICWA), ICWA “[l]essens the trauma of removal by promoting placement with family and community . . . [p]romotes the best interest of Indian children by keeping them connected to their culture, extended family, and community, which are proven protective factors . . . [and] [p]romotes placement stability by ensuring that voluntary adoptions are truly voluntary,” among other benefits.  Positive and continuing connections to one’s family, community, and culture, are key factors in ensuring health and well-being.

However, despite the progress which has been made since 1978, the need for ICWA remains today.  According to NICWA, “Native children are removed from their homes at 2–3 times the rate of their white counterparts and often are not placed with relatives or other Indian families, even when such placements are available and appropriate.  In addition, “Native families are the most likely to have children removed from their homes as a first resort, and the least likely to be offered family support interventions intended to keep children within the home.”

Legal Proceedings and Opposition to ICWA

In Brackeen, Texas, Indian, 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 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 overturned the District Court’s decision in most respects. The Fifth Circuit 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 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.

Supreme Court to Review

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 April decision. In their petitions, the States and private individuals stated that ICWA places “various legal mechanisms that play favorites based on race” and that the Supreme Court should “reject the United States’ and tribes’ efforts to artificially narrow this court’s review of these mechanisms.”  While the tribes and the federal government agree with the Fifth Circuit’s decision that ICWA is generally constitutional and accords with long-standing precedent, they also believe that review of this decision is appropriate due to the Court’s narrow interpretation and decision to overturn specific provisions regarding placement preferences and processes.

This will be the Supreme Court’s first ruling on ICWA since the 2013 decision in Adoptive Couple v. Baby Girl , in which a 5-4 court ruled that a Cherokee father couldn’t rely on ICWA to block his biological child’s adoption. Since that time, the structure of the Supreme Court has changed and there is the possibility that a case like this could be another opportunity for Justice Neil Gorsuch to again serve as a swing vote on AI/AN issues and provide the decisive vote to uphold ICWA. Because ICWA has long received bi-partisan support, the government and tribes’ positions could potentially sway the politically divided Supreme Court to uphold the constitutionality of the long-standing law.  Indeed, the Fifth Circuit found it notable that the Plaintiff States (including Ohio which filed an amicus brief on their behalf) “are home to only about 1% of the total number of federally recognized Indian tribes and less than 4% of the national American Indian and Alaska Native population,” while the States which filed amicus briefs supporting ICWA “are collectively home to 94% of federally recognized Indian tribes and 69% of the national American Indian and Alaska Native population.”

ICWA and Urban Populations

AI/AN children are overrepresented in state foster care systems. According to NICWA, AI/AN children are in foster care at a rate 2.7 times greater than their proportion in the general population. 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 undoubtably has an impact in urban AI/AN communities. Many health problems arise for AI/ANs living in urban settings because of mental and physical hardships due to the lack of family and the traditional cultural environments. Additionally, urban Indian youth are at a greater risk for serious mental health and substance abuse problems, suicide, increased gang activity, teen pregnancy, abuse, and neglect.

If the Supreme Court were to uphold the Fifth Circuit’s decision and declare portions of ICWA unconstitutional or go even further and declare the entire statute unconstitutional, urban AI/AN youth who may already feel isolated and disconnected from their cultural ties may be even more at risk if they enter the foster or adoption systems and there are no protections to keep them from being further removed from their communities and culture.

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 being Native is a political classification is a critical underpinning of not just ICWA, but many laws that relate to housing, healthcare, education, and employment.   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.

NCUIH will continue to closely monitor updates in this case and alert UIOs and stakeholders to what a decision could mean for urban Indian communities.

VA Issues Proposed Rule on the Pilot Program on Graduate Medical Education and Residency

On February 4, 2022 the Department of Veterans Affairs (VA) issued a proposed rule to revise its medical regulations to establish a new pilot program on graduate medical education and residency (PPGMER). The proposed rule would implement the PPGMER to place residents in existing or new residency programs in covered facilities, as required by section 403 of the MISSION Act of 2018 (Public Law 115-182).  In addition, Section 403 requires that placement of pilot program residents be prioritized in Indian Health Service facilities, Indian tribal or tribal organization facilities, certain underserved VA facilities, or other covered facilities.  VA is inviting invites public comments on the PPGMER by April 5, 2022.

The PPGMER and Proposed Structure and Operating Procedures

VA anticipates that the PPGMER will operate under the same basic structure as its current Graduate Medical Education (GME) program.  In VA’s GME program, VA provides for resident positions to be filled in VA facilities but does not place residents itself.  To provide for the education of residents, VA forms academic affiliations with sponsoring institutions and enters into other agreements to delineate funding of residency program educational costs and the resident stipend and benefits costs.  Accordingly, for the PPGMER VA plans to form agreements with sponsoring institutions and the covered facilities in which residents would be placed.

VA proposes to place residents through a request for proposal (RFP) process.  The process will begin by VA Central Office issuing an RFP to VA health care facilities to announce PPGMER placement opportunities.  VA health care facilities would then work in collaboration with covered facilities to submit responses to the RFP to VA Central Office.  Only VA health care facilities will be permitted to submit responses to the RFP.  VA Central Office will then evaluate the responses to the RFP from VA health care facilities and determine which covered facilities will receive residents.

VA will evaluate several factors when determining which covered facilities receive residents: the ratio of veterans to VA providers in a county, the range of clinical specialties of VA and non-VA providers in an area, whether a provider in a covered facility is included in a specialty in the most recent VA staffing shortage determination, whether the covered facility is located in a community with an underserved VA facility, if the covered facility is located in a Health Professional Shortage Area, or in a rural or remote area. The VA will also take into consideration other factors like the distance between a covered facility and the closest VA facility, and the ability of the program to maintain a sustainable residency program.

As part of the pilot program, the MISSION Act authorizes the VA to pay residents stipends and benefits at non-VA facilities along with the educational costs associated with their training, while in the program. Covered costs may include certain startup costs of new residency programs. As part of their training residents may treat non-veteran patients. The law requires prioritization of placement of residents in facilities operated by the Indian Health Service, American Indian tribes, or tribal organizations, as well as certain underserved VA facilities and other covered facilities.

Need for UIO Providers

As with other facilities in the Indian Health Service, Tribal, and Urban (I/T/U) system, UIOs are suffering from staffing shortages.  While the Indian Health Professions Program has had great success in assisting AI/AN programs to recruit and retain health care providers, IHS reports that it cannot fund all of the loan scholarship applicants.  Access to residents funded by the PPGMER could assist UIOs in addressing these staffing shortages.  Inclusion of UIOs in this program would be especially appropriate given the services which UIOs provide to AI/AN veterans.  Many AI/AN veterans often prefer to obtain health care service through UIOs because they provide culturally competent care, shorter wait times, community and family relations, and shorter distance to travel.

Because of these factors, NCUIH believes that the PPGMER could be a valuable opportunity to serve the AI/AN veteran population and ease staffing shortages.  NCUIH encourages UIO leaders to submit written comments to VA regarding this program, UIOs’ interest in participating, and the importance of VA considering inclusion of UIOs as covered facilities for placement of residents in the proposed regulations.

Biden Announces Nomination of Roselyn Tso for Director of the Indian Health Service

On March 9, 2022, President Biden announced the appointment of Roselyn Tso, an enrolled member of the Navajo Nation, as the Director of the Indian Health Service (IHS). Tso previously worked in the Portland Area where she began her career with IHS in 1984 and served in several capacities, including working with the three urban programs in the Portland Area that provide services ranging from community health to comprehensive primary health care services. Tso is currently the Director of the Navajo Area of IHS and most recently served as the Director of the Office of Direct Services and Contracting Tribes (ODSCT) within IHS. Tso holds a Bachelor of Arts in interdisciplinary studies and a master’s degree in organizational management from Marylhurst University in Portland, Oregon. As the IHS Director, Tso will be responsible for administering a nationwide health care delivery program that is responsible for providing comprehensive health care services to American Indians and Alaska Natives through the Indian Health Service, Tribes, Tribal organizations, and urban Indian organizations. The National Council of Urban Indian Health has previously stressed the importance of a appointing a permanent IHS Director and called for the elevation of the role to Assistant Secretary.

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Omnibus Bill Released with VAWA and Strides for Urban Indian Health

The bill includes $73.4 million for urban Indian health and $6.6 billion for IHS

On March 9, 2022, the House Appropriations Committee released a draft of the Consolidated Appropriations Act, 2022 (H.R. 2471) for Fiscal Year (FY) 2022 (also known as the “Omnibus”) consisting of $1.5 trillion in discretionary spending and $15.6 billion to manage the COVID-19 pandemic. This bill comes after Congress passed three Continuing Resolutions maintaining the FY 2021 budget, with the most recent CR set to expire on March 11, 2022. The 2741-page omnibus bill authorizes $6.6 billion for the Indian Health Service (IHS) for FY 2022, a 6.3% increase above the FY 2021 enacted level; $73.4 million for urban Indian health for FY 2022, a 17.13% increase above the FY 2021 enacted level and the highest increase in the past 10 years; 2022 Violence Against Women Act (VAWA) Reauthorization with Tribal and urban Indian provisions; and COVID-19 supplementals to manage the pandemic domestically and abroad.

The Tribal Budget Formulation Workgroup (TBFWG) requested $12.8 billion for the Indian Health Service and the House included $8.1 billion in its passed legislation, however, the amount enacted would be the highest increase of any account for the Department of Interior and Related Agencies, which demonstrates a strong bipartisan commitment from Congress to improving health outcomes for American Indians and Alaska Natives. Unfortunately, though, the final amount still falls well short of fully funding the Indian Health Service to properly provide health care services for all American Indians and Alaska Natives in the United States to meet the trust responsibility. Additionally, the bill does not include Advance Appropriations despite robust advocacy from Tribes and Urban Indian Organizations.

Current Status and Next Steps

Funding for the federal government expires on March 11. Congress will likely approve the current continuing resolution through March 15. It is expected that the Omnibus will be approved by Congress and signed into law by the President. As of 2:45 p.m. ET today, the COVID-19 supplemental funding has been removed and Speaker Pelosi says the House will move forward to vote on the Omnibus without the COVID funding. The National Council of Urban Indian Health (NCUIH) will continue to monitor developments and provide more in-depth analysis as legislation continues to move forward.

Overview of IHS and Urban Indian Health Requests

Line Item FY21 Enacted FY22 TBFWG Request FY22
President’s
Budget
FY22 House
 Passed
FY22 Senate
Proposed
FY22 Draft Omnibus
 Urban Indian
Health
 $62,684,000  $200,548,000  $100,000,000  $200,500,000  $92,684,000 $73,424,000
Indian Health Service $6,236,279,000 $12,759,004,000 $8,471,279,000 $8,100,000,000 $7,616,250,000 $6,630,986,000
Advance Appropriations $6,586,250,000 (FY23)
Missing and Murdered Indigenous Women $24,900,000

Summary

In summary, the package includes the following NCUIH priorities for Urban Indian health:

  • $73.4 million for urban Indian health for FY 2022
  • Inclusion of UIOs in the 2022 VAWA reauthorization
  • $30 million annually from FY23-FY27 for grants for Creating Hope Through Outreach, Options, Services, and Education for Children and Youth (CHOOSE Children & Youth) grants to enhance the safety of youth and children who are victims of, or exposed to, domestic violence, dating violence, sexual assault, stalking, or sex trafficking and prevent future violence.
    • UIOs added as eligible entities.
  • $10 million annually for a new 3-year program (FY23-FY27) to award grants for the clinical training of sexual assault forensic examiners to administer medical forensic examinations and treatments to survivors of sexual assault. Of the $10 million, there is a set aside of 15 percent for purposes of making grants to entities that are affiliated with Indian Tribes or Tribal organizations or Urban Indian organizations.
    • UIOs included as eligible entities.
  • $5 million for a new 5-year demonstration grants (FY23-FY27) established for comprehensive clinical training of health care providers to provide generalist forensic services and trauma-informed care to survivors of interpersonal violence of all ages. Of the $5 million, there is a set-aside of 10 percent for purposes of making grants to support training and curricula that addresses the unique needs of Indian Tribes, Tribal organizations, Urban Indian organizations, and Native Hawaiian organizations.
    • UIOs included as eligible entities.
  • Title VIII “Safety for Indian Women” includes the following purposes:
    • to empower Tribal governments and Native American communities, including urban Indian communities and Native Hawaiian communities, with the resources and information necessary to effectively respond to cases of domestic violence, dating violence, stalking, sex trafficking, sexual violence, and missing and murdered Native Americans; and
    • to increase the collection of data related to missing and murdered Native Americans and the sharing of information among Federal, State, Tribal, and local officials responsible for responding to and investigating crimes impacting Indian Tribes and Native American communities, including urban Indian communities and Native Hawaiian communities, especially crimes relating to cases of missing and murdered Native Americans.

In summary, the bill provides the following for IHS, tribal organizations, and Urban Indian Organizations (UIOs):

  • $6.6 billion for the Indian Health Service for fiscal year 2022
  • $4.7 billion for the IHS health services account
  • Fully funds Contract Support Costs and Payments for Tribal Leases
  • $940 million for health facilities construction
  • $12 million from Substance Abuse and Mental Health Services Administration (SAMHSA) to Indian Tribes, Tribal Organizations, or consortia for Medication-Assisted Treatment for Prescription Drug and Opioid Addiction
  • Increase to SAMHSA State Opioid Response (SOR) Grants for tribes and tribal organizations
    • UIO are not included
  • $22.5 million for the Good Health and Wellness in Indian Country program
  • $15.6 million to make payments under the National Health Service Corps loan repayment program

Background and Advocacy

The National Council of Urban Indian Health (NCUIH) has long advocated for larger investments in AI/AN health care and has called on Congress to strengthen their commitment to Indian Country with increased funding in the FY 2022 appropriations:

Most recently, NCUIH joined the National Indian Health Board (NIHB) and 70 organizations in a letter to several Members of Congress and Congressional Committees urging for Advance Appropriations and no less than the House-passed level of $8.114 billion for IHS in the final Appropriations bill for FY 2022:

VAWA

NCUIH has been tirelessly advocating for an expansion of resources for all AI/ANs, including those who reside off-reservation, in the VAWA reauthorization. Since the passing of the House bill on VAWA (H.R. 1620) early last year which excluded support for off-reservation AI/ANs, NCUIH successfully advocated for urban Indian communities to be added in the Senate draft bill released on December 8, 2021. NCUIH, UIOs, and stakeholders supporting Indian health provided written comments to Senate Committee on Indian Affairs (SCIA) leadership to retain the provisions to assist all AI/ANs in the final VAWA reauthorization bill.

Policy Alert: COVID-19 and Omnibus Include Huge Wins for Urban Indians

The bills include a $5 million increase for urban Indian health.

Today, Congress released the “Consolidated Appropriations Act, 2021” (H.R. 133) consisting of a $900 billion COVID-19 pandemic relief bill and a $1.4 trillion omnibus spending bill. The package includes funding for Fiscal Year (FY) 2021 and provides COVID-19 vaccine funding along with other pandemic relief measures. The package includes $6.236 billion for Indian Health Service (IHS) in FY21 and extends the Special Diabetes Program for Indians (SDPI) until 2023.

In summary, the package includes the following National Council for Urban Indian Health (NCUIH) priorities for Urban Indian Organizations (UIOs):

  • $62.7 million for Urban Indian Health in FY21, a $5 million increase from FY20
  • $1 million to conduct an infrastructure study for facilities run by UIOs
  • Reimbursement from VA to UIOs for urban Native veterans’ health (H.R. 4153/S. 2365)
  • FTCA Coverage for UIOs (H.R. 6535/S. 3650)— This bill passed the Senate yesterday and is currently headed to the President’s desk for signature.

The package provides the following for IHS, Tribal organizations and UIOs:

  • Extends SDPI through 2023 at current levels
  • $210 million from CDC to IHS to plan, prepare for, promote, distribute, administer, monitor, and track coronavirus vaccines to ensure broad-based distribution access and vaccine coverage
  • $790 million from CDC to IHS for necessary expenses for testing, contact tracing, surveillance, containment, and mitigation
  • $125 million set aside for ITU in funding for Substance Abuse and Mental Health Services Administration (SAMHSA)
  • $15 million to make payments under the National Health Service Corps loan repayment program
  • Obesity prevention and reduction programs in consultation with Indian Tribes, Tribal organizations, and urban Indian organizations
  • Establish “Sec. 330n. Expanding Capacity for Health Outcomes” in Title 3 of the Public Health Service Act to include Indian Tribes, Tribal organizations, and urban Indian organizations

Next Steps

  • Congress plans to vote tonight on the Consolidated Appropriations Act, 2021.
  • NCUIH will conduct further in-depth analysis which will be forthcoming.

Memo: No Surprises Act and the Impact on Urban Indian Organizations

NCUIH prepared the following memo for Urban Indian Organizations with respect to the No Surprises Act:

Background on the No Surprises Act

  • The No Surprises Act was passed as part of the Consolidated Appropriations Act of 2021. The No Surprises Act went into effect January 1, 2022. The Act includes provisions that take effect in 2022 for medical providers.
  • The bill focused on banning surprise billing and is focused on high-cost services and providers.
  • Surprise billing happens when a patient with health insurance receives care from an out-of-network provider or an out-of-network facility, even unknowingly, and their plan does not cover the entire out-of-network cost. The provider or facility could then bill the patient for the difference between the billed charge and the amount their health plan covered. The No Surprises Act bans this practice.

How does the No Surprises Act affect UIOs?

  • Patients enrolled in federal programs such as, Medicare, Medicaid, Indian Health Service (IHS), Veterans Affairs Health Care, or TRICARE, already had protections against surprise billing. As such, most of the provisions in the No Surprises Act do not apply to UIOs.  But on September 30, 2021, HHS released an Interim Final Rule (IFR) with an important provision that does impact UIOs – the Good Faith Estimate (GFE).

What is the Good Faith Estimate?

  • The GFE is documentation that includes charge info for services and items provided by the provider.
  • A GFE is provided to patients that are uninsured or self-pay, that make an appointment more than three days in advance, or specifically request a GFE.
  • This documentation is provided when the patient makes their appointment, and has a requirement of listing a diagnostic code, essentially requiring administrative staff to diagnose patients who have yet to be seen.
  • For services that are recurring a single GFE can be issued for up to 12 months.

How does the GFE apply to UIOs?

  • The rule does not apply to people with coverage through programs such as Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE. These programs already prohibit balance billing.
  • AI/AN patients are considered insured when they receive care at an Indian Health Service facility, tribal health programs (also known as tribal 638 programs or tribal health clinics), or urban Indian organizations.
  • As such, UIOs do not need to provide a GFE for AI/AN patients. However, if a UIO provides care for non-AI/AN patients, those patients would be eligible for GFEs if they meet the other requirements (e.g., uninsured.)

Waivers and Exemptions

  • There is no development of a waiver program in the legislative text of the Act.
  • However, the National Association of Community Health Centers (NACHC) is advocating for HRSA FQHCs and “look-alikes” to be exempt from the Good-Faith Estimate (GFE) provision.
    • NACHC’s argument centers around the fact that the GFE would be redundant with the requirements (sliding scale fee) of section 330 of the Public Health Service Act (PHSA) and undermine its protections.
    • NACHC’s request is that Agencies use their discretion under the No Surprise Act in defining the terms “facility” and “provider” for purposes of the good faith estimate requirement in Section 112 and omit community health centers and clinics.

Does GFE apply to UIOs referring patients to other providers for services?

  • The GFE only applies to the provider that is collecting the check. If a patient is referred out for additional services, then the UIO only has to provide a GFE for the services the UIO is being paid for, and the referred to provider will have to provide a GFE for their services provided. However, services where the UIO is dependent on them to provide care, like labs, will need to be included in a GFE.

Conclusion

  • The No Surprises Act went into effect January 1, 2022.
  • This includes phase one of the GFE implementation which requires a GFE for charge info for services and items provided.
  • This requires that UIOs provide a GFE to non-AI/AN patients who are uninsured or self-pay and make their appointment more than three days in advance.
  • On February 3, 2021, on an All Tribal and UIO leaders Call, Capt. John Rael said IHS continues to work with CMS on the No Surprises Act and will provide UIOs with additional assistance on the Act.
  • NCUIH is advocating with a coalition of partners to have UIOs waived from the GFE provision.

 

For additional information, please contact Jeremy Grabiner, Policy Analyst, JGrabiner@NCUIH.org or email Policy@NCUIH.org.