Fifth Circuit Hears Oral Argument on ICWA Case

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Last week, the U.S. Court of Appeals for the Fifth Circuit heard oral argument on the constitutionality of the Indian Child Welfare Act (ICWA).  As previously reported, the court agreed to rehear the case, Brackeen v. Bernhardt, en banc.  Of the sixteen judges hearing the case, six asked the majority of the questions.  Attorneys from the Department of Justice, Navajo Nation, and an attorney representing Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation argued in defense of ICWA.  The states challenging ICWA were represented by the Texas Solicitor General.  An attorney representing individual plaintiffs also presented argument challenging ICWA.  As a reminder, the case centers around whether ICWA is unconstitutional on several bases — including whether it violates the Equal Protection Clause as a race-based statute.  A three-judge panel had previously held ICWA constitutional before the entire Fifth Circuit agreed to rehear the case en banc.

An audio recording of the oral argument is available here.

NCUIH will continue to monitor the case and provide updates as they become available.  Previously, in December 2019, NCUIH joined nearly 400 Tribes and Indian organizations in an amicus curiae brief filed in support of the Indian Child Welfare Act (ICWA).

NCUIH Submits Comments to CMS, HHS OIG

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On December 31, NCUIH submitted two sets of comments to the Centers for Medicare & Medicaid Services (CMS) and Department of Health & Human Services Office of the Inspector General (OIG), respectively.

NCUIH’s first comment letter was submitted pursuant to CMS’s request for information on the Medicare Program: Modernizing and Clarifying the Physician Self-Referral Regulations.  In the comments, NCUIH strongly encouraged CMS to create new exceptions to the physician self-referral law that are consistent with the trust responsibility to AI/ANs.

The second comments were on OIG’s proposed rule, Medicare and State Healthcare Programs: Fraud and Abuse; Revisions to Safe Harbors Under the Anti-Kickback Statute, and Civil Monetary Penalty Rules Regarding Beneficiary Inducements.  In the comments, NCUIH noted, among other things, the importance of care coordination agreements to the I/T/U system and opposed modifications that would effectively make the safe harbor completely unavailable to I/T/U facilities.The OIG proposed modifications to the existing safe harbor for local transportation. In general, transportation is a major challenge for Indian Country, tribes, and AI/AN people no matter where they reside. For Indian health care providers and their AI/AN patients, transportation poses a significant barrier to health care access. NCUIH commented on the proposed increase in the mileage limit and encouraged OIG to eliminate the mileage limit for Indian health programs altogether – or to further expand the limit for our health programs. You can also find a copy of the comments submitted by the CMS Tribal Technical Advisory Group here.

Federal Appeals Court that Affirmed ICWA Rules ACA Mandate Unconstitutional; Lower Court Will Reconsider the Entire Law’s Validity

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Today, the U.S. Court of Appeals for the Fifth Circuit ruled that the Patient Protect and Affordable Care Act (Affordable Care Act / Obamacare) individual mandate is unconstitutional. The appeals court narrowed a broader ruling from a Texas federal district court that found the entire Affordable Care Act was unconstitutional.  The appeals court did not invalidate the entire law, but instead sent it down to a lower court to reconsider whether any of the law can survive.

Whenever part of a statute is ruled unconstitutional, a court must then determine how much of the statute to invalidate. This is known as the severability doctrine. The U.S. Supreme Court test for severability is whether other provisions can exist with independent legal effect. Courts typically avoid striking entire laws if they can stand without the provisions that are found invalid. Many legal scholars have pointed to Congress’s decision to zero out just the mandate penalty in 2017 as proof that lawmakers meant for the rest of the ACA to stand.

This challenge to Obamacare was brought by more than a dozen Republican-led states that argued the law is no longer constitutional after Congress removed the penalty for not purchasing insurance in the 2017. The majority of the appeals court panel was made up of Republican-appointed judges, although they said the entire law did not need to fall. The other judge on the panel (Democratic-appointed) disagreed with the majority’s decision in a lengthy dissent.

In August, this same appeals court published its decision in Brackeen v. Bernhard, which was a challenge to the Indian Child Welfare Act (ICWA).  The appeals court affirmed that ICWA is constitutional recognizing the unique political status of tribes and American Indians and Alaska Natives. This was a big win for Indian Country.

The future of the law remains uncertain. It is highly likely to be challenged to the Supreme Court. This development could renew pressure on Obamacare opponents to explain how they plan to preserve the law’s insurance protections, after failing to agree on a replacement for years. If the entire Affordable Care Act is found invalid, it will jeopardize health care coverage for the roughly 20 million Americans covered through the law and its preexisting conditions protections.

Policy Alert: Congress Passes FY20 Minibus with $6M Increase for Urban Indian Health and Renews SDPI, CHC Through May

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This is the highest increase for the urban Indian line item. President Trump is expected to sign the bill before midnight.

On Thursday, December 19, 2019, the Senate passed the first part of the legislation to fund the federal government through fiscal year 2020. Congress decided to split all twelve appropriations bills into two different minibus bills, one without national security funding and a separate bill with national security-related items. The package with Interior Appropriations (H.R. 1865) has passed out of both chambers. This bill includes funding for the Department of Interior’s Indian Health Service and the urban Indian health line item through the September 30 end of the fiscal year. The President is expected to sign the bill before the current continuing resolution expires at midnight on Friday.

Indian Health Service and Urban Indian Line Item
As NCUIH reported earlier this week, the bill provides $6.047 billion for the Indian Health Service (IHS), $243 million more than fiscal year 2019 and $138 million more than the President’s budget request. IHS will see a 4% increase over FY19. The agreement includes $6 million in additional funds for the Urban Indian Health Programs, a long-overdue increase. NCUIH has long-advocated for an increase of at least $30 million for urban Indian health, however, this increase sets a higher water mark for next year’s negotiations.

105(l) Leases
The bill includes increases of $125 million to meet court-ordered requirements for tribal lease operating costs owed to tribes. The bill includes Senate report language directing IHS to implement better budget procedures to address this in the future.

Health Extenders
The health extenders including SDPI and CHC has been extended until May 22, 2020. This date provides additional time for negotiations on a longer-term reauthorization. NCUIH will continue to try to ensure the programs are extended for a longer-term, hopefully, 5 years, and to fight for further increases.

FY2020 Interior Appropriations

  • Indian Health Service – $6.04 Billion
  • Urban Indian Health Line Item – $57 Million

FY2019 Interior Appropriations

  • Indian Health Service – $5.8 Billion
  • Urban Indian Health Line Item – $51 Million

Press Contact:
Meredith Raimondi
mraimondi@NCUIH.org
202-417-7781

Policy Contact:
Carla Lott
cmlott@NCUIH.org

NCUIH Joins Coalition in Amicus Curiae Brief in Support of the Indian Child Welfare Act

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On December 13, NCUIH joined nearly 400 Tribes and Indian organizations in an amicus curiae brief filed in support of the Indian Child Welfare Act (ICWA). The brief, which was filed in the U.S. Court of Appeals for the Fifth Circuit, largely mirrors the brief filed in the lawsuit last year. As a reminder, a three-judge panel of the Fifth Circuit issued an opinion in August finding ICWA constitutional in part because it is not a race-based law.  However, the judges granted an order to rehear the case en banc — before the entire 17-judge panel. Defendants in the case, the federal government and Intervenor-Tribes, filed their supplemental briefs for the en banc stage on Friday, December 6.

NCUIH Submits Joint Comments on Colorado Medicaid Waiver

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On December 8, NCUIH submitted joint comments with the National Indian Health Board on Colorado’s proposed Section 1115 Medicaid waiver, Expanding the Substance Use Disorder Continuum of Care. In the comments, we noted the trust obligation and the importance of Medicaid to Tribes and Urban Indian Organizations (UIOs).  o that end, the comments expressed concern with lack of meaningful state consultation and encouraged the state to conduct further engagement with Indian Health Care Providers within the state and also advised that the expanded continuum of care program must be inclusive of I/T/U facilities.

View letter.

NCUIH TESTIFIES BEFORE CONGRESS ON “NATIVE VETERANS’ ACCESS TO HEALTHCARE”

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On October 30, 2019, the House Committee on Veterans’ Affairs, Subcommittee on Health conducted an oversight hearing entitled “Native Veterans’ Access To Healthcare”. NCUIH Board Vice President and CEO of the Indian Health Center of Santa Clara Valley Sonya Tetnowski (Makah) testified before the Subcommittee with Rep. Brownley presiding.

“While we know Native Americans serve at higher rates than anyone else they also endure the lowest health status of anyone else. This is a national shame, and a terrible violation of the trust responsibility the United States government is obligated to uphold. We must do better,” said House Committee on Veterans’ Affairs Chairman Mark Takano.

“We serve, we protect and yet we struggle to have parity in the system. I’m sad to report that American Indians and Alaska Natives have the highest poverty rate and the highest uninsured rate of any veterans. Urban Indian Organizations (UIOs) provide high-quality, culturally competent care to urban Indians, which consists of 75% of all American Indians and Alaska Natives (AI/ANs). We ask that the Department of Veterans Affairs (VA) fully implement the VA and Indian Health Services’ Memorandum of Understanding (VA-IHS MOU) and Reimbursement Agreement for Direct Health Care Services. This action would allow UIOs to be reimbursed for providing healthcare to AIAN Veterans. Most AI/AN veterans live in urban areas and would benefit from the culturally competent care provided at UIOs,” said Sonya Tetnowski in her testimony.

More Information

https://veterans.house.gov/events/hearings/subcommittee-on-health-oversight-hearing-native-veterans-access-to-healthcare

Panel One

  • Andrew C. Joseph Jr., Chairman of the Northwest Portland Area Indian Health Board, National Indian Health Board (NIHB)
  • President, National Congress of American Indians (NCAI)
  • Chief William Smith, Vice Chairperson, Alaska Native Health Board (ANHB)
  • Sonya M. Tetnowski, Vice-President, National Council on Urban Indian Health (NCUIH)
  • Chief Marilynn Malerba, Mohegan Tribe of Connecticut, Indian Health Service Tribal Self-Governance Advisory Committee (IHS TSGAC)

Panel Two

  • Dr. Kameron Matthews, Deputy Under Secretary for Health for Community Care, Veterans Health Administration

Accompanied by

  • Dr. Thomas Klobuchar, Executive Director, Office of Rural Health, Department of Veterans Affairs
  • Benjamin Smith, Deputy Director for Intergovernmental Affairs, Indian Health Service

Video

President Trump Announces Intent to Nominate Michael D. Weahkee for IHS Director, Other Nomination Updates

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On Tuesday, October 22, the White House announced on its website the President’s intent to nominate Michael D. Weahkee to the post of Director of the Indian Health Service (IHS).  Rear Admiral Weahkee has served as Principal Deputy Director and Acting Director of IHS and also as Assistant Surgeon General of the United States Public Health Services at the Department of Health and Human Services.  RADM Weahkee previously served as the chief executive officer at the Phoenix Medical Center.

In addition, on Wednesday, October 23, sources including Politico and Bloomberg Government reported that President Trump plans to nominate Stephen M. Hahn to the post of Commissioner of the Food and Drug Administration, pending clearance of a background check.  Hahn currently serves as a radiation oncologist at the M.D. Anderson Cancer Center in Houston, Texas.

NCUIH to Testify before Congress on “Native Veterans’ Access to Healthcare”

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The hearing hosted by the House Veterans’ Affairs, Subcommittee on Health will take place on Wednesday, October 30, 2019 at 10:00 AM EST.

On Wednesday, October 30, 2019, the Committee on Veterans’ Affairs, Subcommittee on Health will hold a hearing entitled “Native Veterans’ Access to Healthcare.” This oversight hearing will examine the unique barriers American Indian and Alaska Native veterans continue to face when seeking access to quality, culturally competent care from VA and tribal health systems. NCUIH Board Vice President and CEO of the Indian Health Center of Santa Clara Valley Sonya Tetnowski (Makah) will be testifying before the Subcommittee. With Rep. Brownley presiding, the hearing will take place in House Visitors Center 210 at 10:00 AM EST.

More Information

https://veterans.house.gov/events/hearings/subcommittee-on-health-oversight-hearing-native-veterans-access-to-healthcare

Panel One

  • Andrew C. Joseph Jr., Chairman of the Northwest Portland Area Indian Health Board, National Indian Health Board (NIHB)
  • President, National Congress of American Indians (NCAI)
  • Chief William Smith, Vice Chairperson, Alaska Native Health Board (ANHB)
  • Sonya M. Tetnowski, Vice-President, National Council on Urban Indian Health (NCUIH)
  • Chief Marilynn Malerba, Mohegan Tribe of Connecticut, Indian Health Service Tribal Self-Governance Advisory Committee (IHS TSGAC)

Panel Two

  • Dr. Kameron Matthews, Deputy Under Secretary for Health for Community Care, Veterans Health Administration

Accompanied by

  • Dr. Thomas Klobuchar, Executive Director, Office of Rural Health, Department of Veterans Affairs
  • Benjamin Smith, Deputy Director for Intergovernmental Affairs, Indian Health Service

Update: Plaintiffs in ICWA Litigation Petition Court for Rehearing

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On October 1, Plaintiffs in Brackeen v. Bernhardt, the case centering on the constitutionality of the Indian Child Welfare Act (ICWA), filed petitions for rehearing of the case en banc. Essentially, the Plaintiffs are asking the entire 17-member U.S. Court of Appeals for the Fifth Circuit to rehear the case, in effect setting aside the decision a panel of three Fifth Circuit judges issued in August.

As previously reported, in its August decision the court overturned a District Court finding that held ICWA unconstitutional declaring it creates a separate set of practices for a racial group. In doing so, the Fifth Circuit affirmed that ICWA and its implementing regulations are constitutional, recognizing the unique political status of tribes, American Indians, and Alaska Natives. On October 2, the court ordered the U.S. and Intervenor Tribes (Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, Quinault Indian Nation, and Navajo Nation) to respond to the petitions by Tuesday, October 15.

During the 2018 litigation, NCUIH joined an amicus brief with nearly 400 Indian organizations and tribes in support of ICWA. Typically, courts deny petitions for rehearing and leave the court’s prior decision to stand. However, there is no guarantee. The court could choose to rehear aspects of the case, the mechanics of which (timing, extent of new briefing, etc.) the court would subsequently determine, or it could change parts of its decision without even granting the petition.

NCUIH will continue to monitor progress in the case, along with other amici curiae, and will provide updates as we receive them. It is important to note that although the Fifth Circuit will first have to act on the petition for rehearing, Plaintiffs will still be able to petition the ruling to the U.S. Supreme Court.