| A publication of Pine Tree Legal Assistance |
After an eight-year struggle, marked by seven years of inaction on Capitol Hill, Congress enters the 2008 election year with the fate of health care for Native Americans left hanging in the balance.
The Indian Health Care Improvement Act (IHCIA) provides the framework for delivery of health care to Native Americans and encourages the recruitment and training of Native American health professionals. The IHCIA was enacted by Congress and signed into law by President Gerald Ford in 1976. The goal of the law was to provide “the quantity and quality of health services necessary to elevate the status of American Indians and Alaska Natives to the highest possible level and to encourage the maximum participation of Tribes in the planning and management of those services.”
The Indian Health Care Improvement Act provides for the distribution of federal funds to Indian Health Services (IHS), the primary agency that delivers health care to Native Americans. Now, however, the level of funding under the IHCIA and services available through IHS are not meeting the needs of Native Americans. In July 2003, the U.S. Commission on Civil Rights (USCCR) issued a report entitled “A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country.” One oft-cited figure from the report is that Native Americans, through the IHS, receive less funds for health care services per capita than inmates in federal prisons: $2,158 for Native Americans, compared to $3,803 for prisoners. The report found that the majority of IHS clinics operate with only 59% of the funding they need to provide adequate health care. A previous USCCR report found that the health status of Native Americans was 20 to 25 years behind that of the general population.
The legislation being considered in Congress, called the Indian Health Care Improvement Act Amendments of 2007 (S. 1200 in the Senate and H.R. 1328 in the House), is the result of an eight-year effort. In 1999, tribal delegates from across the county worked together on proposals for a new law. They formed a National Steering Committee to incorporate those suggestions into a legislative draft. This draft was completed in October of 1999 and then sent to Congress and the White House. All of this was done to prepare for the expiration of the IHCIA in 2000, which was last reauthorized in 1992 by President Clinton.
Patricia Knox-Nicola, Health Director for the Penobscot Health Department on Indian Island, Maine was part of the consultation and drafting process. “Originally, back in '98 and '99 they asked all tribes from all areas of the United States to come together and have a tribal consultation to discuss IHCIA. We ended up with a drafting committee who actually drafted the language. From my understanding this is the first piece of legislation drafted entirely by Native Americans.”
The legislation to reauthorize the IHCIA primarily deals with updating the manner in which health care for Native Americans is delivered and administered. One provision will integrate mental health, substance abuse, domestic violence and child abuse services into a comprehensive behavioral health program, bringing these services “into a system that moves away from treating symptoms and into a synthesized delivery system that treats the whole person,” according to the National Indian Health Board (NIHB), an interest group devoted to policy issues relating to Indian health care which has been actively involved at every step of the IHCIA reauthorization process.
Other parts of the bill will prohibit states from requiring co-pays from Native Americans who receive Medicare and Medicaid. Few states, however, require co-pays. The bill also creates a National Bipartisan Indian Health Care Committee to study Indian health care needs and make recommendations to Congress. Most importantly, the bill reauthorizes the IHCIA through 2017 which should include more adequate funding for IHS than it has had over the past 8 years since the law expired.
Attempts to reauthorize the IHCIA have been repeatedly opposed. The latest obstruction was an unidentified Department of Justice “white paper” issued in September of 2006. In it, the Department argued that the bill's definition of “Indian,” could make the IHCIA an unconstitutional race-based program. This definition, however, is found in many other federal laws, including the No Child Left Behind Act and the previous version of the IHCIA. The National Indian Health Board promptly responded to the objections and asked the Department of Justice to withdraw them, but, since Congress was in its final hours, the bill died without being voted on.
Throughout the 7 years of trying to get the bill passed in Congress, “the tribes have continually had to write off, sort of go tit for tat, moving things out of the IHCIA to hopefully ensure its passage,” reports Sandra Yarmel, health director at Pleasant Point Passamaquoddy Indian Reservation in Maine. Patricia Knox-Nicola of Maine's Penobscot Nation spoke of one particular provision sought in the original draft of the IHCIA that was taken out of subsequent versions. The desired provision would have changed the funding for the IHCIA from “discretionary funding to entitlement funding.”
If the funding were changed to “entitlement funding”, then the IHCIA would automatically receive funding in the President's budget each year. As it stands now, Congress must go back after the fact and fund the program each year through discretionary funding. Another problem with the IHCIA is that it does not set specific funding levels to be met each year; rather, it outlines the programs to be funded with “such funding as is appropriate.” Thus, the specific funding levels are re-determined each year. “There's a big difference between authorization and appropriation sometimes,” recounts Todd Stein, Deputy Chief of Staff at Representative Tom Allen's Washington D.C. office. Reauthorization does not necessarily guarantee adequate funding. However, Carol Francis, Health Director for the Houlton Band of Maliseets in Maine believes it may help. “When the bill was in place, it was easier to get funding each year.”
Sen. Byron Dorgan (D-ND), chairman of the Indian Affairs Committee, has been extremely frustrated with the lack of progress on the Senate version of the bill. On July 31st, he offered the reauthorization of the IHCIA (S. 1200) as an amendment to a bill to expand the State Children's Health Insurance Program. Dorgan withdrew the amendment after Finance Committee Chairman, Max Baucus (D-MN), and Majority Leader, Harry Reid, pledged to have the Finance Committee consider the bill on September 12th. But even a rally held by the National Indian Health Board on September 12th in the U.S. Capitol Building failed to build enough momentum for reauthorization of the IHCIA. Now with the 2008 election year upon us, the bill continues to languish in Congress. For more information on the progress of the Indian Health Care Improvement Act, visit http://www.nihb.org.