April 25, 2018

Native Americans aren't exempt from Medicaid work requirements, Trump admin says

Daily Briefing

    The Trump administration has denied requests from tribal leaders to exempt Native Americans from Medicaid work requirements.

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    Background

    According to Politico, the federal government historically has exempted Native Americans from certain health care requirements. For instance, Native Americans are exempt from the Affordable Care Act's individual mandate.

    Citing such precedents, tribal leaders have asked the administration to exempt Native Americans from work requirements that some states are implementing for certain Medicaid beneficiaries. Census data from 2014 show that more than 620,000 Native Americans live in the three states in which CMS has approved Medicaid work requirements and the additional 10 states that are seeking to implement such requirements. According to Politico, some states have proposed exempting Native Americans from the requirements, though federal officials could reject those proposals.

    Admin denies request

    The administration rejected tribal leaders' requests, saying exempting Native Americans from Medicaid work requirements would violate federal law because it would give Native American tribes—which, according to Politico, the administration said are a race, rather than separate governments—preferential treatment. A review by attorneys for the administration stated, "HHS believes that such an exemption would raise constitutional and federal civil rights law concerns."

    According to Politico, CMS had first alerted tribes of the decision in January and reiterated the decision this month during a meeting with tribes. HHS spokesperson Caitlin Oakley said senior HHS officials "have made it clear that HHS is open to considering other suggestions that tribes may have with respect to Medicaid community engagement demonstration projects." She added that HHS is committed to supporting Native American's health, saying, "[HHS] Secretary [Alex] Azar, HHS, and the Trump administration have taken aggressive action and will continue to do so to improve the health and well-being for all American Indians and Alaska Natives."

    Reaction

    Tribal leaders have said that tribes are constitutionally protected as separate governments, making any claims of "racial preference" moot.

    Mary Smith, a member of the Cherokee Nation who served as acting director of the Indian Health Service under former President Barack Obama's administration, said, "The United States has a legal responsibility to provide health care to Native Americans," adding, "Now you're going to take away health care and add a work requirement?"

    Caitrin McCarron Shuy of the National Indian Health Board called the administration's decision "very troublesome." She said, "There's high unemployment in Indian country, and it's going to create a barrier to accessing necessary Medicaid services."

    Frederick Isasi of Families USA said the "administration's refusal to give tribal nations an exemption from onerous new Medicaid requirements is a direct affront to the U.S. government's legal obligations under long-established treaties and federal law."

    According to Politico, tribes might file a lawsuit challenging the decision. Hobbs, Straus, Dean & Walker—a law firm that often represents Native American tribes—in February sent a memo to the administration warning that the decision violates the government's obligation to provide health care to Native Americans. The memo stated, "CMS has a duty to ensure that [Native Americans] are not subjected to state-imposed work requirements that would present a barrier to their participation in the Medicaid program." It continued, "CMS not only has ample legal authority to make such accommodations, it has a duty to require them" (Diamond, Politico, 4/22; Pandey, Axios, 4/22; Diamond, "Pulse," Politico, 4/24).

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