In letter to HHS, senators write that the department’s failure to recognize the unique legal status of Indian tribes related to potential work requirements, access to health care raises serious concerns

WASHINGTON – Today, U.S. Senator Tom Udall, vice chairman of the Senate Committee on Indian Affairs, led a bipartisan group of 10 senators in expressing growing concern that the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) expressed views that challenge the unique legal status and well established protections given to Indian tribes.

In addition to Udall, the letter is signed by U.S. Senators Charles E. Schumer (D-N.Y.), Maria Cantwell (D-Wash.), Lisa Murkowski (R-Alaska), Jeffrey A. Merkley (D-Ore.), Heidi Heitkamp (D-N.D.), Martin Heinrich (D-N.M.), Catherine Cortez Masto (D-Nev.), Elizabeth Warren (D-Mass.), and Tina Smith (D-Minn.).

In their letter to HHS Secretary Alex Azar, the senators responded to views expressed by HHS and CMS in a “Dear Tribal Leader” letter issued on January 17, 2018, and subsequent related statements made by HHS personnel on the issue of American Indian and Alaska Native (AI/AN) exemption from Medicaid work requirements. The senators cited comments from CMS leaders, including CMS Administrator Seema Verma, arguing that the administration could not grant exemptions because such exemptions would be “race based” and therefore could raise civil rights issues. Such an interpretation, the senators wrote, fails to “recognize the unique legal status of Indian tribes and their members under federal law, the U.S. Constitution, treaties, and the federal trust relationship.”

“The U.S. Constitution empowers Congress to regulate commerce with Indian tribes,” the senators wrote. “The ‘Indian Commerce Clause’ is generally cited as the source of authority for the federal government to establish treaties, statutes, executive orders, and regulations that support a distinctive legal status under federal law for federally-recognized Indian tribes. The Supreme Court has repeatedly upheld this unique political status and the government-to-government relationship between tribes and the United States – most notably, in Morton v. Mancari, which affirmed that federal classifications fulfilling federal obligations to Indians are not based on race but instead on a political relationship between the tribes and the federal government. This ruling -- combined with a number of statutes, regulations, and additional court decisions -- confirms that tribes are not a racial group but rather political communities.”

The senators went on to note that Medicaid and Medicare programs are essential to fulfilling the federal government’s unique trust and treaty obligations to tribes. They wrote, “Medicaid participation now ensures that more than 50 percent of patients at some tribally operated health systems, 40 percent of patients at federally operated Indian Health Service facilities, and 25 percent of all AI/ANs nationwide have access to vital medical care.”

The senators continued, “the potentially devastating impacts that CMS’ views on AI/AN Medicaid enrollment protections could have on AI/AN health care access combined with HHS’ reported mischaracterization of the status of AI/ANs as ‘race based’ by its officials raises significant concerns.”

The senators requested immediate information about:
• CMS’ views of Tribal Leader and state requests to exempt AI/ANs from Medicaid work requirements;
• The statutory constraints that prevent CMS from exempting AI/ANs from Medicaid work requirement referenced in the January 17, 2018, “Dear Tribal Leader” letter; and
• Clarification of HHS’ Office of Civil Rights’ interpretation that such an exemption for AI/ANs “could raise civil rights concerns.”

In addition to the bipartisan letter sent today, Udall issued the following statement regarding HHS and CMS’ statements: “I’m increasingly alarmed by HHS and CMS officials’ continued mischaracterization of tribal requests related to the Medicaid program as ‘race based.’ Such views are nothing short of outrageous. The department’s stated interpretation suggests a dangerous disregard for the well-established government-to-government relationship between tribes and the federal government.”

Udall continued, “Imposing restrictive conditions like work requirements on Medicaid eligibility not only flies in the face of longstanding congressional intent, but also threatens the wellbeing of all beneficiaries by limiting access to care. Denying benefits for tribal communities in particular is one of the worst examples of the impacts these policies can have on those that need Medicaid the most.”

The full text of the letter is available below.

Dear Secretary Azar,

We write to express our growing concerns at the views expressed by the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) in a “Dear Tribal Leader” letter issued on January 17, 2018, and subsequent related statements made by HHS personnel on the issue of American Indian and Alaska Native (AI/AN) exemption from Medicaid work requirements. The views expressed fail to recognize the unique legal status of Indian tribes and their members under federal law, the U.S. Constitution, treaties, and the federal trust relationship. We call on the Department to respond expeditiously to the information requests on this matter outlined below.

In the January 17 letter entitled “Opportunities to Promote Work and Community Engagement Among Medicaid Beneficiaries State Medicaid Director Letter,” Center for Medicaid and CHIP Services Director Brian Neale stated that the Agency is unable to require states to exempt AI/ANs from work and community engagement requirements because it is “constrained by statute.” Notably, Mr. Neale also attributed the Centers’ inability to require the exemption to “civil rights issues.” The letter provided no additional information outlining the basis for the Agency’s statutory constraints or civil rights concerns.

On the same day CMS sent the “Dear Tribal Leader” letter, members of the Secretary’s Tribal Advisory Committee (STAC) met with CMS Administrator Seema Verma, who indicated that the Agency based its views on the HHS’s Office of Civil Rights (OCR) interpretation that a work requirement exemption for AI/ANs would be “race based.” Tribal Leaders and organizations confirmed to our Offices that other Department officials have continued to cite OCR’s interpretation in meetings with Tribal Leaders on several subsequent occasions.

The U.S. Constitution empowers Congress to regulate commerce with Indian tribes. The “Indian Commerce Clause” is generally cited as the source of authority for the federal government to establish treaties, statutes, executive orders, and regulations that support a distinctive legal status under federal law for federally-recognized Indian tribes. The Supreme Court has repeatedly upheld this unique political status and the government-to-government relationship between tribes and the United States – most notably, in Morton v. Mancari, which affirmed that federal classifications fulfilling federal obligations to Indians are not based on race but instead on a political relationship between the tribes and the federal government. This ruling -- combined with a number of statutes, regulations, and additional court decisions -- confirms that tribes are not a racial group but rather political communities.

Shortly after the Mancari decision, Congress made clear its intent to leverage the Medicaid and Medicare programs for fulfillment of its trust and treaty obligations to tribes through changes to sections 1905(b) and 1911 of the Social Security Act. Congress’s extension of Medicaid and Medicare rests on the solid principles set forth by Mancari and its progeny: That Congress can extend federal benefits to Indian tribes and their members as a means of fulfilling Congress’s unique obligation toward tribes—all while abiding by the Equal Protection clause. Medicaid participation now ensures that more than 50 percent of patients at some tribally operated health systems, 40 percent of patients at federally operated Indian Health Service facilities, and 25 percent of all AI/ANs nationwide have access to vital medical care.

Concerned that CMS appears close to approval of Section 1115 waivers from states where Indian tribes are located that would impose work requirements on AI/ANs, Tribal Leaders and organizations have met with HHS and CMS officials to discuss a work requirement exemption. They report that the Agency has provided little insight into the legal and policy foundation for the views expressed in the “Dear Tribal Leader” letter. Accordingly, the potentially devastating impacts that CMS’s views on AI/AN Medicaid enrollment protections could have on AI/AN health care access combined with HHS’ reported mischaracterization of the status of AI/ANs as “race based” by its officials raises significant concerns.

Given our own concerns regarding HHS’ views and as part of our work in the Senate to ensure fulfillment of the federal government’s trust responsibilities, we request the Department furnish following information:

• CMS’s views of Tribal Leader and state requests to exempt AI/ANs from Medicaid work requirements;
• The statutory constraints that prevent CMS from exempting AI/ANs from Medicaid work requirement referenced in the January 17, 2018, “Dear Tribal Leader” letter; and
• Clarification of OCR’s interpretation that such an exemption for AI/ANs “could raise civil rights concerns.”