WASHINGTON – U.S. Senator Tom Udall, vice chairman of the Senate Committee on Indian Affairs and lead Democrat on the Senate Appropriations Subcommittee that oversees funding for the Indian Health Service (IHS), pressed IHS officials to affirm the unique legal government-to-government relationship between the federal government and American Indian and Alaska Native Tribes in response to concerning comments made earlier this year by Centers for Medicare and Medicaid Services (CMS) leaders and Department of Health and Human Services (HHS) personnel.
 
HHS recently stated that it would not exempt American Indian and Alaska Natives from proposals to take Medicaid coverage away from individuals who do not meet new, more restrictive eligibility requirements because such exemptions would "raise civil rights issues," a position that failed to recognize the unique legal status of Indian Tribes and their members under federal law.

During a Senate Appropriations Subcommittee hearing on the FY2019 budget request for IHS, Udall addressed these alarming HHS and CMS views that challenge the unique legal status of Indian Tribes under federal law.
 
"I recognize decisions relating to Medicaid are made by the Centers for Medicare and Medicaid Services, not IHS. But the question of how the administration views government-to-government relationships with Tribes is much bigger and more significant than any one program or bureau. I want assurances -- and Tribal leaders deserve assurances -- that this administration views its relationship with Native Americans as trust-based, not 'race-based,'" Udall said in his opening statement. "Taking the latter position would reverse two centuries of law and Supreme Court decisions that have, very firmly, underscored the political nature of this unique relationship. That would be a non-starter. I know that I'm not alone in this position."
 
Udall continued by pressing Acting IHS Director Rear Admiral Michael Weahkee about the Trump administration's current stance on this issue. Udall asked, "I understand that CMS recently began walking back this statement as a mischaracterization. But, I need – and Tribes are rightfully demanding – more assurances that the administration understands the federal government's unique trust relationship with American Indians and Alaska Natives. Yes or No – do you believe that federal programs or policies undertaken for the benefit of Tribes are 'race based?'"
 
Weahkee affirmed the unique legal relationship between the federal government and Tribes, responding, "No, it's not only race-based. There is a special political and legal relationship between the federal government and American Indian tribes."
 
Udall then urged Weahkee to continue educating HHS and CMS leaders within the Trump Administration on this issue and highlighted the important role Medicaid plays in increasing access to care in Indian Country.
 
"It's obvious that Medicaid – and specifically Medicaid expansion authorized under the Affordable Care Act – contributes significant funding toward tribal health care. Medicaid is not a substitute for full funding of IHS but, until we can address funding shortfalls in the service, Medicaid is one of the most important stop-gaps we have," Udall said. "That's why I'm concerned that recent actions by CMS allowing some states to impose extra eligibility barriers would take away Medicaid access for Native communities."
 
Medicaid currently accounts for 68 percent of all third-party billing revenues at federally-operated IHS facilities. That percentage is even higher at some tribally-operated IHS facilities where Medicaid reimbursements make up 90 percent of third-party billing receipts.
 
Udall's efforts to clarify the Trump Administration's stance on this topic follow an April letter he wrote to HHS Secretary Alex Azar outlining the growing congressional concern that HHS was failing 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. In addition to Udall, the letter to Azar was signed by a bipartisan group of ten senators – including 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.).
 
Video of the exchange is available HERE.
 
Udall's full opening remarks are available below:
 
I'm happy to welcome the acting director of Indian Health Service, Rear Admiral Michael Weahkee, before the subcommittee this morning.
 
Welcome back, Admiral Weakhee. And I'm very pleased to remind my subcommittee colleagues of your New Mexico roots.
 
I'd like to acknowledge the other officials who have joined Admiral Weahkee, including Rear Admiral Michael Toedt, who serves as chief medical officer; Rear Admiral Gary Hartz, who serves as director of Environmental Health and Engineering; and Ms. Ann Church, who is the acting director of Finance and Accounting for the Service. Thank you for being here.
 
I'd also like to recognize the important work that my chair, Senator Murkowski, has done in support of the IHS budget.
 
Since I joined this Subcommittee in 2015, I'm proud that we have increased funding for the I-H-S by 19 percent. We've done some good work, but we have much more to do.
 
And speaking of that, let's turn to the budget.
 
I appreciate that the Administration's proposal for the I-H-S is relatively generous by comparison to the rest of the President's budget request.
 
But the budget before us is still wholly insufficient to meet this nation's trust and treaty responsibilities and provide quality health care to American Indians and Alaska Natives.
 
All told, the budget decreases funding for IHS by 2 percent.
 
Within that amount, the budget does increase funding for contract support costs, which is important.
 
It also recognizes the need to pay for staffing for new health care facilities. And the need to continue investments to address urgent accreditation issues at IHS facilities in the Great Plains and, as of late last year, the Gallup Indian Medical Center in New Mexico.
 
But to fund these priorities, the executive takes an axe to other critical programs.
 
Facilities programs are cut by 42 percent. Line item construction—funding that's needed to build hospitals and health centers for tribal communities in New Mexico and other states that have been waiting for decades—is cut by two-thirds.
 
Funding for Indian Health Professions programs—dollars that go directly toward filling vacancies and improving access to quality health care—are cut by 12 percent.
 
Urban Indian Programs, purchased and referred care, and self-governance programs are all reduced.
 
Preventive programs are cut in half—even though Native Americans face some of the biggest challenges when it comes to access to health care.
 
And, much to the dismay of many tribes in New Mexico that I've heard from, the budget even proposes discontinuing Federal funding for community health representatives. These are tribal members who provide essential health care services when health clinics are closed or too far away.
 
These tradeoffs are unacceptable—especially when we think about the work that remains to improve health outcomes in Indian Country.
 
Despite the fact that this subcommittee has fought to increase the Indian Health Service budget, we're still not where we need to be.
 
We are still not providing all the resources on the ground we need to address preventive care. Or to tackle the epidemic-level mental health and addiction issues that Native communities are fighting to overcome.
 
We still have an unacceptable number of facilities dealing with accreditation problems – a problem that seems to be growing instead of shrinking.
 
We're still seeing double-digit vacancy rates for doctors, nurses, and other clinical personnel.
 
And—despite some important increases just gained in the omnibus—we're not making the progress we need to replace the Service's aging health care facilities.
 
This is a matter of setting priorities. And my view is that this administration needs to work with Congress and make funding for tribal health programs a greater priority.
 
While we're talking about priorities, I also want to stress a subject that's important to all of us on this dais.
 
That's respect for the government-to-government relationship that the United States government has with tribal nations.
 
I have been deeply concerned by certain administration policies reflecting this relationship. This includes rejecting requests from tribal leaders who asked to be exempted from state Medicaid proposals that would take health care coverage away from tribal members who do not meet new work requirements.
 
That's why I joined a number of members in April of this year to write the Department. We questioned the department rejecting the requests based in part on the rationale that granting such requests could quote "raise civil rights issues".
 
I recognize decisions relating to Medicaid are made by the Centers for Medicare and Medicaid Services, not IHS. But the question of how the administration views government-to-government relationships with tribes is much bigger and more significant than any one program or bureau.
 
I want assurances -- and Tribal leaders deserve assurances -- that this administration views its relationship with Native Americans as trust-based, not "race-based."
 
Taking the latter position would reverse two centuries of law and Supreme Court decisions that have, very firmly, underscored the political nature of this unique relationship.
 
That would be a non-starter. I know that I'm not alone in this position. And I expect this administration will face stiff bipartisan opposition if it tries.
 
It also bears emphasis that any changes that discourage tribal participation in Medicaid would also impact the service's bottom line. Thanks to Medicaid expansion under the Affordable Care Act, IHS has expanded access to health care for tribal members and greatly increased its third party reimbursements.
 
So I would also have serious concerns – both legal and fiscal – about any efforts to limit the ability to use Medicaid funds to supplement IHS dollars.
 
I look forward to talking more about this issue, and many others, when it's time for questions. Thank you Madame Chair.