Mark Trahant / Trahant Reports
Congress has voted to repeal the Affordable Care Act. Kinda, sorta. Because it’s actually way more complicated than a straight repeal of the law.
The House and Senate passed budget resolutions that instruct four committees in Congress to strip funding from the budget. This is important because it means that the actual language of the repeal will only require 50 votes to pass in the Senate (instead of the 60 votes that most bills require). Thus no help is needed from Democrats to make the repeal so.
Yet the details of that repeal — including what it actually means for the Indian Health Care Improvement Act, a chapter of the law — remain unclear. The language of repeal must focus on budget issues. The final language will be sorted out by the House Energy and Commerce, House Ways and Means, Senate Finance and the Senate Health, Education, Labor and Pensions committees.
And to make matters even more complicated President-elect Donald Trump told The Washington Post Sunday that he wants to replace the Affordable Care Act with insurance for all. What ever that means. Hard to imagine that Republicans in the House will go along. Trump told the Post that Medicaid cuts are not a part of his plan.
So far the actually legislative proposals go the opposite direction and target tens of billions of dollars that states now get for Medicaid expansion. It’s likely that any replacement will be some kind of block grant program that sends a set amount to states instead of funding every eligible person. The Indian health system is budgeted to receive $807,605,000 in fiscal year 2017 from Medicaid (and another 248 million from Medicare). (Previous: The billion dollar dilemma, funding Indian health in the Trump era.)
Under the rules of the Senate the fiscal repeal process is open to amendment. The Senate still must vote on a proposal by New Mexico Democrat Tom Udall to protect Native Americans on Medicaid. “Any reduction in federal payments to the Indian health system would jeopardize the lives and well-being of American Indians and Alaska Natives, as most health care facilities that serve Native Americans are already woefully underfunded,” Sen. Udall said.
The repeal will also likely end federal subsidies for people who buy private insurance on the open market. American Indians and Alaska Natives are eligible for a basic plan at no cost under the current law.
There is a long way to go before the repeal becomes law (and an even longer path ahead for any replacement). More about that later.
But first: There is something Indian Country can do now. There is still time to sign up for Medicaid, Medicaid expansion, the Children’s Health Insurance Program, and insurance found on the exchanges. This is money that will benefit the Indian health system for at least a year and as long as four years. This act of defiance will not only bring money to a local clinic or hospital, but it will pressure state lawmakers to find a solution for the people who already have Medicaid.
The Affordable Care Act in Indian Country has been a steady success. The law did not result in immediate full funding for Indian health. (In fact: I think the Indian Health Service could have done a lot more to sell the insurance programs to individuals.) Nonetheless Medicaid collections in the Indian Health Service budget have increased by more than 50 percent since the law was enacted. There are still far too many patients in the Indian health system who are uninsured. (Yes, I know, a treaty right, but one that’s not fully-funded.) The fact is patients who carry health insurance, including Medicaid, have more options in terms of care, especially when patients need treatment or specialists outside of the Indian health system. Unlike Medicaid, the Indian Health System is funded by appropriations. Healthcare services are limited by that funding.
American Indians and Alaska Natives still are uninsured at higher rates than the rest of the country. A report by Kaiser Family Foundation said too many Native Americans “have limited access to employer-sponsored coverage because they have a lower employment rate and those working tend to be employed in low-wage jobs and industries that typically do not offer health coverage.” Kaiser said Medicaid and other public coverage “help fill this gap, covering one in three nonelderly American Indians and Alaska Natives. However, even with this coverage, nonelderly American Indians and Alaska Natives are significantly more likely to be uninsured than the national average (21 percent vs. 13 percent).” And when it comes to children, “Medicaid plays a more expansive role … covering more than half of American Indian and Alaska Native children.” Yet the uninsured rate remains nearly twice as high as the national rate for children at 11 percent.
This Sunday was another deadline for people to sign up for insurance through the exchanges. But American Indians and Alaska Natives are exempt from that deadline. As healthcare.gov puts it: “Members of federally recognized tribes and ANCSA shareholders can enroll in Marketplace coverage any time of year. There’s no limited enrollment period for these individuals, and they can change plans up to once a month.” This is a zero cost plan. And signing up now is an act of defiance.
Remember there will be a transition once Congress comes up with a replacement plan. Adding more people to the rolls of Medicaid, Medicare, Children’s Health Insurance, and market exchanges is one way to demand that Congress come up with an alternative and not just destroy what’s in place.
So what will a replacement bill look like? That is impossible to know. There are at least four Republican alternatives that are little more than concept papers at this point.
On Sunday, Sen. Rand Paul, an ophthalmologist, R-Kentucky, who voted against repeal (because there was no replacement plan) said he would offer his own. A previous plan by Paul would have cut the Indian Health Service budget by more than 20 percent. He told radio host Laura Ingraham that Native Americans “don’t do very well because of their lack of assimilation.”
Tom Price is a surgeon, a member of Congress, and President-elect Donald Trump’s pick to run the Department of Health and Human Services. He has proposed his own replacement for the Affordable Care Act, the Empowering Patients First Act. His basic premise is to lure people away from insurance subsidies by offering tax credits, health savings accounts, and market-based incentives. But his plan was dismissed by a lot of Republicans because the tradeoff of a market-based health care system is that millions of working Americans will lose access to any insurance. The Fiscal Times says Price’s plan “Price would foster an insurance market very welcoming to young, healthy and financially self-sufficient people but hostile to sicker and older people.” Price’s plan (like Ryan’s A Better way) allows individual Native Americans to contribute to a Health Savings Account “regardless of utilization of IHS or tribal medical services.”
House Speaker Paul Ryan starts his reform proposal with “A better way.” The main idea is that insurance should be more competitive, creating more options for consumers. “Patients with pre-existing conditions, loved ones struggling with complex medical needs, and other vulnerable Americans should have access to high-quality and affordable coverage options. Obamacare’s solution was to force millions of people onto Medicaid, a broken insurance program that has historically failed lower-income families,” according to the policy paper. The plan says that American Indians and Alaska Native should be able to purchase care outside of the Indian health system with health savings accounts. “This gives American Indians more choice in where they receive care.”
Rep. Tom Cole, R-Oklahoma, and a member of the Chickasaw Tribe, has said that a replacement bill must include provisions for the Indian health system. He has not advocated for a particular plan but wrote in a column last week that “opponents of Obamacare have yet to settle on one specific replacement alternative, but there is a broad consensus about the core foundation upon which a replacement plan will be developed. Simply put, Americans should have access to more choices in health care plans, have a range of prices that make health care affordable to everyone, and a revised set of current rules and regulations to give Americans greater flexibility in purchasing and keeping their plans that aren’t dependent on where you live, who you work for, or what pre-existing condition they may have.”
Sen. Lamar Alexander is chairman of the Senate Health, Education, Labor and Pensions Committee. The Tennessee Republican has said he only wants to see the Affordable Care Act repealed once there are concrete, practicable reforms in place. He said his first focus will be on making sure that the insurance system is stable and fixing the exchanges where 11 million people have signed up for policies.
Alexander also wants states to have more flexibility with Medicaid, determine the rules about how that money could be spent.
One way that could occur is to cap the spending that each state gets for Medicaid, shifting to a set amount per person. According to the Kaiser Family Foundation: “Proponents of per capita cap proposals argue that this structure could reduce federal spending and promote flexibility for states. However, such policies may be difficult to implement and may result in cost shifts to states if pre-determined growth rates are lower than expected program spending.”
It’s unclear how the federal match for American Indians and Alaska Natives would work under this scenario. Nor is there a guarantee that Native American recipients of Medicaid (or whatever plan follows) would not be required to come up with a co-pay for medical care. That idea would crush the notion that Indian health care is a pre-paid federal obligation.
I would not bank on any of these plans becoming law. There is no easy or fast way to enact a new health care law. As Ezra Klein wrote in Vox: “Donald Trump likes to say he’s going to repeal Obamacare and replace it with ‘something terrific.’ Sadly for everyone, that’s probably not possible. What is possible is repealing Obamacare and replacing it with something that makes a different set of equally painful trade-offs.” The replacement of the Affordable Care Act will need 218 votes in the House and 60 votes in the Senate. The problem is that the very ideas that will improve prospects in the Senate, will likely weaken the case in the House.
So here are the three most important things to remember. First: Repeal can happen quickly. Second: Signing up for an insurance program now is an act of defiance. And, third, Congress is going to have a hell of a time agreeing on a replacement. It’s more likely that we will see chaos before we see consensus about the “what’s next?”
Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports
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