Congress votes to repeal Affordable Care Act; kinda, sorta replacement is next

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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.

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Link: Interactive version of graphic.

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.”

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Tom Price is the nominee to head the Department of Health and Human Services and a critic of the Affordable Care Act. He has proposed his own plan to replace the law that relies on tax credits and other “market-based” solutions. (GreatAgain.Gov photo)

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.”

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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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Interior secretary pick has a record of listening to tribes

Rep. Ryan Zinke in Frazer, Montana, last summer. (Trahant photo)

Mark Trahant / Trahant Reports

HELENA, Montana — Just about a week ago it was clear that Cathy McMorris Rodger was headed to the Interior Department. Nope. It was a headfake. President-elect Donald Trump has instead picked Montana Rep. Ryan Zinke for the post.

This is a  much better appointment for Indian Country. Zinke is no less conservative than Rodgers, but since his days in the Montana legislature he has had an open door. He has reached out to tribes in a number of ways. He introduced and championed the Blackfeet water compact and he has supported federal recognition for the Little Shell Band of Chippewa Cree.

“The truth is Ryan does know the value of public lands, he does know, to an extent, I don’t know how deep, the issues of Indian Country,” said Sen. Jon Tester at the Montana Budget and Policy Center’s Legislative Summit Wednesday. He said the Senate confirmation hearing process will be useful in getting Rep. Zinke on record explaining his views on such things as the government’s Trust Responsibility to tribal nations.

Sen. Jon Tester, D-Montana, speaking at the Montana Budget and Policy Center Legislative Summit in Helena. (Trahant photo)

 “It’s a big deal for the state of Montana,” Tester said. “He has a chance to do some really good stuff. Compare him to some of the people nominated before, AKA Sarah Palin, we will take him in a heartbeat.”

At a congressional debate in Frazer, on the Assiniboine Sioux Tribal Nation, Zinke said he had been adopted as an Assiniboine. He said he supports tribes and sovereignty. “I don’t think anyone has worked harder trying to get Blackfeet Water Compact done … I have been out here not because I am your congressman, but because I care.” He said he has been to people’s homes, met with tribal councils, and visited powwows.

Harry Barnes, chairman of the Blackfeet Nation, told The Helena Independent, that the appointment is “a great day for Montana” and that “Montana tribes will have an ear in the Department of the Interior, which oversees the Bureau of Indian Affairs.”

Montana Republicans, many Western Republicans, are eager for an Interior Secretary who will open up more federal lands to oil and gas development. And on this score, Zinke will not disappoint. “I’m excited that the Trump administration plans to unleash the economic power of the resources of the nation,” Jeff Eisman, chair of the Montana Republican Party, told Montana Public Radio. “The federal government does control a lot of resources, especially in our end of the country.”

And it’s not likely tribes will often agree with Zinke. This is a Trump administration and Zinke was one of his early supporters. And Zinke has voted against tribes on other issues, such as the Violence Against Women Act,  a law that expanded tribal authority on domestic violence. 

If Zinke is confirmed by the Senate there would be a special election for his House seat.  (Previous: Juneau for President?)

And Denise Juneau?  She said Wednesday night: “I am looking forward to doors opening, figuring out if I want to take advantage of that, and bringing people with me.” That’s a far better answer than a yes or no. 

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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If, then, this. The shift from campaign promises to Indian Country policies

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President Barack Obama meets with President-elect Donald Trump in the Oval Office, Nov. 10, 2016. (Official White House Photo by Pete Souza)

Mark Trahant / Trahant Reports

If, then, this. A series of three words explaining what happens in any new White House. If Donald Trump wins the presidency, then many (not all) of the promises made during the campaign become policy. And it happens starting next month when the Congress races to try and make this so.

But “if, then, this,” is also about people. Who staffs the new campaign, especially those who represent Indian Country? And who represents the opposition?

So let’s start with what we know.

It’s likely that President-elect Donald J. Trump will nominate Cathy McMorris Rodgers as the next Interior Secretary and Tom Price as the Secretary of Health and Human Services. Who joins them? Who has their ear? How will their broad views on public policy impact Indian Country?  (Previous: Trump’s choice for Interior could risk salmon recovery, treaty rights.)

As The Atlantic said about Price. He will be running a massive federal healthcare agency, one that “administers the largest health-research centers in the world, most of the country’s public-health apparatus, the Indian Health Service, the Food and Drug Administration, and a collection of welfare and child-care services. While Price has a less-established policy record on many of these issues, his general philosophy of rolling back government spending and intervention suggests he may scale back HHS’s current efforts.” A less established policy record opens up a lot of questions.

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Another appointment, yet to be announced, would be in the next president’s executive office. Arizona State Sen. Carlyle Begay posted on Instagram: “It’s official … I’ll be working in the White House.” (Begay’s account is private, but it was reposted by Navajo Republicans on Facebook.) He doesn’t elaborate on the job title, but the most likely that post would be as a special assistant to the president on the Domestic Policy staff, a post now held by Karen Diver. Begay is Navajo.

One of the issues that the White House and Congress will have to flesh out is a proposal by Rep. Markwayne Mullin to reform the regulatory structure for tribal lands. A story in Reuters last week compared that plan to the termination, something that Mullin (who is a member of the Cherokee Nation) and former Interior Assistant Secretary Ross Swimmer say is not the case. Swimmer, who is also former principal chief for the Cherokee Nation, told Reuters: “It has to be done with an eye toward protecting sovereignty.”

Mullin said the press misunderstood him. He posted on Facebook: “This is a very personal and important issue for me and I want to clarify my actual comments that were distorted by the media. It is still and will always be my belief that the land entrusted to tribes belongs to the Native American people, and it ought to be up to them alone to decide how to best use and distribute the resources on their own land.”

Economist Terry Anderson has been making this case for years first from a think tank in Montana, The Property and Environment Research Center, and rom the Hoover Institution at Stanford University. He wrote just last month: “President-elect Trump is well positioned to grant more freedom to Native Americans.” (Note to Republicans: If you are serious about making this a policy, I would avoid the ‘free the Indians’ narrative. This was Arthur Watkins’ pitch during termination. The phrase has a definite and failed context.)

As will often be the case in a Trump White House, Anderson’s argument focuses on energy. “Considering the fact that tribes have an estimated $1.5 trillion in energy resources, President Trump should start by promoting more tribal authority over those resources,” Anderson wrote. “Such legislation is helping tribes like the coal-rich Crow. In 2013 it signed an option with Cloud Peak Energy, LLC to lease 1.4 billion tons of reservation coal. For the option, Cloud Peak paid the tribe $3.75 million and payments could increase to $10 million by 2018 if they start mining. These kinds of deals give Indians some reason for hope.”

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If, then, this. Except. I would question at least one variable in this argument. If tribes have more say about resource extraction, then will tribes also have more say about environmental concerns? Does this logic give tribes a veto over resource extraction? Would that include approval or rejection of the Missouri River crossing of the Dakota Access Pipeline?

And specifically on coal, if there is a smaller global market for coal, then what’s the point? The International Energy Agency last year reduced its prediction for coal demand (after a decade of growing sales) in part because China’s consumption is dropping sharply. “The coal industry is facing huge pressures, and the main reason is China, but it is not the only reason,” said the agency’s executive director Fatih Birol. “The economic transformation in China and environmental policies worldwide – including the recent climate agreement in Paris – will likely continue to constrain global coal demand.”

That study predicts coal from India and Australia are growing and that the pipeline is already exceeding the capacity. “Probable” new export mining capacities amount to approximately 95 million tonnes per annum. But the current market environment strongly discourages investments as a substantial rebound of coal prices before 2020 is unlikely. Consequently, further postponements or cancellations of projects are expected.” So it’s not a great time to unleash coal as a market force (unless even lower prices are the goal).

If the world is moving past fossil fuel expansion, then the markets will not be there. This will not change in a pro-coal administration.

If there is to be a Secretary McMorris Rodgers, then who would develop and implement policy for Indian Country as the Assistant Secretary for Indian Affairs? There are a lot of talented Republicans who will be making their case in the next few days and weeks. You would hope that people who have served in previous administrations, such as Swimmer, will have a say in what qualities should be sought to match the requirements of the office. Same goes for elected leaders such as Mullin, Rep. Tom Cole, and even those in state governments, such as New Mexico Rep. Sharon Clahchischilliage, a member of the Navajo Nation.

The idea of “if, then, this,” is also important to the opposition party, the Democrats.

McMorris Rodgers must give up her congressional seat. And already there are three candidates. But former Colville Chairman Joe Pakootas said he will not run in a special election. He’s now chief executive of Spokane Tribal Enterprises.

But there are other ballot possibilities. Minnesota Rep. Keith Ellison is a candidate to chair the Democratic National Committee. If he were to win that job, then he has said he would give up his seat in Congress. Already on Twitter there is speculation that the best candidate for the House seat would be Minnesota Rep. Peggy Flanagan, White Earth Band of Ojibwe.

If, then, this.

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

Reposting or reprinting this column? Please credit: Mark Trahant / TrahantReports.com