Lawmakers Eye Employer Mandate Exemption for Tribes

Via CQ Roll Call

Lawmakers from areas where people get medical care through the Indian Health Service are pressuring their congressional colleagues to exempt Indian tribes from the federal health law’s employer mandate.

Rep. Kristi Noem, R-S.D., testified during a House Ways and Means Committee hearing last week about the bill (HR 3080) she introduced last year. She said in a statement that removing the requirement was a commonsense solution.

“It’s a bipartisan and bicameral bill that gets rid of a duplicative, unnecessary, and costly regulation on tribal communities who are already struggling with high unemployment and significant economic challenges,” Noem said.

Under the 2010 federal health law (PL 111-148, PL 111-152) employers with 50 or more full-time workers have to provide insurance coverage. Employers who do not comply or provide coverage that meets minimum requirements face a penalty. Tribes have been fighting for years for an exemption. Native Americans and Alaska Natives are already exempt from the individual mandate portion of the health law that requires most people to get coverage.

The employer mandate is “inconsistent with the federal trust responsibility and Indian-specific provisions of the ACA” according to Liz Malerba, director of policy and legislative affairs for the United South and Eastern Tribes in an email. She said that forcing tribal businesses to pay for health insurance when the federal Indian Health Service is supposed to provide free care violates the trust agreement.

“Whether choosing to offer coverage or pay the penalty, many Tribes Nations would have no choice but to divert a significant portion of funding away from essential government functions, diminishing services to their citizens,” Malerba said.

William Kindle, president of the Rosebud Sioux Tribe and Byron Wright, treasurer for the tribe, wrote in a July 2015 letter supporting Noem’s bill that covering the South Dakota group’s 800 employees would cost them as much as $6 million annually.

“This could quite possibly mean dissolution of many of the tribal jobs that do exist on the Rosebud,” they said. “It will also result in a reduction in services of our elders and youth and the imposition of severe limitations on various other social programs.”

Noem’s push comes as lawmakers examine an increased number of troubling reports concerning the Indian Health Service, the agency responsible for providing health care for 2.2 million American Indian and Alaska Native people. One issue is the ongoing Rosebud Hospital emergency room closure from Dec. 5. While IHS has a special agreement to reopen the emergency room by next year, the tribe filed a federal lawsuit against them on April 28 through the U.S. District Court in South Dakota. That same day a scathing Government Accountability Office report criticized IHS for not tracking patient wait times for primary care appointments.

The news led lawmakers on the Senate Indian Affairs Committee to introduce a bill (S 2953) on May 19. That bill calls for doing a variety of things including requiring: tribes to be consulted about certain hires, more GAO reports, and additional whistleblower provisions for IHS employees and ways to beef up staff retention. The measure also would require the Department of Health and Human Services’ Office of Inspector General to investigate IHS patient deaths.

Sen. John Barrasso, R-Wyo., chairman of the Senate Committee on Indian Affairs, said in a news release about the legislation that a “patient-centered culture change at the Indian Health Service is long-overdue.”

“We have heard appalling testimonies of the failures at IHS that are unacceptable and will not be tolerated,” Barrasso said. “We must reform IHS to guarantee that all of Indian Country is receiving high quality medical care.”