May 31, 2018

ABA is concerned about proposed CMS work requirements

The ABA, tribal leaders, and members of Congress are opposing a Centers for Medicare and Medicaid Services (CMS) decision that the agency will not require states to exempt American Indians and Alaska Natives (AI/AN) from Medicaid work and community engagement requirements announced by CMS in January.

“Failure to approve exemptions threatens the health of U.S citizens and ignores the federal trust relationship between the federal government and tribal nations,” ABA Governmental Affairs Director Thomas M. Susman wrote May 4 to CMS Administrator Seema Verma. The decision, he said, is “counter to well-established doctrine and ABA policy.”

The work and community engagement requirements for Medicaid benefits are part of a CMS policy guidance to help states design demonstration projects under Section 1115 of the Social Security Act for improving Medicaid. The new  requirements would apply to working-age, non-pregnant Medicaid beneficiaries who are eligible for Medicaid on a basis other than disability. Tribal leaders requested that states be required to exempt American Indians and Alaska Natives because of the particularly damaging effects on these groups because they are often residents of rural communities and tribal reservations that have staggering unemployment rates.

In a Jan. 17 letter responding to the tribal leaders’ request, Brian Neale, then director of the Center for Medicaid and CHIP Services, maintained that CMS is constrained by statute and that requiring states to exempt AI/ANs from the work and community engagement requirements raises civil rights concerns.

Disagreeing with the CMS decision, Susman wrote, “CMS’s position conflicts with tribal requests for exemptions and is against the statutory intent of Section 1911 of the Social Security Act, the federal government’s trust responsibility to tribal nations, and Department of Health and Human Services (HHS) and CMS’s past approval of Indian-specific provisions and administration of the trust responsibility.” He explained that there is longstanding legal precedent that tribes are sovereign entities, and the Constitution recognizes this underlying political relationship in creation of the Indian affairs powers. Thus, allowing these exemptions does not constitute a racial preference, he emphasized.

Susman said that access to quality health care calls for the elimination of barriers through expansion and improvement. Work and community engagement requirements for AI/ANs, he said, would “limit rather than expand and improve coverage and are counter to congressional intent.”

A bipartisan group of senators – including Senate Minority Leader Chuck Schumer (D-N.Y.) and Sen. Tom Udall (D-N.M.), vice chairman of the Senate Committee on Indian Affairs − also expressed concerns and requested additional information about the CMS views on AI/AN Medicaid enrollment protections. The senators noted that 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/AAs nationwide have access to vital medical care. 

Back to the May 2018 Washington Letter