Have You Consulted With a Tribe Today?

I recently saw this story.  In a nutshell, one of the goals of the Affordable Care Act (ACA) is to encourage Native Americans to supplement the health care provided by the Indian Health Service (IHS) – which doesn’t cover a lot of procedures and services – by enrolling them in Medicaid or having them purchase a (heavily subsidized) health insurance policy.

This could have a major unintended consequence for state governments.  Why?  It traces back to the 2009 American Recovery and Reinvestment Act (ARRA).  That bill contained a provision, Section 5006(e), that requires states to consult with and solicit advice from any tribes located within their boundaries before they submit a Medicaid state plan amendment likely to directly affect the tribes.  These sorts of consultation requirements are fairly commonplace, though they have seen their fair share of academic criticism over the years.

You can see where I’m going here.  Until the ACA and ARRA, state Medicaid regulators could – more or less – ignore any tribes in their state.  In Colorado, even after ARRA, the only two tribes are located at the southwestern corner of the state, far away from most Medicaid providers, so state plan amendments were unlikely (though not impossible) to have an effect on the tribes.  But as tribe members are encouraged to enroll in Medicaid in increasing numbers, this is almost certain to change.  That’s especially true given the intended usage of the program by Native Americans: The goal is to make off-reservation health care more available to them so that they have access to services not provided by IHS.  One could imagine a situation in which a particular Medicaid service or rate cut that predominately affects one area of the state has a direct effect on tribes hundreds of miles away because that’s the only access their (Medicaid-enrolled) members have to those services.

Does this mean that a state can’t enact those cuts?  No, of course not.  A consultation right doesn’t constitute a veto power.  But state Medicaid agencies (and I’m looking at you Health Care Policy and Financing) would be wise to err on the side of caution and consult with in-state tribes for anything that could even conceivably affect them.