A year after passage of national health care reform with the Patient Protection and Affordable Care Act (ACA or “Act”), the entire Act, including the many Indian-specific provisions within, is in danger of being taken away. This is why 349 tribes, either directly or through a tribal organization, signed on to a friend of the court brief filed this month in federal court which argues that these provisions are separate from other provisions in the Act and should stand on their own even if the controversial individual mandate provision is held to be unconstitutional. Many tribes have already implemented these new authorities to address critically important health care needs of Indian people.
Judge’s Improper Departure from Supreme Court Precedent
Federal district courts in Virginia and Florida held the “individual mandate” to be unconstitutional, but Judge Vinson in the Florida case took a huge step beyond that. In a January 31, 2011, decision, he not only ruled that the “individual mandate” was unconstitutional, he went on to declare the entire ACA unconstitutional. Judge Vinson reasoned that the Act was finely crafted by Congress and that if the individual mandate must be removed because it is unconstitutional the entire statute cannot function as originally designed, so the entire Act must be struck down. In contrast, the normal rule, based on decades of established Supreme Court precedent, is that when a court finds a portion of a statue unconstitutional, they have an obligation to preserve as a much of a statute as can be preserved, by separating and saving those portions that are practically and legally independent.
The tribal amicus brief argues that the Indian-specific provisions, including the permanent reauthorization of the Indian Health Care Improvement Act (IHCIA), have a separate history from the individual mandate provision, that they involve legally independent rights and obligations related solely to Indian tribes and Indian people and should remain valid if the individual mandate is severed from the ACA. In fact, the IHCIA component was added at the last minute to the bill that became the ACA because it was a moving legislative vehicle, not because it was related to the “individual mandate” component.
A Major Setback
If the Indian-specific provisions sink with other sections of the health care reform ship, Indian Country would suffer a major setback. The IHCIA is critically important legislation that helps address chronic health disparities in Indian country. Tribes worked tirelessly for ten years to enact these provisions. If the entire Act is held to be unconstitutional, tribes will need to start the lobbying process again, losing valuable time and money. More importantly this would delay the implementation of the vital programs and services that these provisions authorize in Indian country. Such reforms include enhanced authorities to recruit/retain health care professionals to overcome high vacancy rates, comprehensive behavioral health initiatives, and expressed authority to operate modern methods of health care delivery such as long-term care and home- and community-based care, among others.
Tribes Already Taking Advantage of the New Reforms
Many tribes and tribal organizations are already taking advantage of these Indian specific provisions and have included them in agreements with the Indian Health Service. For example, the Maniilaq Association, a large tribal organization in rural Alaska, has incorporated into its agreement several provisions that expand its authority to provide both home and facility based long-term care programs. This expanded authority is critical for Maniilaq as it readies to open a new long-term care center that will provide desperately needed services to the elder population in the region. The Seminole Tribe of Florida has also included a number of these new provisions in its agreements with IHS. With these new provisions the Tribe has established a comprehensive program to protect children and preserve families that involves coordinating medical and mental health services with support from education, social services, counseling, and other tribal and non-tribal services. The Houlton Band of Maliseet Indians of Maine have been able to hire a much needed physician because of a change of the law that allows tribes to hire physicians licensed anywhere in the United States just like the Indian Health Service.
The Strong Voice of Indian Country
It is expected that the Supreme Court will ultimately decide if the individual mandate is constitutional. It is important for tribes to ensure that the courts that are wrestling with these questions understand clearly the independent nature of the Indian-specific health care provisions and urge that they be upheld regardless of what happens to the individual mandate provisions. The recently filed tribal amicus brief reflects the unqualified unity of tribes on these questions. We hope that the Courts are listening.
Geoff Strommer is the managing partner of the Portland, Oregon, office of Hobbs, Straus, Dean & Walker. Geoff headed up the effort to file an amicus brief on behalf of the National Indian Health Board and many tribes in State of Florida, et al., v. HHS.