Native Sun News: IHCIA at stake in Supreme Court ruling

Thursday, April 12, 2012  

The following story was written and reported by Jesse Abernathy, Native Sun News Editor. All content © Native Sun News.

WASHINGTON, D.C. – Just over two years after President Barack Obama signed the Patient Protection and Affordable Care Act into law, the much-maligned piece of health care legislation continues to cause polarizing sparks to fly among the right and left wings of American politics – and everywhere in between.

Virtually forgotten in the mostly red, white and blue crossfire are Native Americans and their collective vested interest in the federal statute in the form of the Indian Health Care Improvement Act (IHCIA), which was tacked on primarily to gain permanent reauthorization of the now-secondary act.

The IHCIA authorizes health care services for American Indians and Alaska Natives through Indian Health Service. It was originally approved by the U.S. Congress in 1976 and was last reauthorized in 2000.

In addition to making the reauthorization of the IHCIA perpetual, the Affordable Care Act authorizes new programs within IHS in an effort to ensure service is better equipped to “meet its mission to raise the health status of American Indians and Alaska Natives to the highest level,” according to information contained on the HealthCare.gov website.

However, with the continuing challenge to Obama’s sweeping health care reform law by 26 states, including South Dakota, on the merits of its constitutionality, the just-as-monumental IHCIA is also now in jeopardy of being legally struck down by the U.S. Supreme Court.

At the heart of the largely Republican backlash is the so-called individual mandate of the ACA, a provision that requires many individuals to purchase health insurance by 2014 and threatens punishment for those who don’t. Also in question is whether the individual mandate, if indeed unconstitutional, is severable from the rest of the act and, if not, whether the entire law should be invalidated.

Opponents of the act say that Congress does not have the authority or right to force individuals to purchase services – such as health care insurance – they may not need or want.

The individual mandate is spelled out in Section 1501 of the act, which is officially known as the Minimal Essential Coverage Provision. Failure to comply with the provision will result in a financial penalty enforced under the Internal Revenue Code.

The lawsuit was initially jointly filed by the attorneys general for 13 states in U.S. District Court in Pensacola, Fla., almost immediately after the bill was signed by the president on March 23, 2010. In the wake of former Gov. Mike Rounds’ initial decision to follow suit, South Dakota – led by Gov. Dennis Daugaard, who was elected after the bill became law, and state Attorney General Marty Jackley, who was appointed to the post just six months before enactment of the bill – joined the fray in April of 2011, following a federal judge’s ruling in January of that year that Congress did not have the authority to implement certain parts of the act.

As reported by The New York Times subsequent to the ruling, Judge Roger Vinson of U.S. District Court in Pensacola became the second federal judge to conclude that the insurance requirement – a major component of the ACA – was so “inextricably bound” to other provisions of the act that its unconstitutionality required the invalidation of the entire law.

“The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,” Vinson wrote in handing down his ruling.

Vinson’s finding came on the heels of U.S. District Court Judge Henry E. Hudson’s concurrent precedential finding that the individual mandate clause of the ACA is unconstitutional. Hudson, who presides over the Eastern District of Virginia in Richmond, handed down his ruling in December 2010.


Many constitutional scholars said at the time that these challenges were mostly for political purposes as the health care law was approved by a Democrat-led U.S. House of Representatives and a U.S. Senate with a Democrat-favorable edge. Most Republican leaders contend they were never consulted on the law by Democratic leaders prior to its passage.

At the end of last month, the constitutionality of the ACA was intensely debated over a three-day period at the U.S. Supreme Court. A total of six hours of oral arguments from attorneys for both sides of the complexity-laden issue were presented to the high court’s nine justices, with a final decision on Obama’s health care overhaul more than likely made in under an hour on March 30, according to a recent news report by The Associated Press.

The high court’s final ruling, however, will not be made public until June.

At a White House press conference on April 2, Obama addressed the act’s constitutionality challenge by states, apparently sending many conservative Republicans – as well as some conservative Democrats – into further political turmoil.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said.

In response to states’ challenge to the ACA, tribes and tribal organizations from across the nation collaborated to have amici curiae, or “friend of the courts,” briefs filed on their behalf to protect and uphold the legality and integrity of the IHCIA addendum. The en masse amicus brief was filed in January by the national law firm of Hobbs, Straus, Dean & Walker LLP. At least 449 tribes and tribal organizations contend that the IHCIA, at least, is constitutional.

“The IHCIA amendments were developed over a period of ten years in a separate legislative process from the ACA,” the law team explains in the brief. “In order to escape a legislative log jam, the Indian-specific provisions were put into the Senate’s health care reform bill that became the ACA because it was a moving legislative vehicle. They were not part of or related to the minimum coverage component or other integral pieces of the general health care reform fabric.”

Rapid City-based Great Plains Tribal Chairman’s Association, a nonprofit organization which serves as a political, social and health advocate for Great Plains tribes, is one of the parties represented in the amicus brief.

“The tribal leaders of GPTCA were heavily involved in the ACA as it wound its way through Congress for final passage and was signed into law on March 23, 2010,” GPTCA Executive Director A. Gay Kingman said in an email to Native Sun News at the end of March. “In the last few months of the congressional debate in 2010, in order to also pass the Indian Health Care improvement Act, it was incorporated into the overall ACA. One of the primary reasons GPTCA entered into the lawsuit was to protect our Indian Health Care Improvement Act and to say that it is constitutional.”

“The states argue ‘The (Supreme) Court should hold the Act invalid in its entirety,’” she said. “It is unacceptable and an insult to the 16 tribes of GPTCA that the states have taken this action.”

Kingman, a member of the Cheyenne River Sioux Tribe, said South Dakota’s governor, Dennis Daugaard, and attorney general, Marty Jackley, as well as North Dakota’s governor, Jack Dalrymple, and attorney general, Wayne Stenehjem, should stand up for the tribes in their respective states as Indian health care is a right signed for in treaties and a large part of the economies of both states.

“Certainly, the governors have knowledge of the sovereign tribes in North and South Dakota and the government-to-government relationship," Kingman said.

In an email to NSN, Daugaard’s press secretary, Joe Kafka, said questions for the governor about the ACA and interconnected IHCIA “might be better for former Gov. Rounds since the lawsuit was filed during his time in office, and he made the decision.”

A second request for comments made to Daugaard’s office was responded to by Tony Venhuizen, director of policy and communications.

“The decision to join this law suit was made by Governor Rounds and Attorney General Jackley, and they conferred with people at that time,” he said in an email. “Governor Daugaard supports the state’s continued participation.”

“Many of the challenges facing healthcare for tribal members stems from the lack of adequate federal funding for the Indian Health Service,” said Venhuizen.

According to Jackley, South Dakota’s tribes have been apprised of the state’s participation in the ongoing litigation since before its initial engagement.

“I have had several discussions with Tribal members – both before and after joining the lawsuit – regarding the state’s involvement,” Jackley said in an email correspondence. “I take Tribal input very serious, and have meetings scheduled with the Pine Ridge, Cheyenne River and Rosebud Tribal authorities over the next 8 weeks to discuss and listen to Tribal concerns over a variety of issues.”

“Many of South Dakota’s Tribal members receive medical care through the IHS system and would therefore be unaffected by the lawsuit outcome over the individual mandate or the Medicaid expansion,” he said. “The main concern expressed to me from Tribal members is the adverse effect that the Act itself may have on nursing care. That remains disputed, as with many issues in the 2,700-page Act, but a concern that warrants more discussion than occurred during the passage of the Act.”

The ACA also expands Medicaid, or the Title XIX health care program, eligibility to all adults under 65 years of age with incomes up to 133 percent of the federal poverty level, which covers individuals earning approximately $15,000 annually or a family of four with a combined annual income slightly above $30,000. The federal-state entitlement program covers the costs of medical services for low-income and disabled, or differently abled, individuals.

“Overall, I believe that improving health care is too important to build on an unconstitutional foundation using a process that failed to respect individual rights,” Jackley continued. “Health care reform should arise from a process that includes meaningful input from the States, as well as our Tribes, rather than the extremely political process that gave rise to the 2700-page Act. While I am encouraged by the tone of the arguments and concerns expressed by several (Supreme Court) Justices that the Congress may have gone too far, I respect the difficult task that the Justices have in defining the limitations the Constitution places on the Congress.”

However, Kingman told NSN on April 6 that what really bothers her is that most states, including South and North Dakota, didn’t separate the IHCIA from the ACA prior to filing or joining the lawsuit, leaving the IHCIA just as vulnerable as the ACA before the Supreme Court.

“But as I understand it, there were a couple of questions by the justices on Indian health care that were addressed during the arguments on the case. The Supreme Court’s decision either way will have ramifications,” she said.

“Governor Daugaard says he wants to work with Indian people,” said Kingman, “yet he persists in this case, and so does (Marty Jackley). They had an opportunity, it was at the circuit court level, to say ‘We could protect Indian health care on this,’ but they disregarded that, they just punched ahead and it might be dangerous – but that’s a whole other story.”

Geoffrey Strommer, a partner with Hobbs, Straus, Dean & Walker, has become the lead attorney in the effort to protect Native interests in the ACA.

“The Indian Health Care Improvement Act is the cornerstone statute that sets out different authorizations and goals and programs that Congress has established to provide health care services to Indian people,” Strommer said. “It expired in 2000, so getting it reauthorized has been a priority of Indian country for many years.”

“Now once it was reauthorized as part of the Affordable Care Act, tribes immediately started taking advantage of the new provisions in the statute, and have in fact implemented those new provisions,” he added.

The IHCIA provisions really represent important, progressive developments in the Indian health care system, said Strommer.

“Basically, if the Supreme Court strikes down the Affordable Care Act, the Indian Health Care Improvement Act will be struck down with the rest of the statutes unless (the IHCIA) is found to be severable like we’ve argued in the brief that we filed," he said.

Strommer said the represented tribes and tribal organizations are requesting that if the ACA is found to be unconstitutional, only those provisions deemed to be such should be removed, and IHCIA provisions should remain intact. He explained that Natives in general are less affected by the ACA in comparison to the IHCIA.

“Because of the unique relationship that tribes have with the United States, they are less impacted – they are impacted – but they are less impacted than the average citizen. For example, Indians are specifically excluded from the individual mandates," Strommer said. "In addition to the very specific changes that the Indian Health Care Improvement Act brings to the Indian health care delivery system itself, the balance of the provisions in the Affordable Care Act will help provide more and better services, I think, on average to Indian people.”

Strommer also said the IHCIA works to cover all tribal members, regardless of where they live. “There are provisions in the Indian Health Care Improvement Act that deal with urban Indian programs, where individuals who aren’t on or near reservations who are of Indian descent and are enrolled in Indian tribes can have health care specifically provided to them as Indian people.”

The ACA, overall, is “absolutely, hands down” a good thing for Indian country, according to Strommer.

(Contact Jesse Abernathy at editor@nsweekly.com)