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Bill to exempt tribes from Affordable Care Act mandate draws fire

Tuesday, June 21, 2016

Sinte Gleska University, a tribal college on the Rosebud Sioux Reservation in South Dakota, hosted a job fair in April 2016. Photo from Rosebud Sioux Tribe / Facebook

A bill to exempt tribes from providing health coverage to their employees is moving forward on Capitol Hill amid opposition from Democrats.

The landmark Affordable Care Act requires most Americans to obtain health insurance. In many situations, they can turn to their employers to provide coverage.

The situation in Indian Country is different. Enrolled tribal members are exempt from the insurance mandate because they are eligible for care at the Indian Health Service.

Tribes themselves, however, have been caught off guard by what is known as the large employer mandate. Unless they purchase coverage for their workers -- an undertaking that comes at a significant cost -- they are facing millions of dollars in tax penalties from the Internal Revenue Service.

The Rosebud Sioux Tribe in South Dakota, for example, has indicated it will cost at least $6 million every year to buy coverage for more than 800 employees. Otherwise, the tribe faces a $4.5 million tax penalty.

Indianz.Com SoundCloud: House Committee on Ways and Means June 15 2016

"This will result in massive job cuts, elders and youth programs being closed and it is highly possible that the IRS will seek to take tribal lands as a penalty for tribes not paying fines," Oliver Semans, who sits on his the tribe's health committee, said on Monday, referring to a situation in which the agency seized and auctioned off lands belonging to the Crow Creek Sioux Tribe as part of a tax dispute.

The situation would change with H.R.3080, the Tribal Employment and Jobs Protection Act. The bill exempts tribes, tribal organizations and businesses owned by tribes from the mandate, something that supporters believe will bring the Affordable Care Act in line with the federal government's trust and treaty responsibilities.

"This is a bill that will would allow more people to keep their job and keep them from falling below the poverty line," Rep. Kristi Noem (R-South Dakota), the sponsor of the bill, said at a House Committee on Ways and Means markup on June 15.

The powerful committee approved the bill by a party line vote of 24-13. All Republicans voted in favor of passage but no Democrats supported it.

"We're giving somebody preferential treatment," said Rep. Xavier Becerra (D-California), who hails from California, the state with the largest number of Native Americans, according to the U.S. Census Bureau.

"I'm not sure exactly why we would want to do that," Becerra said.

YouTube: Full Committee Markup of Child Welfare Legislation and 7 Bills to Improve Health Care. The discussion on H.R.3080, the Tribal Employment and Jobs Protection Act, starts at about 2 hours and 22 minutes into the markup.

The bill applies to any tribal organization or tribal business, including those located outside of Indian Country, which Becerra said undermines the goal of promoting employment on reservations. Another Democrat said the exemption would hurt non-Indian employees of tribal "commercial" enterprises, such as gaming facilities.

"About three-quarters of the employees at casinos would fall through the cracks," said Rep. Jim McDermott (D-Washington), citing statistics that show a majority of tribal gaming employees are non-Indians.

McDermott, who was sporting a turquoise colored bolo tie during the markup, is retiring at the end of the current session of Congress. His district includes parts of Seattle, which is home to a large urban Indian population.

The bill itself counts just one Democratic co-sponsor. S.1771, a companion measure in the Senate, has no Democratic co-sponsors at this point.

The lack of Democratic support could pose hurdles for the bill going forward. So far in the 114th Congress, the Republican-controlled House has passed two Indian bills over Democratic objections -- the Tribal Labor Sovereignty Act and the Native American Energy Act -- but neither has been approved in the Senate and both have drawn objections from the Obama administration.

President Barack Obama signed the Affordable Care Act, also known as the Patient Protection and Affordable Care Act, on March 23, 2010. Photo by Pete Souza / White House

Tribes have asked the Department of Treasury for an administrative fix to the large employer mandate or to delay it while Congress debates the issue. Neither suggestion has been accepted, according to Semans, who is a co-founder of Four Directions, a Native voting rights group.

In addition to tribes, the National Congress of American Indians, the National Indian Health Board, the United South and Eastern Tribes and other Indian organizations are supporting the exemption.

President Barack Obama signed the Affordable Care Act into law on March 23, 2010. It includes a permanent reauthorization of the Indian Health Care Improvement Act, which would not be affected by H.R.3080 or S.1771.

In a separate action last week, the House Committee on Ways and Means approved H.R.5452. The confirms that Native Americans who are eligible for IHS care can set up health savings accounts. There was little discussion on the measure during the markup.

House Committee on Ways and Means Documents:
Description of H.R.3080, the Tribal Employment and Jobs Protection Act | Amendment in the Nature of a Substitute to H.R.3080 | Description of Amendment in the Nature of a Substitute to H.R.3080 | Committe Vote on H.R.3080

House Committee on Ways and Means Notice:
Markup of Eight Commonsense Bills (June 15, 2016)