Health | Opinion

Mark Trahant: Supreme Court ruling changes health care debate

Thursday, June 28, 2012

The entire debate over “ObamaCare” is now fundamentally different. It’s the law of the land that has been upheld by the Supreme Court. And, deep in the pages of the Affordable Care Act, the Indian Health Care Improvement Act, is permanent. It no longer requires going back to Congress every few years and arguing for reauthorization.

It’s important to note that the Supreme Court’s ruling Thursday does not end the debate over health care reform. There are still fights to be had over the law itself, funding, and the where we go from here.

We should remember that this country (and much of the developed world) has a demographic imbalance that is driving up the cost of health care. The entire federal budget deficit can be wiped out, if we can figure out how to deliver health care at a lower cost. The Affordable Care Act is a small step (not a solution) in that direction. The smartest way to control cost is to also improve the quality. These two elements go hand in hand.

Of course improving quality of health care is what the Indian Health Care Improvement Act is all about. To my mind: It’s one of the most successful pieces of legislation ever enacted. If you look at the health care disparity of American Indians and Alaska Natives before the law was passed there was a 24-year gap between life expectancy for Native Americans and the general population. Now that difference is only about 2-and-a half years (depending on where you live). There has been significant progress in most Indian health statistics since 1976.

But despite the law’s success, Congress did not have the votes to reenact the Indian Health Care Improvement Act, so it was folded into the Affordable Care Act by House committee chairmen, George Miller, D-Calif., and Nick Rahall, D-WV. It was a strategy many thought risky at the time. But it paid off.

“The Indian Health Care Improvement Act contains provisions that will help to improve health care on the Navajo Nation. I'm relieved to see that the provisions remain undisturbed,” Navajo Nation Vice President Rex Lee Jim said in a news release.

The Indian health system -- the federally-operated Indian Health Service and the tribal and independently-run facilities -- should continue to focus on improving quality and prevention. Yes, there will still be fights over money. The Indian health system is funded (read this: underfunded) by congressional appropriations. That is Congress must vote to spend the money every year; it’s not automatic.

But the Affordable Care Act opens up new streams for automatic funding, money that flows from Medicaid into the Indian health system. The law expands Medicaid eligibility, both for individuals and for families, making it easier for the Indian health system to get paid. The problem here is that there are 50 sets of rules for Medicaid because it’s a federal, state partnership. This may be the most complicated portion of Thursday’s ruling for Indian Country.

The Court ruled that the federal government has limited authority here. It may “induce” states to accept the terms of the Medicaid expansion, but it says states may choose to reject expansion. If that happens, the federal government cannot take away current Medicaid funding. This is a problem because state budgets are under so much stress.

But while Indian Country’s Medicaid funding goes through state rules, the money is ultimately federal. That means this part of the ruling might open up new solutions: Such as expanding tribal authority to regulate Medicaid (I have suggested a Medicaid, 51st state idea in the past.)

Thursday’s ruling opens up serious questions about Medicaid. “As a practical matter,” the court said, “states may now choose to reject the expansion; that is the whole point. But that does not mean all or even any will. Some states may indeed decline to participate, either because they are unsure they will be able to afford their share of the new funding obligations, or because they are unwilling to commit the resources necessary to support the expansion. Other States, however, may voluntarily sign up, finding the idea of expanding Medicaid coverage attractive, particularly given the level of federal funding the Act offers at the outset.”

But the resolution of these significant concerns is now on a different plane. The Affordable Care Act is the law. Any change of that requires extraordinary legislative consensus -- something that’s not in our body politic right now. Republican presidential candidate Mitt Romney said he would repeal the law on day one. But what does that mean? Ignore portions, and, if so, which portions? Would he continue to operate those programs already operated (such as the Indian Health Care Improvement Act)? What is the authority to suspend contracts with tribes running a program under current law?

The legislative repeal will not be easy either. Any change in the law requires passage in both the House and Senate. In the Senate that means rounding up a super majority of 60 votes. (They could focus on the tax issues with 50 votes, but that would leave in place the Medicaid expansion, the most important part of the law.)

As I said the debate continues. But for now American Indian and Alaska Native people today is one to celebrate what was accomplished; it’s a big win.

Mark Trahant is a writer, speaker and Twitter poet. He is a member of the Shoshone-Bannock Tribes and lives in Fort Hall, Idaho. Trahant’s new book, “The Last Great Battle of the Indian Wars,” is the story of Sen. Henry Jackson and Forrest Gerard.

Supreme Court Decision:
NFIB v. Sebelius (June 28, 2012)