Battle to Implement Reform Needs More Attention

Indian Health is not included in legislative or legal challenges to health care reform law

May 19, 2010 -- Passing health care reform was easy. Sure it was a legislative mess: It was too slow, too fast, too many pages and too short on specifics, too open to the influence of special interest lobbies – and too secretive, partly because the language was so complicated and difficult to translate into a simple narrative. Yet enacting health care reform was easy. Executing on real reform, now that’s a challenge.

It’s the same in Indian Country. The Indian Health Care Improvement Act is included as a section of the Patient Protection and Affordable Care Act. But this is only one item to check off on a long to do list, not the goal itself. The next steps are just as important as the law itself: Producing regulations that put the policy choices into action, funding by Congress to make the law work, and execution of the law by the employees of the Indian Health Service, the federal government, as well as by tribes and provider organizations.

The irony of this is how the media covers this issue. The fight over the law was news. It was a big story by any measure. However the equally important debate about health care regulations and the government’s execution of the law will probably get about one-tenth of the coverage. It’s harder to explain.

But one contest that is getting attention: The litigation by 20 states and other groups challenging the health care reform law. Washington Attorney General Rob McKenna recently posted this explanation about why he’s pressing the case: First, the “unprecedented requirement that individuals lacking health insurance must purchase private insurance or face a financial penalty” and, second, because reform represents a “massive expansion of the Medicaid program, requiring states to spend billions more on this program at a time when state budgets are already in crisis.”

That second point, it seems to me, is silly. No state is required to participate in Medicaid. And, if the burden is that great, then all a state would have to do would be to withdraw from the program. Indeed, the conservative Heritage Foundation said states could save $1 trillion by dropping Medicaid. But the states would have to do something else to provide its citizens with a health safety net – and that be costly too. Nonetheless, this idea, if taken to its logical conclusion, would require substantial changes in the Indian health system (because state rules govern the Medicaid process, even though the federal government pays for American Indians and Alaska Natives).

But it’s also important to clarify what the states’ litigation is not about. As McKenna wrote: “This suit will not ‘overturn’ or ‘repeal’ the new health care reform legislation. In fact, this lawsuit will not affect most provisions in the 2,400-page bill, including several of the provisions of the federal health care legislation scheduled to take effect this year.”

In other words: Most of the bill is off limits. That includes the insurance provisions prohibiting denial of coverage over pre-existing conditions, expanding rebates for seniors’ drug coverage, and the inclusion of young adults on their parents’ plans. I would add that Indian Health Care Improvement Act to this off-limit list. It would be nearly impossible to challenge that provision legally because Congress has clear constitutional authority over Indian affairs.

If the litigation won’t overturn health care reform, could Congress do that? Last week the web site Politico reported Republicans promising that course.  “We're going to do everything we can to make sure this law never, ever goes into effect,” Rep. John Boehner said at a news conference. “We're going to rip out every possible mandate and increase, tax increase, that they’ve got contained in this bill. And yes, I understand that President Obama’s going to be in office.”

Boehner’s statement is telling. The Republicans will focus on the mandates and tax increases – not the entire bill. The Indian Health Care Improvement Act is probably, even in that Republican scenario, off limits. But it’s also interesting to think about Boehner’s understanding about President Obama being in office – to repeal the law (or any part of that) Congress would have to sustain a veto. That not only means winning enough seats in November to become the majority party, but also enough for a two-thirds margin. The problem with that logic is math: there are not enough Senate seats up for election to produce that many Republican votes. This is an empty promise – at least as long as Obama is president.

The Obama administration is moving quickly to implement health care reform by writing regulation at lightning speed. And that includes implementation of the Indian Health Care Improvement Act.

Remember: Passing health care reform was easy. Now the real fun begins.

Mark Trahant is a Kaiser Media Fellow examining the Indian Health Service and its relevance to the national health care reform debate. He is a member of Idaho’s Shoshone-Bannock Tribes. Comment at


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