Tribes scramble to avoid $1 million in fines under Affordable Care Act

Diabetes patient Jay Littlewolf says he sought medical help for a diabetic ulcer at a Billings hospital after not receiving "adequate health care through the IHS in Lame Deer." He wants reimbursement from the IHS and sought Sen. Jon Tester's assistance.Photo/Larry Mayer, Gazette staff
Diabetes patient Jay Littlewolf says he sought medical help for a diabetic ulcer at a Billings hospital after not receiving “adequate health care through the IHS in Lame Deer.” He wants reimbursement from the IHS and sought Sen. Jon Tester’s assistance.
Photo/Larry Mayer, Gazette staff

By Tom Lutey, The Missoulian

BILLINGS – Montana’s Indian tribes, which until recently thought the Affordable Care Act would pass them by, could face fines exceeding $1 million for not offering insurance to employees.

Beginning in 2016, businesses with 50 or more full-time workers will have to offer at least a minimum amount of health insurance to employees. Those who don’t comply face tax penalties, and that includes tribal governments.

The requirement has been a surprise to tribes, said George Heavy Runner, Blackfeet Insurance Services health and wellness coordinator. As individuals, American Indians have the option of choosing not to follow Affordable Care Act rules. Many assumed tribal governments, which are sovereign, had that same option.

“We thought this was a ship kind of passing us by,” Heavy Runner said. “But it’s not just a ship passing through the night. We have been identified in this legislation, just not where we thought we would be.”

Tax penalties facing the Blackfeet Tribe for not complying could be as high as $1.1 million. Crow Tribal Chairman Darrin Old Coyote said the size of the fee depends on how many people a tribal government employs.

“If we don’t do the mandate, we’re going to be fined for the number of employees we have, and that number could be up to $1.5 million,” Old Coyote said. “We pay federal tax, and our employees pay federal tax and so we’re part of the large employer mandate.”

The tribes can avoid the fees by offering the insurance to their workers. Old Coyote said the Crow have hired a benefits manager to do just that.


The change caught tribes off-guard because American Indians by treaty receive health care via the Indian Health Service on reservations. IHS is much maligned by tribal members for not providing adequate health care and for not covering services by specialists outside the IHS program.

Because IHS is limited, tribal members who work for their government would benefit from having other health care, Old Coyote said. The challenge is having a health care plan to offer by next year.

Suing to get off the employer mandate has already been tried. In February, Wyoming’s Northern Arapaho Tribe failed to convince a federal judge to block the employer mandate. The Northern Arapaho argued that subjecting tribes to the employer mandate was an oversight that overlooked treaty rights related to Indian health care, while also stating that tax credits and benefits granted to Indians under the Affordable Care Act would be denied.

Earlier this month, U.S. Sen. Steve Daines, R-Mont., and U.S. Rep. Ryan Zinke, R-Mont., announced a bill to exempt tribes from the employer mandate. Daines called the mandate a job killer for tribal governments, who wouldn’t hire as many employees if they had to pay significant penalties.

Other sponsors of the bill, such as Republican Sen. John Thune, of South Dakota, said it was unfair to exempt individual tribal members and not exempt tribal governments as well.

However, exempting tribes from the employer mandate won’t help the nagging problems with Indian health care, said a representative for Sen. Jon Tester, D-Mont.

“This bill does nothing to solve the underlying problem, which is crisis-level health disparities among Native Americans,” said Marnee Banks. “If we are serious about increasing access to quality health care in Indian Country, we will expand Medicaid and adequately fund the Indian Health Service.”


IHS spending on Indian patients was $2,741 per person in 2013, according to the National Congress of American Indians, which asserts that IHS is severely underfunded. Medicaid spending, by comparison was $5,841.

The state of Montana is awaiting federal approval of the state’s plan to begin offering Medicaid to Montanans earning up to 138 percent of the federal poverty level.

Medicaid expansion would extend benefits to as many as 11,000 tribal members over the next four years, said Jon Ebelt of Montana’s Department of Public Health and Human Services. The program would benefit tribal health care in general, Ebelt said.

“Medicaid expansion revenue will be critical for building health infrastructure, expanding the workforce, and keeping health care providers in tribal communities,” Ebelt said. “Medicaid revenues will bring new funds to the programs and further investment in the Indian health system infrastructure and workforce. This is an opportunity to provide more health care services, create more jobs and employ more Native Americans in tribal communities.”

Old Coyote said he’s concerned that state benefits representatives won’t be able to clearly explain the expanded Medicaid program to some Crow Indians who speak Crow as their primary language. He’s asked the state to provide a benefits representative who is fluent in Crow.

Ebelt said the state is able to provide translation assistance if necessary and in determining an outreach plan with members of the Indian Health Service at Crow Agency.

Tester Criticizes Indian Health Service Leadership, Calls for Staffing Changes

 "I am disturbed by the number of Area Director positions that are now filled with ‘acting’ Directors."
“I am disturbed by the number of Area Director positions that are now filled with ‘acting’ Directors.”


Rob Capriccioso, 7/29/14, Indian Country Today


Sen. Jon Tester (D-Montana) wants to know why the leadership of the Indian Health Service (IHS) has failed to hire permanent directors in one-third of its regional offices.

Tester, chairman of the Senate Committee on Indian Affairs (SCIA), highlighted his concerns in a letter sent July 24 to Department of Health and Human Services Secretary Sylvia Burwell.

“I write to express my concerns about the unmet needs of the Indian Health Service regarding staffing shortages at all levels of the Agency,” Tester wrote in the letter, which his staff shared with Indian Country Today Media Network. “In particular, I am disturbed by the number of Area Director positions that are now filled with ‘acting’ Directors. It is difficult to understand how the Agency will affect change if it does not have these key leadership positions filled with permanent staff.”

Tester noted to Burwell that of the 12 IHS regions nationwide, four currently have acting area directors, including ones in Billings, Montana, and in Phoenix and Tucson, Arizona.

“These three regions alone represent a significant amount of the IHS service population,” Tester wrote. “The ability of these Regions to deliver quality health care to this population is impacted by the kind of leadership they have, and it would appear to me that the Agency is satisfied with temporary leadership. I can assure you that I am not satisfied.”

Tester asked Burwell to quickly fix this problem. “I urge you to take all necessary measures to fill the vacant Area Director positions,” he wrote. “I also request that you provide a written response detailing what specific actions the Indian Health Service and the Department of Health and Human Services plan to take to remedy the chronic inequitable staffing levels that exist throughout the agency.

“If there are legislative proposals that you believe would allow you to fill these positions more quickly, please feel free to share those as well,” he added.

In a recent interview with ICTMN, Tester discussed his concerns regarding current IHS Director Yvette Roubideaux, and he said that he has asked Burwell to investigate Roubideaux’ leadership.

RELATED: Interview: How Tester’s Sen. Committee on Indian Affairs Will Shake Things Up

“I think there are some communication issues that need to be worked out, and I’ve told [Roubideaux] exactly that,” Tester told ICTMN. “There needs to be a lot better communication between tribes and her.”

Tester said that there are “a lot of Native folks out there who don’t like [Roubideaux],” and he has heard from many of them.

“[T]he Indian Health Service is in tough shape, and there needs to be the leadership there that pushes the envelope and listens to the people on the ground…,” Tester said in the interview.

Tester said that he did not know whether Roubideaux would be re-confirmed to her position by the Senate because there has been consternation on his committee about doing so. Her re-nomination has been pending since April 2013. She has served in the job since 2009.

Sen. Mark Begich (D-Alaska) has been one of Roubideaux’ most vocal critics on the committee.  “I will continue to push against moving her forward because I want to see some more results here,” he told ICTMN in February, saying that he wished for Roubideaux to resolve more contract support settlements with tribes and to be a more effective advocate on budgetary matters.

RELATED: Sen. Begich Speaks Out on Indian & Alaska Native Concerns

Senate staffers of members who sit on the committee have questioned why the White House has continued to support Roubideaux when it is clear that Democrats and many tribal leaders have problems with her leadership.

“It is time for a breath of fresh air at IHS,” said one Senate staffer, who asked to remain anonymous. “Dr. Roubideaux has had her opportunity to serve, and she can be proud of her accomplishments. But she needs to see the writing on the wall. It’s time to move on.”

Tester wrote in his letter to Burwell that at a SCIA field hearing he held earlier this year in Billings, Montana, he heard testimony that “revealed the challenges associated with lack of leadership at the top levels of the agency, including ineffective communication, lack of a strategic vision, uncertainty of purpose, and low employee morale.”

“[T]hese problems directly affect the quality of care that American Indians and Alaska Natives receive and more work must be done to resolve these issues,” Tester wrote. “The federal government must do more to ensure that we are living up to our treaty and trust responsibilities to our first Americans.”



DOI Announces $3.2 Million in Grant Awards For 21 Tribal Energy and Mineral Development Projects

Montana reservations
Montana reservations

By Transmission & Distribution World Magazine

Secretary of the Interior Sally Jewell has announced that $3.2 million has been awarded to 21 tribal projects to assist in developing energy and mineral resources, including $655,000 to the Crow Tribe to advance a hydroelectric project that will provide low-cost clean power to tribal members and encourage business on Crow lands.

Secretary Jewell, who serves as Chair of the White House Council on Native American Affairs, announced the grants during a visit to the Crow Reservation in southeastern Montana. Jewell was joined by Senator Jon Tester, the new chairman of the Senate Indian Affairs Committee, and Principal Deputy Assistant Secretary for Indian Affairs Larry Roberts.

Jewell is making a three-day visit to Montana, meeting with tribal and business leaders, ranchers, hunters and anglers and other stakeholder groups to discuss the economic value of public lands to local communities, the importance of the Land and Water Conservation Fund in expanding access to hunting and fishing areas, and public-private partnerships that protect public lands, such as the Blackfoot Challenge for the southern part of the Crown of the Continent ecosystem.

The $655,000 grant to the Crow Tribe will allow completion of all technical, environmental, engineering and economic analyses required for an 8 to 12 megawatt hydroelectric project at the Yellowtail Afterbay Dam on the Crow Reservation. This will allow the Tribe to seek power purchase agreements and financing to build the facility, which will provide electricity to its members and invite industry to the reservation with the certainty of reliable, sustainable and clean low-cost power. The project is also expected to improve the Big Horn River’s downstream fishery by reducing excessive nitrogen and oxygen levels.

In 2009, Senator Tester introduced and then successfully helped pass the Crow Tribe Water Settlement Act that authorized the Crow to develop hydropower at the dam.

As Chair of the White House Council on Native American Affairs, Secretary Jewell leads a comprehensive Federal initiative to work more collaboratively and effectively with Tribes to advance their economic and social priorities. Informed by consultation with the Tribes and reflective of tribal priorities, the Interior Department’s FY2015 budget requests $2.6 billion for Indian Affairs, $33.6 million above the 2014 enacted level, to sustain the President’s commitment and honor Interior’s trust responsibilities to the 566 federally recognized American Indian and Alaska Native Tribes.

Recognizing this commitment to tribal self-governance and self-determination, the budget fully funds contract support costs that Tribes incur as managers of the programs serving Native Americans.

A full list of the 21 projects receiving grant awards for energy and mineral development is available here and includes six for mineral extraction, two for oil and gas production and 13 for renewable energy, including wind, hydropower, geothermal and biomass proposals.

Funding for construction of the Crow hydropower project was authorized in the Crow Water Rights Settlement that President Obama signed on Dec. 8, 2010. In March 2011 Crow tribal members voted to ratify the Settlement legislation and the Crow Tribe-Montana Water Rights Compact. The Settlement legislation provided the Tribe with the authority to develop hydropower at Yellowtail Afterbay Dam along with some funding to assist in the development along with other energy development on the Reservation. The Grant announced today is an additional and needed boost to the Tribe as it works to develop hydropower.

Together, the Settlement Act and the Compact quantified the Tribe’s water rights and authorized funding of $131.8 million for the rehabilitation and improvement of the Crow Irrigation Project and $246.4 million for the design and construction of a Municipal, Rural and Industrial (MR&I) water system to serve numerous reservation communities.

The Crow Reservation is the largest of seven Indian reservations in Montana, encompassing 2.3 million acres and home to 13,000 enrolled Crow tribal members.