Category Archives: updates on washington legislation

Medicare and Medicaid Funding in Jeopardy

USET and other organization are asking for help lobbying for tribal consultation on the changes to Medicare and Medicaid funding to Indian country.  The rules have changed that leave it to State’s to set work requirements for eligibility for Medicaid funding through the 1115 waiver process.  This could severely impact Indian Health service funding.  Therefore AI/AN Medicaid recipients must be made exempt from these barriers to accessing the health care to which they are entitled, and CMS has a duty to ensure that this occurs as a part of the waiver process. Medicaid currently represents 67% of 3rd party revenue at IHS, and 13% of overall IHS spending.   Tribal organization are advocating that any proposed changes to the administration of Medicaid must be preceded by comprehensive consultation with Tribal Nations. Currently, the 1115 waiver process requires that states engaged in Tribal Consultation prior to submission of 1115 Demonstrations to CMS. CMS must ensure Tribal consultation with Tribal Nations occurs at both the state and federal levels before state waiver applications can proceed.

See USET Letter

 

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Fake News: It happens in Indian Country Too!

No doubt you have heard the news about the CEO and founder of Facebook, Mark Zuckerburg testifying on Capitol Hill, and explaining why he didn’t protect his Facebook subscribers from privacy breaches and those that promote false and fake news.  Well Indian Country is not exempt.  See Washington Post Article:

Well fake news happens about Indian Country too.  An article has been circulating on Facebook in recent weeks you may have seen published on May 5, with the headline, “In Victory for Standing Rock Sioux Tribe, Court Finds That Approval of Dakota Access Pipeline Violated the Law”.  That article was cut and pasted from an article a year ago.  A Vietnamese site claiming to be about Native American affairs has recycled the story to gin up clicks and advertising revenue. For some reason news about the Standing Rock reservation and Native American affairs in general have become a favorite niche of foreign-run Facebook pages and websites. If you see a news report about these topics pop up in your newsfeed, always check if you are looking at an original source before liking, sharing or commenting: it could be you are looking at old news being repackaged and fed back into your news stream by some guy in Macedonia or Kosovo wanting to make a few quick bucks.

Congress springs into action with an omnibus bill, and concerns rise about the 2019 appropriations

 

At the relief of Indian County Congress passes an Omnibus bill in March, holding the course and adding a little money to the Indian Affairs budget.  It was an uncertain, beginning to the year, that saw continuing resolutions, potential government shutdowns, a deal to raise budget caps, and a last-minute veto threat from the President.  At the end the legislation provides $1.3 trillion in omnibus appropriations for the remainder of Fiscal Year (FY) 2018.

 

Congressional appropriators rejected the deep cuts proposed in the President’s FY 2018 Budget Request, including those for federal Indian programs. Some of these provisions include:

  • Bureau of Indian Affairs (BIA): BIA is funded at a total of $3.01 billion, an increase of $203.8 million or 7.1%.
  • Indian Health Service (IHS): IHS is funded at a total of $5.5 billion, an increase of $497.9 million or 10%.
  • Victims of Crime Act (VOCA) Funding: The bill contains a 3% set aside for Tribal Nations within the VOCA fund, or $133 million for the delivery of victim services in Indian Country.
  • Opioid Epidemic: From a total of $1 billion in new grant funding to address the opioid crisis directed at state and Tribal governments, $50 million is set aside for Tribal Nations. In addition, $5 million is set aside for Tribal Nations to provide medication-assisted treatment. Finally, $7.5 million is provided for the BIA’s  Law Enforcement Opioid initiative.

Significant increases:

  • Infrastructure: spending would increase for BIA and IHS construction, BIA road maintenance, and a $100 million competitive grant program is added under Native American Housing Block Grants (NAHBG) in addition to the $655 million provided for the NAHBG formula grants.
  • Road Maintenance: will receive a 14 percent increase to $34.6 million.
  • Restoration of the Tiwahe initiative: at the fiscal year 2017 enacted level.
  • Violence Against Women Act: $2 million to implement both training and specific Tribal court needs, and $13 million to address the needs of Tribes affected by Public Law 83- 280.
  • BIA Construction: would increase by $162 million to $354.1 million, an 84 percent increase.
  • Opioid initiative:5 million for the Bureau of Indian Affairs Law Enforcement.

See Link: Budget Report

An interesting strategy has been proposed this last week to handle 2019 appropriations bills.  Nearly, 16 Republican senators announced a willingness to work through August recess to complete spending bills and confirm more of President Donald Trump’s nominees. Sen. David Perdue of Georgia, who has led the effort, hinted that a letter to Majority Leader Mitch McConnell of Kentucky would be forthcoming. “The Senate should immediately begin work on one or several consolidated appropriations bills, so they can be openly debated and amended accordingly,” the senators wrote. “Our defense priorities are bipartisan, and they should come first.”

That letter signals a willingness by the conservatives to bundle spending bills together, perhaps using the “minibus” strategy in which several regular appropriations measures get combined on the floor. Normally, senators would not want the chamber in session well into August during an election year, with lawmakers eager to be home and meeting with constituents and voters.  The Republicans seem to want to avoid a last minute continuing resolution to keep the government funded past the end of September and they want to confirm a large number of Trump nominations as August approaches. Some of the 77 confirmations that took place by unanimous consent or voice votes as the August recess got underway in 2017 might have happened without a cancellation threat since that’s been the normal practice of the Senate.

These 16 senators, however, believe the threats affected the behavior of Senate Democrats. “Our diligence was rewarded with reason, and that can happen again,” the senators wrote.

See Article

Meanwhile dozens of Indian Country leaders were on Capitol Hill last week to present their budget priorities to key members of Congress before the Appropriations subcommittee on Interior. The testimony from tribes and Indian organization, representing every region of the nation, had a consistent message – Indian Country needs additional funding as part of the federal government’s trust and treaty responsibilities. The panel’s Republican and Democratic leaders, for the large part, have embraced that goal.
After hearing from the tribal witnesses, the House Appropriations subcommittee on Interior will spend the next month or so drafting the Interior appropriations bill. The package is typically released sometime in June, with lawmakers aiming to get it passed before October 1, the start of fiscal year 2019.

Washington Update: Budget, Health Care, and Tribal Energy

 
WASHINGTON LEGISLATIVE UPDATE:  
Budget – Health Care – Special Diabetes Program  and Tribal Energy 

 

On Oct. 5, the House passed a bill for the 2018 budget that lays out the foundation to take advantage of Senate rules for recent tax reform proposals. The Senate allows tax and spending measures to pass with a simple majority. The House budget plan accommodates $203 billion in future spending cuts meant to offset the tax reform’s projected $1.5 trillion increase to the deficit. Meanwhile, budget legislation has gone through committee in the Senate, poised for a floor vote later this month. This bill directly allows a $1.5 trillion deficit increase to be written into tax legislation. Republicans believe that the deficit increase will be offset by economic growth but this conclusion has yet to be thoroughly researched.
The House’s budget will allow $203 billion in spending cuts. These cuts have yet to be finalized and negotiations will likely be stalled by discussion on the pending tax bill. GOP leaders have made a point of prioritizing tax reform and writing the budget to reflect this emphasis. Senate Republicans are skeptical of tax reform proposals like repealing the state and local tax deduction, but are willing to support the budget to move along tax negotiations. The Senate has asked the Energy and Natural Resources Committee to find $1 billion in deficit savings. These savings would likely come from the opening of the Arctic National Wildlife Refuge to fossil fuel extraction. The two budget proposals expect to balance by 2027, mostly through cuts to federal entitlement in future legislation.
The Senate pulled its most recent healthcare reform effort, the Graham-Cassidy proposal, from the voting schedule, due to a lack of support within the party. The legislation would have removed Medicaid expansion, cost-sharing protections, and premium subsidies. The bill also would have transferred federal trust responsibility over Medicaid to the states. On Sept. 29, President Trump signed into law FAA appropriations that included $37.5 million in funding for the Special Diabetes Program through the first quarter of FY2018. Rep. Mullin (R-OK) has introduced a bill, H.R.3917, which will supplement this funding with $112.5 million for the remainder of FY2018 and $150 million for FY2019.
The House Committee on Natural Resources is waiting to vote on H.R. 210, the Native American Energy Act. The Indian Tribal Energy Development and Self-Determination Act Amendments, S.245 (Hoeven R-ND), has passed through committee and has been waiting for a floor vote since May. The two measures work to support tribal energy independence. The House initiative would streamline the land asset appraisal process, support biomass production, and add tribal consent restrictions for Interior rules on energy production. The Senate bill extends to tribes the state and municipality hydroelectric license preference and DOE energy development loans. DOE would allow inter-tribal organizations to qualify for grants and Interior would provide technical assistance with energy resource development. Additionally, Interior would defer to tribal resource agreements and certified tribal energy development organizations for energy-related leases, rights-of-way, and business agreements. See Washington Post Article for further developments

Washington Update: Tax Reform

WHITE HOUSE/GOP ANNOUNCE NEW TAX REFORM PLAN:  STILL UNCERTAIN ON THE MESSAGE AND WHAT IT WILL COSTS.
 
Republicans and the White House announced their tax reform proposal on Sept 27. The reform would create three tax brackets and lower or remove several other taxes, such as corporate income, small business, and estate taxes. A nearly doubled standard deduction would replace most itemized deductions. Trump’s announcement of the Republican-led reform effort was accompanied by House Ways and Means ranking member Sen. Neal’s (D-MA) comments that a bipartisan effort was necessary and that Democrats needed to support the middle class in light of the reform plan’s policies and the President’s promise that the rich will not benefit.
On Sept. 26, President Trump negotiated at the last minute with Democratic leaders to leave the top tax bracket rate negotiable. Despite this cooperation, Democratic leaders were skeptical that their other demands would be met. These conditions included improved child care assistance, which was integrated in the reform plan through an increased Child Tax Credit.
The day after the announcement, Democratic Senators Warren (D-MA) and Schumer (D-NY) criticized the plan as favoring the wealthy and similar to past policies based on trickle down economics. These criticisms drew the President’s ire and prompted him to dismiss the leadership’s goals as unrealistic.  This position is in line with a statement last month signed by congressional Democrats which clearly highlighted the policy stance Democrats would advocate on tax reform.
Paul Ryan (R-WI), Mitch McConnell (R-KY), Senate Finance chairman Orrin Hatch (R-UT), and House Ways and Means chairman Kevin Brady (R-TX) have joined Gary Cohn and Steve Mnuchin of the White House to write the bill. Democratic lawmakers are eager to contribute to the reform proposal but have received mixed reactions to their involvement. While some Republicans have expressed a desire to initiate bipartisan collaboration now, leadership has been cold.
Congressional Republicans, including Rep. Andy Barr (R-KY), have expressed concern over some of the reforms, such as removing state and local tax deductions and lowering the corporate interest deduction. Tensions over “pay-for” provisions in the proposal will also prove to be legislative hurdles. Sen. Corker (R-TN) expressed that any significant increase to the deficit would also hurt the measure. As of Oct. 5, the House passed a budget resolution that would aid the reform effort by providing Senate Republicans with a chance to pass reform with a simple majority through reconciliation.
For tribal interests, the plan has kept the Low Income Housing Tax Credit and tax-exempt debt; both are initiatives that encourage tribal economic development. The reform initiative also includes a five-year period allowing write-offs for depreciable assets. There is opportunity for a tribal pension allowance amid the open possibility of repealing the New Market Tax Credit.
 

WASHINGTON LEGISLATIVE UPDATE: OMNIBUS SPENDING BILL, TAX EXTENDERS, INTERIOR IMPROVEMENT ACT

Vietnam memorial at ChristmasCongress Passes $1.8 Trillion Spending Measure
 
After much debate and wrangling and some say a beaten down Congress on Friday December 18th, 2015 passed a $1.8 trillion package of spending and tax cuts with little rancor.  Majority Leader, Senator Mitch McConnell (R-Ky) had promised there would be no shutdown or default this year. And was quoted as saying “By any objective standard, I think, the Senate is back to work”.  Speaker Ryan was credited with winning a majority of Republicans votes for the huge spending and tax package, although House Democratic Leader Nancy Pelosi (D-CA) insisted that Republicans came on Board only because of a recently added provision to end a 40-year ban on crude oil exports. And, at a recent news conference President Obama said, “we’ve gotten kind of used to last-minute crises and shutdown threats and so forth…this is a messy process that doesn’t satisfy everybody completely, but it’s more typical of American democracy. And I think that Speaker Ryan deserves a role in that”.
Representative Tom Cole (R-Ok) managed much of the floor debate for Republicans and said that all lawmakers could find items to support or oppose in such a huge spending and tax-break package.  As an end result, the period of belt-tightening ended in Washington the spending measure for 2016 provides a $66 billion increase in Federal outlays above previously agreed-upon limits, divided equally between military and nonmilitary programs.  The White House and congressional Democrats said they had thwarted the Republicans’ main policy goals, including efforts to cut off government financing for Planned Parenthood and put restrictions on Syrian and Iraqi refugees, while securing a number of their own priorities, including tax benefits for working Americans and to promote renewable energy.  And Speaker Ryan, who was the former Chairman of the tax-writing Ways and Means Committee pushed through the major tax-break package that many Democrats opposed.
The House approved the Tax Breaks on Thursday Dec. 17th and the spending measure on Friday with a vote of 316 to 113, with 150 Republicans and 166 Democrats supporting the bill.   The Senate then voted to end the debate on the overall legislation, dispensed with several procedural steps, and approved the package, 65 to 33.
Spending Bill provisions impacting Tribal Programs:
  • For the Indian Health Service (IHS), the omnibus provides a total appropriation of $4.8 billion, a 3.6% increase over FY 2015 levels. This includes flat funding at $914 million for Purchased/Referred Care (formerly Contract Health Services) and $523 for Facilities, a $63 million increase. It also provides an additional $10 million to alcohol and substance abuse for a focus on Tribal youth, and an increase of $12.9 million for staffing.
  • The Bureau of Indian Affairs (BIA) is funded at a total of $2.8 billion, a 7.5% increase over FY 2015 enacted. This includes $2.26 billion for the Operation of Indian Programs, a $161 million reduction compared to FY 2015, as well as $852 million for the Bureau of Indian Education. Notably, the bill also contains $138 million for school construction, an increase of $63.7 million, which should complete the 2004 replacement school construction list.
  • For Contract Support Costs (CSC) at both BIA and IHS, the omnibus creates an indefinite appropriation using the language, “such sums as may be necessary,” rather than specific amounts. Tribes and Tribal organizations advocated for the CSC line item to be made mandatory on a permanent, indefinite basis in order to stabilize funding, protect funding appropriated to other line items, and help to avoid funding shortfalls. Though the omnibus does not make CSC mandatory, providing for an indefinite appropriation will allow the agencies to pay CSC in full, as required by the Supreme Court decision in Salazar v. Ramah Navajo Chapter, as well as protect other line items in the budget and avoid shortfalls.
  • In addition to the omnibus, Congress also passed a $680 million package to extend a number of critical tax provisions that have been expired since the end of 2014. Each of these tax credits is designed to encourage increased investment in projects within Indian Country, as well as increased jobs for Native people and indicate that greater tax reform is around the corner.  These include:
    • Indian Employment Tax Credit. Extended until December 31, 2016, this provides a tax credit for private employers of tribal members and their spouses in Indian country. On-reservation unemployment rates and poverty rates are disproportionately high, and this tax credit encourages on-reservation employers to invest in the Native workforce. Without the certainty of permanency, and with effectively only one year of guaranteed credits at this point, employers have less incentive to invest in Native workers.
    • Accelerated Depreciation for Business Property on Indian Reservations. Extended until December 31, 2016 this provision allows businesses located on Indian land to claim a tax credit for certain property and infrastructure investments at sooner than they would be able to if located off-reservation. Because this credit is effectively only guaranteed through the end of 2016, there is less incentive for businesses to relocate onto Indian lands and spur on-reservation economic growth.
    • Indian Coal Production Tax Credit. Extended until December 31, 2016, this provides a tax credit to producers of coal on Indian land. This credit is vital to draw coal businesses to Indian country, where many tribes lack the capacity to produce and export their coal in-house. Again, because coal businesses are effectively only guaranteed this credit through the end of 2016, there is less incentive to build up the infrastructure and workforce necessary.
    • New Markets Tax Credit. Extended until December 31, 2019, this program provides tax credits to businesses investing in low-income workforce’s and communities, including-but not limited to-Native communities.
    1. Low Income Housing Credit.  Permanently extended, this provision allows the 9-percent minimum credit rate for the low-income housing tax credit for non-Federally subsidized new buildings. Though not limited to tribes, low income housing projects on Indian lands will now be more predictable and attractive to private investors.
Senate Committee on Indian Affairs Passes S. 1879, 

the Interior Improvement Act 

On Wednesday, December 2, 2015 the Senate Committee on Indian Affairs (SCIA) passed the Interior Improvement Act, S. 1879 that was introduced by Chairman John Barrasso (R-Wy) in July of this year. The bill improves the Department of Interior’s trust land acquisition process by codifying and streamlining portions of the process, reaffirming the Secretary’s authority to take land into trust for all federally recognized tribes and reaffirms the statutes of lands already taken into trust. The Chairman added manager’s amendments that were technical in nature and did not stray far for the original legislation.  Assistant Secretary Washburn has supported the legislation saying at most it codifies existing practices at the department, and does not disrupt the current land into trust review and will expedite the process for many trust lands applications.  This bill now sets the mark for legislation in the next Congress, and indicates that Congressional movement to fix the US Supreme Court Decision (Carcieri v. Salazar in 2009) is closer at hand.
 
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