Draft Letters for Tribal Leaders regarding HB 376 Effort

From the Center on Law and Poverty:

 

 

Good afternoon, Governors and Presidents:

Attached is the draft of a letter to Senator John Arthur Smith, Chairman of the Senate Finance Committee, who permitted HB 376 to die by refusing to let it be heard by the Senate Finance Committee.  Some of you were very close to the proceedings and attended hearings and already know what took place.  It is important for all of us to know.  Even though your healthcare staff may not have been able to attend hearings, they followed the proceedings closely and I received questions about what took place and what could be done.  In my view, the action taken by Senator Smith was unnecessary and not helpful.  The group of workers who formed the regular hearings’ corps were not daunted by a Finance Committee hearing, the last hurdle on the way to the Senate floor where there was no question we would prevail.

 

The behavior of Senator Smith’s policy analyst Michael Burkhart was inexcusable and not expected from a person in his position and a former Secretary of the NM Department of Health.  Also attached is the draft of a letter sent to Senator Sanchez by Representative Madalena in his efforts to have the bill heard in Finance and brought to the Senate floor and which provides a fuller picture of the problems encountered.  A call has been placed to Representative Madalena to inquire about a decision to re-introduce the bill in the next legislative session.  We, at the Center, are again ready to work with you and your staff to assure that the bill is enacted into law.

 

We hope that you will send a letter to Senator Smith or join together in one document.  I would be willing to coordinate a joint letter, if that is what you think would be most meaningful.  The protection and support for the CMS decision that could have been gained through passage of HB 376 are significant.  But as Regis Pecos pointed out, its failure to pass is also significant.  Senator Smith’s action illustrates and underscores the problems tribal officials and workers have conveyed to CMS personnel in consultations related to the 1115 Waiver and Centennial Care.  Whatever choice you make regarding the letter, would you please send me a copy of any response received from Senator Smith.  The letters would be helpful to all of us in future work with the legislature as we join together to assure that the needs of our people are assisted.

 

Best regards,

Evelyn Blanchard

 

 

DRAFT OF LETTER TO SENATOR SMITH FOR TRIBAL LEADERS:

 

Senator John Arthur Smith
Box 998
Deming, New Mexico 88031

 

Dear Senator Smith:

 

We are joined together to express our deep disappointment in the decision you made to deny passage of House Bill 376 in the recent legislative session and to seek an explanation for your action.  House Bill 376 proposed to affirm the recent decision by the Centers on Medicare and Medicaid Services’ (CMS) to deny the state’s petition to force our people into managed care.  In doing so, the bill would have affirmed important protections for our people and support of the development of healthcare facilities and resources in our homelands.

 

The bill had unusually strong support from every New Mexico tribe.  Large numbers of tribal representatives attended every legislative hearing.  The bill also had unusually strong support in the legislature.  Before you denied it a hearing, either in your committee or by releasing it to be heard on the Senate floor, the bill had passed through the House Committee on Health, Government and Indian Affairs by a vote of 9 to 2, the House Judiciary Committee unanimously, and then the House by a vote of 60 to 7.  As its journey continued, the bill passed the Senate Indian and Cultural Affairs Committee and the Senate Judiciary Committee unanimously and was referred to you for a hearing on March 10th.  It is our understanding that subsequently, the House Majority Leader, the Senate Majority Leader, the bill’s sponsor and numerous supporters of the bill approached both you and your committee analyst, Mr. Michael Burkhart, to urge a hearing.  You failed to grant it a hearing.  We would like to know why.

 

It has been reported to us that Mr. Michael Burkhart informed Representative Roger Madalena that he would not move the bill to the Finance Committee for a hearing nor release it for a hearing on the Senate floor unless it was amended to require that Native American managed care enrollees be locked-in for a year.  There was no good reason for this requirement.  In fact, the bill – unamended – mirrored federal law by permitting Native Americans to opt in or out of managed care every month.  Mr. Burkhart’s demand for an amendment seemed to be based upon erroneous information that could have been addressed and corrected, as it was in other committee hearings, if you had given the bill a hearing.   In other committee hearings, HSD Deputy Director Brent Earnest asserted that the department would not be able to accomplish the goals of Centennial Care, to improve the quality of healthcare provision throughout the state, if the Native people were permitted to enroll and dis-enroll on a month-to-month basis.  This is not supported by the facts.  In fact, the history of Native peoples’ participation in managed care reveals the opposite.  At the inception of managed care in 1997, all Native American Medicaid beneficiaries were mandatorily enrolled in the program but permitted to opt out.  Enrollees soon began to opt-out of the program and have maintained a long-standing pattern of enrollment wherein fifteen percent (15%) of the population receives health care services through the managed care program and eighty-five (85%) receives care from Indian Health Service, tribal and off-reservation facilities.  The HSD is fully aware of this consistent pattern of healthcare access by our people.  Under the state’s current rules, Native Americans are already afforded the option of “opting-out” of managed care during the first 90 days of any 12-month enrollment lock-in period.  This demonstrates that the concern of Mr. Earnest is simply unfounded.

 

Additionally, the basis for the initial referral to the Senate Finance Committee was apparently the estimate by HSD officials that month-by-month enrollment for Native American beneficiaries would incur an expense of $108,000 in general funds.  However, HSD could provide no analysis to substantiate this estimate.  It is arbitrary and erroneous and we refute it.  The Affordable Care Act mandates that Native Americans are subject to a special enrollment period that permits purchasing of or changes to qualified health insurance plan through the Exchange on a monthly basis.#  The ASPEN system is already required to accommodate this functionality before 2014 to permit Native Americans to transition between Exchange and Medicaid coverage accordingly.  Any technological improvements made to a state’s Medicaid eligibility and enrollment IT systems made before December 31, 2015 are eligible for a federal match of 90/10.#  If it is indeed true that the state would have to spend $108,000 to make this adjustment, the federal government will pay 90% of the cost rendering an actual cost to the state of $10,800.  Counter to HSD’s claim, the state would benefit from maintenance of the fee-for-service arrangement and non-enrollment of Native Americans in managed care through savings of millions of dollars annually that would otherwise be spent on managed care capitation costs.

 

Health care for Native Americans has historically been and continues to be a federal trust responsibility to Native tribes throughout the United States.  The American Reinvestment and Recovery Act (ARRA) §5006(e) mandates that state plans for Medicaid must involve extensive and regular consultation with tribal health programs and urban Indian organizations and must “include solicitation of advice prior to submission of any plan, amendments, waiver requests and proposals for demonstration projects likely to have a direct effect on Indians, Indian health programs, or urban Indian organizations.”  Furthermore, New Mexico’s State-Tribal Collaboration Act, N.M.S.A., 11-18-3(C)(2009) mandates that the state “make a reasonable effort to collaborate with Indian nations, tribes or pueblos in the development and implementation of policies, agreements and programs of the state agency that directly affect implementation of policies, agreements and programs of the state agency.”  The permanent authorization of the Indian Health Care Improvement Act (IHCIA) under the Patient Protection and Affordable Care Act (PPACA) also requires that Native American health care be addressed within a government to government framework.  It is well-recognized that federal authority overrides state law and particularly when federal law speaks directly to healthcare services and Native Americans.”

 

The state’s failure to acknowledge the capacity and needs of tribal healthcare systems, its inability to move beyond stereotypical views of tribal societies together with its disregard of authorities cited above necessitated the introduction of HB 376 despite the Centers on Medicare and Medicaid Services’ (CMS) denial of the state’s petition to force our people into managed care.  The action taken by you is deeply troubling and communicates that our voices will not be heard by you and that the laws that have been set in place to guide our co-existence and encourage collaborative effort may be disregarded.  As citizens of our nations and the state of New Mexico, this is an untenable position and we call upon you to inform us regarding the basis of your decision to prevent the passage of HB 376 and to begin to build a relationship based on knowledge and mutual trust.

                        Sincerely yours,

 

DRAFT LETTER TO REP MADALENA FROM TRIBAL LEADERS:

 

DRAFTMarch 15, 2013

 

The Honorable Michael Sanchez
Senate Majority Floor Leader
State Capital
Santa, New Mexico 87505

 

Dear Senator Sanchez,

I write to bring your attention to issues regarding actions surrounding HB 376, Native Americans in Medicaid Managed Care.  The bill sits in Senate Finance, despite repeated requests for a hearing since it passed unanimously out of Senate Indian Affairs and Judiciary Committees in recent weeks.  The bill has received collective support by the House before reaching the Senate side.  However, here is my concern.  It has become apparent over the past four days that the reason the bill has stalled is because of the partisan actions by SFC analyst Michael Burkhart, former Director within the New Mexico Human Services Department.

 

It is my belief that the bill was assigned to the Senate Finance Committee because of assertions by the Human Services Department (HSD) that passage of the bill would require $108,000 in technology improvements to their Medicaid IT system.  HSD has provided no data to explain the source of this cost, and HB 376 proposes no changes to the current system besides reducing the existing 90-day one-time managed care dis-enrollment option to a monthly option.  Furthermore, this amount cannot be considered an appropriation, as these funds were already accounted for in the program costs for the ASPEN system design, which received an appropriation last year.  Additionally, it is my understanding that under the Affordable Care Act, any state funds spent on Medicaid IT enhancements are reimbursable at a 9 to 1 match.  Therefore, the maximum true cost to the state would be $10,800, already present in the IT system allocations.

 

Directly after the passage of the bill in the Senate Indian and Cultural Affairs Committee on February 28th, tribal lobbyists and representatives from the New Mexico Center on Law and Poverty met with analyst Burkhart to explain this supposed fiscal impact issue.  After providing documents and materials, they asked that he speak to Senate Finance Committee Chair, Senator John Arthur Smith, about removing the bill from the committee due to the lack of any real fiscal impact.  Mr. Burkhart made assurances at that time that he understood the issue and would speak to Senator Smith.  Several times over the last two weeks, these initial representatives, as well as, Regis Pecos, staff to House Majority Leader Rick Miera and Senator Benny Shendo continued to touch base with Mr. Burkhart, who assured them he would speak to the Chair.

 

Late in the evening of March 13th, when it became apparent that no such action had been taken, Mr. Pecos met with Mr. Burkhart in his office.  Mr. Burkhart became enraged with Mr. Pecos and indicated that he did not believe that Indians were entitled to special treatment and that he would not give the bill a hearing unless an amendment was made to HB 376 that would establish an annual enrollment/dis-enrollment criterion.  I was taken aback that an independent analyst would block legislation from moving forward based on his personal prejudice.  Through the session, neither HSD nor the Governor’s office has contacted my office to offer or suggest any form of compromise.  It is most alarming that Mr. Burkhart has appointed himself as a representative of HSD authorized to suggest, let alone demand, a compromise.  In subsequent meetings with Mr. Burkhart he has continued to issues these mandates and to prevent the hearing of this important piece of legislation supported by all 23 sovereign nations in New Mexico.  Most recently, my office has indicated that a compromise position is possible.  But at this juncture, this should be a matter taken up by the entire Senate body.  Meetings with Senator Smith have been equally unfruitful and have resulted in his deferral to Mr. Burkhart’s opinion.

 

HB 376 has enjoyed wide bi-partisan support to date: passing 9 to 2 through the House Health, Government, and Indian Affairs Committee, unanimously through House Judiciary Committee; 60 to 7 on the House Floor; and unanimously through the Senate Indian and Cultural Affairs Committee as well as the Senate Judiciary Committee.  As we reach the last crucial hours of this legislative session, I respectfully ask your assistance in removing my bill from Senate Finance and have it proceed to the Senate Floor without delay.  Thank you.

Sincerely,

 

Representative Roger Madalena (Dist. 65)
NM House of Representatives