T F R :
T HE F EDERAL T RUST R ESPONSIBILITY :
C ONGRESSIONAL P OLICY ON
A MERICAN I NDIAN AND A LASKA N ATIVE H EALTH
AND
R
ECOMMENDATIONS TO
I
MPROVE
H
EALTH
O
UTCOMES by
Jessica Nu Ton
B.S., University of Washington, 2009
B.A., University of Washington, 2009
Submitted to the Graduate Faculty of
Health Policy and Management
Graduate School of Public Health in partial fulfillment of the requirements for the degree of
Master of Public Health
University of Pittsburgh
2014
UNIVERSITY OF PITTSBURGH
GRADUATE SCHOOL OF PUBLIC HEALTH
This essay is submitted by
Jessica Nu Ton on
December, 2014 and approved by
Essay Advisor:
Elizabeth Ferrell Bjerke, J.D.
Assistant Professor
Health Policy and Management
Graduate School of Public Health
University of Pittsburgh
Essay Reader:
Mary Crossley, J.D.
Professor of Law
School of Law
University of Pittsburgh
______________________________________
______________________________________ ii
Copyright © by Jessica Nu Ton
2014 iii
Elizabeth Ferrell Bjerke, J.D.
T HE F EDERAL T RUST R ESPONSIBILITY :
C ONGRESSIONAL P OLICY
ON A MERICAN I NDIAN AND A LASKA N ATIVE H EALTH
AND R ECOMMENDATIONS TO I MPROVE H EALTH O UTCOMES
Jessica N. Ton, M.P.H.
University of Pittsburgh, 2014
ABSTRACT
For over 500 years, American Indians and Alaska Natives (AI/ANs) have been afflicted with higher rates of morbidity and mortality than that of the general population. These marked disparities in health status persist today, with the Indian Health Service (IHS) reporting higher
AI/AN mortality rates from chronic liver disease and cirrhosis (368% higher), diabetes mellitus
(177% higher), unintentional injuries (138% higher), and chronic lower respiratory diseases
(59% higher). Ironically, AI/ANs are the only ethnic groups in the United States who are born legally entitled to healthcare. Through treaties with Indian tribes, Congress has promised to provide education, housing, and healthcare to the AI/AN population. Today, the federally-funded
IHS delivers services to 2.2 million AI/ANs through direct health care services and tribally operated health care programs.
So why do American Indians and Alaska Natives have some of the worst health outcomes? Congress is not unfamiliar with providing healthcare to special populations; it also manages programs such as Medicare, the Veterans Administration, Tricare, and the Bureau of
Prisons. However, a closer comparison amongst federal health programs reveals a stark iv
inequality in Congressional appropriations. Congress spends less per capita on an American
Indian or Alaska Native than any other federal healthcare program beneficiary; the average
Medicare patient is budgeted over four times as much funding. An awareness of how differences in funding can impact health disparities is of great public health importance. Understanding where Congress is channeling its funds gives direct insight to those programs and populations it prioritizes most, and accordingly, questions regarding health equity manifest.
Equally significant is a realization of how federal health policy, more so than the advancement of medical innovations, can improve the outcomes of AI/ANs. The federal government has not fulfilled its promise to secure AI/AN health and must provide more funding support to tribes to in order to do so.
The Patient Protection and Affordable Care Act (ACA) provides opportunities for tribes to apply for supplementary funding through grants in Comparative Effectiveness Research.
These grants will allow tribes to better enable best practices for alternative avenues of healthcare delivery, and provide a greater understanding towards healthcare disparities. v
TABLE OF CONTENTS
HISTORICAL AMERICAN INDIAN POLICY AND ITS EFFECTS ON
ERA OF SELF-DETERMINATION ............................................................... 11
THE FEDERAL TRUST RESPONSIBILITY ........................................................ 14
HEALTHCARE INFRASTRUCTURE........................................................... 14
INFRASTRUCTURE SUPPORT .................................................................... 16
NATIONAL TRIBAL HEALTHCARE DELIVERY ............................................ 19
vi
Federal Torts Claims Act Coverage ............................................................. 23
COMPARATIVE EFFECTIVENESS REEARCH ................................................ 29
PATIENT-CENTERED OUTCOMES RESEARCH INSTITUTE .............. 29
Healing Traditions versus Modern Medicine ............................................. 30
638 Programs versus IHS Direct Services ................................................... 31
638 Programs versus other 638 Programs .................................................. 31
vii
LIST OF TABLES
viii
LIST OF FIGURES
ix
PREFACE
This essay is submitted in partial fulfillment of the requirements for a Master in Public
Health with the Graduate School of Public Health at the University Of Pittsburgh. It is a culmination of learning and research throughout my time in graduate school, pursuing a Juris
Doctor along with my Master in Public Health.
During the summer of 2013, I was working for Washington State as an intern in health policy. I carpooled with a colleague who happened to be a member of the Cheyenne River Sioux
Tribe. Our 90 minute commutes gave us plenty of time to discuss a variety of topics; one of the more popular being issues in the federal governance of American Indians. His emphasis on
Native American health disparities was the inspiration for this essay, and I would like to recognize his role in introducing and engaging me in the topic.
I’d also like to thank Professor Mary Crossley, J.D., for all the hats she’s worn for me during my graduate academic career – Dean, legal professor, and research professor. I’ve learned so much about health and the law under her tutelage. Her guidance was invaluable in the writing of this essay – and she’ll not only get the pleasure to read this just once, but twice!
Lastly, I’d like to express my gratitude to Professor Elizabeth Ferrell Bjerke, J.D., my faculty advisor. She has been such a great champion for the JD/MPH program and its enrollees.
Her support made all the difference during my graduate academic career. x
1.0 INTRODUCTION
Prior to contact with Europeans, Native Americans 1 enjoyed a rich healing tradition based on a balance of the inter-relationships between the mind, body, spirit, and the environment.
2
After the Europeans reached the Americas, disease, displacement, and warfare took their toll on the Native American population. With time, acute epidemics which ravaged
Native Americans up until the mid-20th century gave way to a burden of chronic disease.
Although the underlying disease environments have changed, one fact remains the same: Native
Americans consistently suffer some of the worse health status and outcomes in the United
States.
3
Disparity in health status has endured through centuries, and still persists today.
For the last five centuries, Native Americans have continuously suffered more severely from prevailing diseases than any other racial or ethnic group in the United States.
4
Even today, at 73.5 years, Native Americans have a life expectancy four years younger than that of the
1 It is important to note that there is no single Native American culture. There are hundreds of tribes in the United
States, each with its own unique culture and customs. For the purposes of this essay, the term “Native American” refers to any person who identifies ethnically with an indigenous tribal population. The terms “American Indian” and “Alaska Native” are political designations which refer to a subpopulation of Native Americans whose status as members of federally recognized tribes entitle them to special benefits.
2 Sala Horowitz, American Indian Health: Integrating Traditional Native Healing Practices and Western Medicine ,
A LTERNATIVE AND C OMPLEMENTARY T HERAPIES , Feb. 2012, at 24, 25.
3 David Jones, The Persistence of American Indian Health Disparities , A M .
J.
P UB .
H EALTH 2122 (2006).
4 Id.
1
general population.
5
Native Americans suffer many of the same diseases that the general population does, but at higher rates (Table 1).
Table 1: Leading Causes of Death for Native Americans 6
Leading Causes of Death for
Native Americans
Chronic Liver Disease & Cirrhosis
Diabetes mellitus
Self-Harm / Suicide
Chronic Lower Respiratory Disease
Unintentional Injuries
Assault Homicide
Native American prevalence, compared to general American population
368% higher
177% higher
138% higher
82% higher
65% higher
59% higher
Although the Native American population in North America has better health when compared with other indigenous groups in the Central and South Americas, Native North
Americans are still dying from diseases they should not have to die from.
7 8
In the United States, the marked disparity between Native Americans and other American citizens has not gone unnoticed, and a number of theories have been asserted as to why Native Americans have poorer health status. These theories have waxed and waned through time, and are generally reflective of other social, economic, and political theories regarding American Indians.
9
Today, the poor health status of American Indians is mainly attributed to social determinants of health such as poverty, substandard housing, and unemployment. Unique to the American Indian experience is the fact that Congressional policy directly governs the provision of many services, including
5 Indian Health Service, Disparities , (Jan. 28, 2014, 09:00 AM), http://www.ihs.gov/newsroom/factsheets/disparities/ .
6 Age-adjusted rates. Indian Health Service, Disparities , (Jan. 28, 2014, 09:00 AM), http://www.ihs.gov/newsroom/factsheets/disparities/ .
7 Patrick Rivers, Environmental Assessment of the Indian Health Service , H EALTH C ARE M ANAGE R EV . 293 (2005).
8 Sala Horowitz, American Indian Health: Integrating Traditional Native Healing Practices and Western Medicine ,
A LTERNATIVE AND C OMPLEMENTARY T HERAPIES , Feb. 2012, at 24.
9 Some theories for Native American susceptibility to disease include genetic inferiority, condemnation of
Christianity’s God, and punishment of an immoral lifestyle. David Jones, The Persistence of American Indian
Health Disparities , A M .
J.
P UB .
H EALTH 2122, 2129 (2006).
2
health, housing, and education. Federal policy directly impacts American Indian health, more so than many other subpopulations in the United States.
10
Some tribes have a unique relationship with the federal government.
11
Congress recognizes these tribes as sovereign, and thus, the relationship between Congress and each of these tribes is a government-to-government relationship. Members of these tribes have a status as
“American Indian” under federal policy.
12
The Constitution gives Congress the exclusive power to “regulate commerce with Indian tribes,” 13 and Congress exercises that authority: Title 25 of the United States Code is dedicated solely to Indian affairs. This partly stems from the Federal
Trust Responsibility, which is Congress’ obligation to provide social, medical, and educational services to the federally recognized tribal members. However, despite this obligation, American
Indians continue to suffer from higher mortality and morbidity rates. This essay will argue that the federal government has not fulfilled its obligation to secure American Indian health, and must provide more support to tribes to in order to do so.
1.1
ROADMAP
Section 2.0 will begin by drawing upon historical record of Native American policy, looking at the interplay between Native Americans their relationships with the “Western” world,
10 Native Americans (encompassing American Indians, Alaska Natives, Native Hawaiians, and Native Pacific
Islanders) are the only ethnic groups explicitly governed under the United States Code.
11 566 tribes, to be exact. Tribal Directory , B UREAU OF I NDIAN A FFAIRS (Mar. 28, 2014, 11:00 AM), http://www.bia.gov/WhoWeAre/BIA/OIS/TribalGovernmentServices/TribalDirectory/ .
12 Being “American Indian” is a political determination, not just an ethnic identifier. This umbrella term also includes Alaska Natives. Margaret Moss, American Indian Health Disparities: By the Sufferance of Congress?
32
H AMLINE J.
P UB .
L.
& P OL
’
Y 59, 66 (2010).
13 U.S. Const. art I, § 9, cl. 3.
3
with a focus as to how the prevailing eras of American Indian policy have affected Native
Americans’ health.
Section 3.0 will further explain the Federal Trust Responsibility, and introduce the Indian
Health Service, which is the federal government’s current method of fulfilling its Trust
Responsibility to American Indian health.
Section 4.0 will next detail the Indian Health Service (IHS), which is a single-payer, nation-wide network of hospitals and clinics dedicated solely for the provision of health services to the American Indian population. The structure of IHS is unique when compared with other single payer public programs such as Medicare or the Veterans’ Administration. Most significantly, legislation from the 1970s allow for tribes – the beneficiaries of the Federal Trust
Responsibility – to choose different methods of how they want their healthcare to be delivered.
Section 5.0 will argue that Congress has not adequately fulfilled its Trust Responsibility to secure American Indian health. The Indian health delivery system requires more support from
Congress to improve American Indian health outcomes. This essay will discuss two areas – lack of budget appropriations and lack of evidence-based research – which negatively impact health outcomes for American Indians. The essay will also argue that policy measures by Congress hold the best chance of rectifying these gaps.
Section 6.0 looks to the Affordable Care Act (ACA) and puts forth its comparative effectiveness research provisions a promising avenue which should be leveraged by tribes to become better informed to improve the health of their tribal communities.
Section 7.0 will conclude this essay.
4
2.0 HISTORICAL AMERICAN INDIAN POLICY AND ITS EFFECTS ON HEALTH
From its earliest roots, United States history has, and continues to be, intertwined with that of Native Americans’. When analyzing American Indian outcomes in a historical and legal context, it becomes apparent that federal policy as a strong effect on the lives and well-being of
American Indians. Differing policies throughout this five hundred year relationship has manifested in many disparate outcomes, including health disparities.
2.1
PRE-COLUMBIAN ERA
American Indian health was never perfect. Even prior to European contact, Native
Americans suffered from malnutrition, violence between warring tribes, and diseases such as tuberculosis and pneumonia.
14
This baseline minimal health made the Native American population vulnerable to European diseases like smallpox, measles, influenza, hepatitis, plague, chickenpox, diphtheria, and malaria.
15
14 David Jones, The Persistence of American Indian Health Disparities , A M .
J.
P UB .
H EALTH 2122, 2123 (2006).
15 Id.
5
2.2
AGE OF DISCOVERY
During the Age of Discovery, conquistadors and colonists began to encroach upon tribal lands. Native Americans’ claims to land were invalidated and ignored.
16
This displacement, combined with inter-tribal and intra-tribal warfare and rampant epidemics made it very obvious by the end of the 17th century that the populations living in North America were following very different trajectories: the Europeans flourished, while the indigenous populations withered.
17
Native American susceptibility to European diseases baffled conquistadors, colonists, and natives alike. The disparity in mortality rates was overwhelming; scholars estimate up to 90 percent of the indigenous American populations may have died solely due to disease within the first 100 years of European contact.
18
As an previously isolated population, Native Americans were “biologically naïve” to new diseases.
19
Without the same genetic resistance that Europeans gained from generations of exposure, the native population succumbed to European diseases at a much higher rate.
20
Pfefferbaum notes that “never in human history have so many new and virulent diseases hit any one people, all at one time.” 21
16 This widespread practiced was legitimized under the “Discovery Doctrine.” See generally , Margaret Moss,
American Indian Health Disparities: By the Sufferance of Congress? 32 H AMLINE J.
P UB .
L.
& P OL
’
Y 59, 66 (2010).
17 David Jones, The Persistence of American Indian Health Disparities , A M .
J.
P UB .
H EALTH 2122, 2124 (2006).
18 Id.
at 2123.
19 Matthew White, Atrocities: The 100 Deadliest Episodes in Human History 184 (2013).
20 David Jones, Virgin Soils Revisited , 60 T HE W ILLIAM AND M ARY Q UARTERLY 703 (2003).
21 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 213 (1997).
6
2.3
REMOVAL ERA
By the early 1800s, the United States of America was a newly independent nation, and its
Constitution categorized different citizenship and political statuses for different groups of people, including men, women, children, slaves, and American Indians. More specifically, the
Constitution states that Congress would have the exclusive “power to regulate Commerce … with the Indian tribes.” 22
Indian tribes, therefore, are distinguished from the federal government, the states, and other foreign nations, meaning that Congress has recognized a unique status – and relationship – with tribes.
23
As the Union expanded, state governments sought to dissolve the boundaries of Native American borders and expropriate the land. These states appealed to
Congress, which acquiesced. The Removal Era ushered in federal policy seeking to move tribes west of the Mississippi River. The term “Removal Era” is a misnomer; “forced relocation” is more apt. Even worse, this forced relocation essentially amounted to widespread ethnic cleansing of the indigenous Native American population.
24
Forced marches such as the Trail of Tears killed many Native Americans through exposure, disease, and starvation.
25
Higher death rates, lower pregnancy rates, and increased infant mortality rates also contributed to Native population decline.
26
In the 1830s, the United States began entering into treaties (often signed under duress) with some tribes for land and natural resources in exchange for money and services such as
22 U.S. Const. art I, § 9, cl. 3.
23 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 254 (1997).
24 Steve Russell, A Black and White Issue: The Invisibility of American Indians in Racial Policy Discourse , 4 G EO .
P UBLIC P OL
’
Y R EV . 129, 135 (1999).
25 William Bradford, Reparations, Reconciliation, and an American Indian Plea for Peace with Justice , 27 A.
I NDIAN L.
R EV .
1, 70 (2002).
26 Id.
at 71.
7
housing, health, and education.
27
These treaties also recognize tribal status, and recognize claims to hunting, fishing, water, minerals, and land.
28 Because of these treaties, the Supreme Court, under Chief Justice Marshall,
29
handed down a series of decisions that laid down the basic framework for federal Indian law. These decisions, referred to as the Marshall Trilogy, establish the legal and political standing of Indian nations as “domestic dependent nations.” 30
This characterization became the basis for the Federal Trust Responsibility.
31
Ironically, this meant that despite the government-to-government relationship between Congress and Indian tribes, the tribes’ dependency on the federal government imposed upon Congress a trust responsibility to the tribes. This responsibility continues today.
2.4
RESERVATION ERA
As American settlers expanded further westward, American Indians in the mid- to late
1800s were relocated under the Indian Appropriations Act of 1851 to reservations in the
Midwest.
32
This federal policy of reservations had a drastic adverse effect on American Indian health. Housing was, and still remains, inadequate and substandard.
33
Most significant was the
27 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 219 (1997).
28 William Bradford, Reparations, Reconciliation, and an American Indian Plea for Peace with Justice , 27 A.
I NDIAN L.
R EV .
1, 65 (2002).
29 John Marshall served as Chief Justice from 1801 – 1835, and still remains the longest serving Chief justice in
United States Supreme Court history.
30 See generally, Cherokee Nation v. Georgia , 30 U.S. 1 (1831).
31 Margaret Moss, American Indian Health Disparities: By the Sufferance of Congress?
32 H AMLINE J.
P UB .
L.
&
P OL
’
Y 59, 62 (2010).
32 Id . at 65.
33 Even today, many reservation families live without running water, telephone lines, electricity, and/or sewage connections. American Indian Relief Council, Living Conditions , (May 4, 2014, 6:11 PM), http://www.nrcprograms.org/site/PageServer?pagename=airc_livingconditions
8
overcrowding. Combined with unsanitary conditions, these terrible living conditions changed patterns of mortality and morbidity. Tuberculosis, previously rare in American Indian populations, thrived in cramped and unsanitary living conditions of Indian reservations.
34
The impact of tuberculosis was devastating. Nationwide, tuberculosis alone accounted for over half of reservation deaths.
35
The policies that were enacted pertaining to American Indians were not with ill-intent.
These policies were paternalistic in nature – attempting to help American Indians who “could not help themselves.” 36
Despite the underlying assumption of White superiority in culture and religion, Congress began to pay greater attention to American Indians and recognize its responsibility to tribes. The Progressive Era
37
brought new funding to the Bureau of Indian
Affairs which subsequently organized campaigns against tuberculosis, infant mortality, trachoma, house flies, alcoholism, and tooth decay.
38 These interventions resulted in the first positive population growth rate in over half a century.
39
Despite this victory, disparities persisted.
Tuberculosis, trachoma, and pneumonia persisted at much higher levels than the rest of the
United States.
40
The Great Depression made it very clear to government officials that there exists a causal link between socioeconomic non-development and poor health status.
41
Policy makers began to believe that disparities in health status arose from disparities in socioeconomic status, rather than an inherent inferiority of the Indian race.
34 David Jones, The Persistence of American Indian Health Disparities , A M .
J.
P UB .
H EALTH 2122, 2126 (2006).
35 Id.
36 William Bradford, Reparations, Reconciliation, and an American Indian Plea for Peace with Justice , 27 A.
I NDIAN L.
R EV .
1, 50 (2002)
37 A period of social activism and political reform lasting from the 1890s through the 1920s.
38 David Jones, supra , at 2128.
39 Id.
40 Id.
41 Id.
at 2129.
9
2.5
TERMINATION ERA
Yet in the mid-1940s through the mid-1960s anti-native sentiment reared its head again, and Congress responded to the public belief that American Indians would be better off if they were assimilated into mainstream society.
42
Congress proposed to end the special relationship between tribes and the federal government by refusing to recognize the sovereignty of tribes. The intention was that American Indians would begin to integrate and participate in society, rather than depend on a government who had mismanaged them. This amounted to another forced relocation – although this time, it was aimed at resettling American Indians from reservations into urban areas. Another paternalistic policy, urban resettlement was the solution for American
Indians to gain employment and escape poverty.
43
But instead of providing incentives for
American Indians to move off-reservation, Congress severed its government-to-government relationship with certain tribes, thereby washing its hands of the Federal Trust Responsibility owed to them. During this time over 100 tribes lost recognition by Congress; these tribal members were removed from their reservations and shuttled to urban areas throughout the nation.
44
Ironically, because the Bureau of Indian Affairs could no longer provide necessary health care services for terminated tribes, Congress eventually ended up reforming Indian health care policy. Responsibility for American Indian health was transferred from the BIA to the
Public Health Service (PHS) in 1955.
45
The PHS then established the Indian Health Service
(IHS) to be responsible for providing medical and public health services to members of federally
42 Linda Burhansstipanov, Urban Native American Health Issues , CANCER S UPPLEMENT , March 2000, at 1208.
43 Id .
44 Margaret Moss, American Indian Health Disparities: By the Sufferance of Congress?
32 H AMLINE J.
P UB .
L.
&
P OL
’
Y 59, 65 (2010).
45 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 219 (1997).
10
recognized tribes.
46
The mission of IHS is to raise the health status of American Indians and
Alaska Natives to the highest level possible.
47
The effort to socially and culturally integrate American Indians into mainstream, urban society was eventually considered a failure.
48
The mid-20th century was known as the “golden age of medicine”, with new medical discoveries, technologies, and innovations being delivered – but it became clear that entrenched health disparities would not yield to medical technology.
49
Furthermore, the Termination Era demonstrated just how fragile the status as an American Indian was – the sovereignty that tribes retain exist only at the sufferance of Congress.
50
Congress chooses who to recognize as a tribe, and therefore, who is an “Indian.” 51
As a result, protecting against defeasance of sovereignty
52
is now the number one issue in Indian County, with the maintenance and strengthening of sovereignty close behind.
53
2.6
ERA OF SELF-DETERMINATION
The ongoing tensions between American Indian termination, integration, and selfdetermination will be a perpetual struggle. However, the dominant federal American Indian policy today is that of self-determination. This movement, beginning in the 1960s, reversed
46 Today, the Indian Health Service is housed within the Department of Health and Human Services.
47 Indian Health Service, Mission (May 4, 2014, 6:57 PM), http://www.ihs.gov/dsfc/index.cfm?module=mission
48 Linda Burhansstipanov, Urban Native American Health Issues , CANCER S UPPLEMENT , March 2000, at 1208.
49 David Jones, The Persistence of American Indian Health Disparities , A M .
J.
P UB .
H EALTH 2122, 2130 (2006).
50 Margaret Moss, American Indian Health Disparities: By the Sufferance of Congress?
32 H AMLINE J.
P UB .
L.
&
P OL
’
Y 59 (2010).
51 Id . at 62.
52 Referring to Congress’ ability to render sovereignty null and void.
53 Moss, supra , at 62.
11
paternalistic policies and empowered tribes to exercise self-governance and decision making on their own affairs. Self-determination is a manifestation of a tribe’s sovereign powers.
The self-determination movement sought to restore self-government, tribal community, cultural renewal, and meaningful partnership concerning federal government policies. The Nixon
Administration ushered in several laws enabling self-determination, including the health-related
Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA).
54
Considered the most significant law regarding Indian health services, ISDEAA allows tribes to exercise control over health care programs.
55
Unlike other single-payer programs, the Indian Health Service was restructured to allow its beneficiaries – the tribes – to choose for themselves how they wish use
Congressional appropriations for health care services and delivery. Tribes now have two alternatives: either to have the IHS provide traditional care through IHS-operated hospitals and clinics, or to use Congressional funding to operate and manage their own healthcare programs.
Tribes which opt for the latter generally run outpatient healthcare programs and facilities specialized to the local needs of the community.
56
In addition to providing more options for tribal healthcare, the self-determination movement led to increased cooperation between tribal and federal governments. The Clinton
Administration had a legacy of meaningful tribal consultation which strengthened the government-government relationship, ensuring that tribal leaders have substantial input regarding Indian Affairs.
57
Tribal leadership and participation in IHS policy led to astounding
54 Indian Self-Determination and Education Assistance Act, Pub. L. No. 93- 638, 88 Stat. 2203 (1975).
55 Donald Warne, Ten Indian Health Policy Challenges for the New Administration in 2009 , W ICAZO S A R EV . 7, 13
(2009).
56 Typically organized and operated as not-for-profit 501(c)(3) organizations. Health Resources and Services
Administration, Tribal & Urban Indian Health Centers , (May 2, 2014, 9:55 AM), http://www.hrsa.gov/opa/eligibilityandregistration/healthcenters/tribalurbanindian/index.html
57 Warne, supra , at 22.
12
reductions in disease prevalence by the 1990s.
58
The gap in health disparities between Native
Americans and the general population narrowed, but is still far from equal.
58 David Jones, The Persistence of American Indian Health Disparities , A M .
J.
P UB .
H EALTH 2122, 2130 (2006).
13
3.0 THE FEDERAL TRUST RESPONSIBILITY
The Indian Healthcare Improvement Act of 1976 explicitly acknowledged the government’s “special responsibilities and legal obligations to the American Indian people.” 59
However, there is a perpetual debate that surrounds exactly what these responsibilities and obligations are, and how Congress is to act.
60
Federal policy governing Indian Country provides direct insight as to how Congress views its responsibility to American Indians. Fulfillment of the trust responsibility is manifested in the resources and support it provides to the American Indian people. In the health context, Congress established the Indian Health System as an exclusive, national, health delivery system to provide healthcare services to American Indians. However,
IHS is insufficiently funded and unable to provide the necessary amount of care that American
Indians require.
3.1
HEALTHCARE INFRASTRUCTURE
Throughout most of United States history, healthcare for American Indians was either nonexistent or insubstantial. Emergency appropriation by Congress in 1912 led to the first
59 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 216 - 224 (1997).
60 Id.
at 219.
14
concerted effort by the Bureau of Indian Affairs (BIA) to attack the tuberculosis epidemics in the reservations.
61 Eventually, responsibility for Indian healthcare transferred from the BIA to the
Public Health Service (PHS) in 1955, and this transition has substantially improvement in health status of American Indians.
62
Although PHS established the IHS, the IHS is now housed within
DHHS. Prior to 1975, American Indians received health care services through IHS-operated hospitals, clinics, and doctors on reservation land. The enactment of the ISDEAA resulted in a drastic change in policy – tribes would now be provided the option assume control from IHS to administer their own health programs.
63
61 David Jones, The Persistence of American Indian Health Disparities , A M .
J.
P UB .
H EALTH 2122, 2128 (2006).
62 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 217 (1997).
63 Id.
15
3.2
INFRASTRUCTURE SUPPORT
Figure 1. Indian Health Service Population by Area
64
Chronic underfunding is correlated with the poor health in Indian Country, and is one of the strongest indicators that Congress does not take its responsibility to American Indians seriously. The IHS service population consists of over 2.1 million American Indians served at
64 © Department of Health and Human Services. HHS FY 2015 Budget in Brief: Indian Health Service , October 29,
2014, http://www.hhs.gov/budget/fy2015-hhs-budget-in-brief/hhs-fy2015budget-in-brief-ihs.html
16
over 630 facilities in 35 states.
65
Services areas are combined into the 12 service regions as shown in Figure 1. Although the Obama Administration has prioritized health care for American
$12,000
$10,000
$8,000
$6,000
$4,000
$2,000
$0
Indians, and increased IHS funding by $800 million, the 2013 budget sequestration imposed a 5 percent cut to the agency.
66
In 2014, Congressional appropriations to IHS amounted to $4.4 billion.
67
Analysis suggests that IHS is only funded to about 60% of its need.
68
There is a saying in Indian Country: if one is going to get sick, he “better get sick by June,” as it is not uncommon for the IHS to exhaust its budget by the summer.
69
$11,018
$7,154
$6,909
$5,841
$4,817
$2,741
Medicare Veterans
Administration
National Average* Medicaid
1990s** 2000s*** 2010s****
Federal Employees Indian Health
Service
Figure 2: Federal Healthcare Program Spending Per Capita 70
65 Id .
66 Andrew Rosenthal, The Sequester Hits the Reservation, N.Y. Times , March 20, 2013 at http://www.nytimes.com/2013/03/21/opinion/the-sequester-hits-the-indian-health-service.html?_r=0
67 Indian Health Service, Justification of Estimates for Appropriations Committees , Mar. 12, 2013, http://www.ihs.gov/budgetformulation/includes/themes/newihstheme/documents/FY2014BudgetJustification.pdf
68 Donald Warne, Ten Indian Health Policy Challenges for the New Administration in 2009 , W ICAZO S A R EV . 7, 10
(2009).
69 Margaret Moss, American Indian Health Disparities: By the Sufferance of Congress? 32 H AMLINE J.
P UB .
L.
&
P OL
’
Y 59, 71 (2010).
70 * Data unavailable from 1990s.
** Letter from William Scanlon, Director of Health Financing and Systems Issues, General Accounting Office, to
William Thomas, House Representative, Federal Health Programs: Comparison of Medicare, the Federal
17
The underfunding of IHS is most striking when compared to the per capita spending of other governmental health programs. Since its inception, IHS has had the lowest spending per capita than other single-payer system, such as Medicare and the Veterans’ Administration.
71
Over the past three decades, health spending on American Indians has increased, but is still comparatively lower than other special populations.
72
Programs such as Medicare and the
Veterans’ Administration are important, but Congress does not have a trust obligation to provide these services. Prisoners in federal penitentiaries are the only population who have a
Constitutional right to health care,
73
but because of Congress’ treaties with ancestral tribes,
American Indians are the only population entitled to healthcare services from birth. This raises concerns as to health equity. Is Congress right to place higher priority on the health of federal prisoners, veterans, and the elderly over American Indians? The level of Congressional appropriation is just one indicator of how the federal government values and views its obligation to the American Indian.
Employee Health Benefits Program, Medicaid, Veterans’ Health Services, Department of Defense Health Services, and Indian Health Services (August 7, 1998) http://medicare.comission.gov/medicare/gao.html
.
*** Indian Health Service, 2005 IHS Expenditures Per Capita Compared to Other Federal Health Expenditure
Benchmarks , (Jan. 28, 2014, 4:00 PM) http://www.ihs.gov/publicinfo/publicaffairs/ihs_fact_sheets/files/files/percapitahlthexpendcomparisoncharts2-6-
2006.pdf
**** National Congress of American Indians, Health Care: Implementing Our Values in the Federal Health Care
Budget , F ISCAL Y EAR 2013 I NDIAN C OUNTRY B UDGET R EQUEST , (Jan. 28, 2014, 3:30 PM), http://www.ncai.org/resources/ncai-publications/indian-country-budget-request/FY2013_Budget_Health_Care.pdf
71 See Figure 1, supra.
72 See Figure 1, supra.
73 Provision of medical care for federal prisoners falls under the Eighth Amendment’s prohibition on cruel and unusual punishment. Andrew Wilper, The Health and Health Care of US Prisoners: Results of a Nationwide Survey ,
99 A M .
J.
P UB .
H EALTH 666 (2009).
18
4.0 NATIONAL TRIBAL HEALTHCARE DELIVERY
To understand American Indian health, it is important to understand how their healthcare delivery system is structured. Federally, the IHS is the health care provider for American Indians and Alaska Natives, and is an agency within the Department of Health and Human Services. The goal of IHS is “to assure that comprehensive, cultural acceptable personal and public health services are available and accessible.” 74
Additionally, the IHS strives “to uphold the Federal
Government’s obligation to promote healthy American Indian and Alaska Native people, communities, and cultures, and to honor and protect the inherent sovereign rights of the
Tribes.” 75
4.1
IHS/TRIBAL/URBAN
The Indian healthcare system has three avenues of service delivery.
76
First is “IHS,” which references the traditional method of direct, IHS-furnished entities and services to
American Indians. Second is “Tribal,” and refers to the tribes which elect to provide their own health programs for their tribe’s members. IHS then takes on a supporting role depending on the
74 Indian Health Service, About IHS: Our Goal (November 1, 2014, 12:09 PM) http://www.ihs.gov/aboutihs/
75 Indian Health Service, About IHS: Our Foundation (November 1, 2014, 12:11 PM) http://www.ihs.gov/aboutihs/
76 Margaret Moss, American Indian Health Disparities: By the Sufferance of Congress? 32 H AMLINE J.
P UB .
L.
&
P OL
’
Y 59, 70 (2010).
19
preference of each tribe. Lastly, there is the “Urban” delivery system, which provides care for
American Indians who live outside of tribal and reservation lands. This system is known as the
IHS/Tribal/Urban System, commonly shortened as the I/T/U System.
77
This essay will further discuss the two options available for tribes: IHS and Tribal.
4.1.1
IHS Direct Services
Also known as direct services, the traditional method of healthcare delivery comprises
IHS-run hospitals and clinics in areas its target population – members of federally recognized tribes. There is no question that the IHS has extensive knowledge concerning tribal health, and its establishment has improved the health status of American Indians nationwide.
4.1.2
Tribal Programs
Tribal Programs . Also known as “self-governance”, the tribal delivery system allows tribes greater latitude in decision-making and permits them to use resources for a broader variety of purposes. The Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA) gives tribes the choice to assume management and control of healthcare programs.
78
Since
ISDEAA is synonymous as Public Law 93-638, tribes that elect to play a greater role the delivery of healthcare to their members are known as “638 Tribes.” The option for a tribe to selfgovern is just that: an option. The choice is an exercise of the tribe’s self-determination; each
77 Donald Warne, Policy Issues in American Indian Health Governance , J.
L.
M ED .
& E THICS 42 (2011).
78 Id.
20
tribe chooses for itself whether or not it would prefer to deliver locally tailored programs with
IHS funding or to have the IHS directly serve its members.
4.2
PUBLIC LAW 93-638
Public Law 93-638 was written in such a way as to make the option to self-govern healthcare delivery as easy as possible. There are many advantages 638 Tribes receive in turn for managing their own healthcare needs:
4.2.1
Carry Over Funding 79
As a federal agency with Congressional funding, appropriations to IHS must be spent completely within the fiscal year, or it will lose the surplus and risk a smaller budget for the subsequent year. Unlike other agencies, this has never been a problem because the IHS always runs out of money before the end of the fiscal year. However, 638 Tribes have the ability to carry-over unspent funds from one year to the next without concern that it will be lost of affect the next year’s appropriation. This allows tribes greater capacity to fund long-term health planning, especially important with the increasing burden of chronic disease in tribal communities.
79 Donald Warne, Policy Issues in American Indian Health Governance , J.
L.
M ED .
& E THICS 42, 43 (2011).
21
4.2.2
Lump Sum Payments
80
638 Tribes that show a proven track record of fiscal responsibility are eligible to receive annual Congressional appropriation as a lump sum. This advantage allows the tribe to deposit the payment into an interest-bearing account and keep the interest generated.
4.2.3
Third-party Revenue
81
American Indians are not limited in ability to obtain other sources of health insurance such as Medicare, Medicaid, and private insurance. For 638 Tribes, third-party revenue is treated as supplemental income, and has no impact on appropriations. This is a significant financial incentive for tribes to operate their own health care programs and to capitalize on a revenue stream that would otherwise be unavailable.
4.2.4
Eligibility for Grants
As a federal agency, IHS is ineligible for numerous health-related grants in both the government and private sectors. 638 Tribes are usually organized as 501(c)(3) not-for-profit corporations and therefore eligible for many grant opportunities that will further diversify their funding sources.
80 Donald Warne, Policy Issues in American Indian Health Governance , J.
L.
M ED .
& E THICS 42, 44 (2011).
81 Id.
at 43.
22
4.2.5
Federal Tort Claims Act Coverage
82
The Federal Tort Claims Act permits private parties to sue the United States for torts committed on persons acting on behalf of the United States.
83
Although they are not federal employees, 638 healthcare providers are specifically eligible for professional liability insurance coverage under the Federal Tort Claims Act, saving tribes the additional expense of purchasing insurance.
4.2.6
Ability to Lobby 84
As federal employees, IHS employees are prohibited from lobbying. 638 healthcare providers are not limited in this regard, and maintain the ability to lobby and advocate on behalf of their community’s health.
4.2.7
Local Control
85
Most significant to the self-determination movement, 638 Tribes gain the ability to focus their programs to their particular local health needs. Each tribe is different in terms of governance, cultural perspective, and health needs. 638 tribes have the ability to tailor their programs to areas that the tribal community feels is most important, rather than accept IHS’
“cookie-cutter” health services. As a result, health programs become more responsive and
82 Donald Warne, Policy Issues in American Indian Health Governance , J.
L.
M ED .
& E THICS 42, 43 (2011).
83 Federal Tort Claims Act, Pub. L. No. 79- 601, 60 Stat. 812 (1946).
84 Id.
85 Id.
23
culturally competent. A more active role in healthcare delivery also means that the tribal members become more engaged and play a greater role in the success of the program.
Despite the advantages to “going 638”, there are other considerations tribes must take into account when deciding to transition. First of all, some tribes are very small.
86
This can create a barrier to entry due to the lack of capital (financial, personnel, expertise) to launch new programs. These programs, especially ones that begin to incorporate traditional Native American holistic paradigms, may impede beneficiaries’ understanding of health and navigation of a new delivery system. In addition, the geographic isolation of many tribes means that there will be a continuous struggle to recruit and retain healthcare providers and administrators – a struggle that also plagues IHS direct services. Finally, in a broader context, self-governance of healthcare delivery means that the economies of scale may result in larger operational costs per unit of cost of production, resulting in a more fragmented and inefficient health system.
87
As sovereigns, tribes should be able to decide how they develop, structure, and implement their health services delivery to the greatest extent possible. Currently, about 50 percent of tribes elect to have greater control over their healthcare delivery through P.L. 93-
638.
88
The choice between IHS direct services and 638 compacts is one way a tribe exercises its self-determination, but this choice can only be meaningfully exercised alongside a strong partnership with the federal government.
86 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 239 (1997).
87 Id . at 238.
88 Donald Warne, Policy Issues in American Indian Health Governance , J.
L.
M ED .
& E THICS 42 (2011).
24
5.0 DISCUSSION/THESIS
The Federal Trust Responsibility obligates Congress to provide certain benefits to
American Indians. Congress’ policies as a result of this Trust Responsibility greatly impacts the lives of American Indians. Federal housing, economic, educational, and health policies are all determinants of American Indian health. Currently, these policies manifest in a form that contributes to disparate health outcomes for American Indians. Congress has yet to secure health for American Indians. However, Congressional policies affecting the social determinants of health, more so than medical treatments, have the greatest potential to improve the health status and the outcomes of American Indians.
89
The extent to which the federal government honors its responsibility to the American
Indian is manifested in its policies and funding support. In terms of health, the fact a dedicated health delivery system exists to provide health services to American Indians is a positive indicator, but the IHS’ disparately lower funding when compared to other governmental health programs is another indicator of how the federal government views its responsibility.
90
Moreover, tribes that choose to exercise their self-determination by providing health services under 638 compacts should not be viewed as “declaring independence” from federal support. The federal government’s responsibility does not fade into the background, but instead
89 Donald Warne, Ten Indian Health Policy Challenges for the New Administration in 2009 , W ICAZO S A R EV . 7, 8
(2009).
90 See Figure 1, supra.
25
takes on a different form. IHS steps away from its managerial and administrative role to one of consultation and guidance.
91 However, this is not enough. Fulfilling the Trust Responsibility requires that Congress not only provide health care options and financial support to tribes, but also obligates that Congress provide enough research and information for tribes to make informed decisions, thereby ensuring a tribe’s meaningful exercise of self-determination.
Congress has afforded great flexibility in allowing tribes to transition and develop a broad range of programs, but this leaves some tribes wondering how best to transition under P.
L. 93-638. Despite IHS expertise and guidance, there is a dearth of data as to tribal health programs and their effect on American Indian health outcomes.
There is a general acceptance that the establishment of the IHS has advanced the health of American Indians.
92
The ISDEAA carved out a second pathway for healthcare services, but no research exists as to whether or not 638 Tribes’ programs result better health outcomes than that of IHS direct services. Furthermore, no evaluation has been conducted to compare one tribe’s
638 program with another tribe’s 638 program. Having confirmation as to evidenced-based interventions, cost-effectiveness, comparative effectiveness, and resulting health outcomes is critical information that should not be absent. These gaps in information leave some tribes unable to make well-informed decisions about their healthcare delivery.
On a theoretical level, this lack of information may be moot – after all, the overriding policy of self-determination allows a tribe to choose, how it wishes to deliver health services, regardless of its impact on outcomes. But 638 Tribes are looking to improve the well-being of their members; they are not going to make haphazard decisions just as a symbolic exercise of
91 Margaret Moss, American Indian Health Disparities: By the Sufferance of Congress? 32 H AMLINE J.
P UB .
L.
&
P OL
’
Y 59, 75 (2010).
92 Rose Pfefferbaum, Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and
Practices , 21 A M .
I NDIAN L.
R EV . 211, 217 (1997).
26
their sovereignty. Tribes want to work in conjunction with the federal government – which has an obligation to support the tribes – to help improve the health of their communities. Having quantitative and qualitative analyses of the advantages of P. L. 93-638 would be critical for tribes in choosing whether and how to transition to a new method of healthcare service delivery. The
Federal Trust Responsibility obligates the federal government to provide these analyses.
The American Indian population is not the only population that would benefit from this information. This same lack of evidence-based and effectiveness research are seen as serious gaps in providing effective, high quality care for the healthcare of all American citizens.
93
Every doctor has an obligation to ensure his patient has sufficient information to make an informed decision regarding medical treatment.
94 95
The patient-centered care movement is gaining momentum, and many laws and policies that are being developed nationwide can be leveraged to conduct research into tribal health programs and improve population health. The movement centers on respect for each individual patient’s values, beliefs, and behaviors as essential pillars of quality. The high value placed on informed consent, choice of provider and treatments, and equity aligns the patient-centered care movement with the social justice movement. That is, there should be an entitlement to patient-centered care, regardless of its impact on outcomes. This concept ties strongly with tribal sovereignty. Tribes should be free to develop their own health programs tailored to the needs of the local community, including cultural competency elements drawn from their native healing traditions. Meaningful exercise of self-determination requires
93 Richard Saver, Health Care Reform’s Wild Card: The Uncertain Effectiveness of Comparative Effectiveness
Research , 159 U.
P A .
L.
R EV .
2147, 2156 (2011).
94 Discussion with Mary Crossley, Professor, U NIVERSITY OF P ITTSBURGH S CHOOL OF L AW (Feb. 19, 2014).
95 Simon Whitney , A Typology of Shared Decision Making, Informed Consent, and Simple Consent , 140 A NNALS OF
I NTERNAL M ED .
54 (2004).
27
Congress provide options for tribes to govern their health, but also exclusively support research into personalized healthcare services and delivery methods for tribes.
28
6.0 COMPARATIVE EFFECTIVENESS REEARCH
In absence of dedicated federal support, tribes should independently leverage opportunities available to the general public that are a result of the recent health care reform.
More specifically, tribes should take advantage of research opportunities to generate data regarding the effectiveness of 638 programs and traditional native practices. Through the Patient
Protection and Affordable Care Act (ACA)
96
, Congress has advanced funding for comparative effectiveness research (CER), which is aimed at informing health care decisions by providing evidence on the effectiveness, benefits, and harms of different treatment options.
97
6.1
PATIENT-CENTERED OUTCOMES RESEARCH INSTITUTE
The ACA establishes the Patient-Centered Outcomes Research Institute (PCORI), the nation’s first comprehensive CER program.
98
PCORI’s mission is to “assess the benefits and harms of preventive, diagnostic, therapeutic, palliative, or health delivery system interventions to inform decision making, highlighting comparisons and outcomes that matter.” PCORI published
96 Patient Protection and Affordable Care Act, Pub. L. No. 111- 148, 124 Stat. 119 (2010) (to be codified in scattered sections of 42 U.S.C.).
97 Richard Saver, Health Care Reform’s Wild Card: The Uncertain Effectiveness of Comparative Effectiveness
Research , 159 U.
P A .
L.
R EV .
2147, 2150 (2011).
98 Id.
29
for open comment its guidelines for the funding of comparative effectiveness research, and the
PCORI Board of Governors subsequently adopted the National Priorities for Research and
Research Agenda.
99
There are five priorities: (1) Assessment of Prevention, Diagnosis, and
Treatment Options, (2) Improving Healthcare Systems, (3) Communication and Dissemination
Research, (4) Addressing Disparities, and (5) Accelerating Patient-Centered Outcomes Research and Methodological Research.
100
Tribes should take advantage of the grant opportunities afforded by PCORI to better evaluate and compare alternatives of their health options. There are at least four categories where comparative effectiveness research would be particularly useful for tribes.
6.1.1
Healing Traditions versus Modern Medicine
The Native American holistic health practice falls under the umbrella of Complementary and Alternative Medicine – a catch all category for any practice of medicine that is not
“Western” or “modern.” 101
Although each tribe is different, many Native Americans view health based on a balance of interrelationships between the mind, body, spirit, and environment.
102
These holistic systems dominated America prior to European contact, and there is a strong movement to reestablish these roots and draw from these traditions. These methods are also of interest to non-natives; research comparing traditional healing methods with modern medicine would be beneficial to all citizens.
99 Patient-Centered Outcomes Research Institute, National Priorities for Research and Research Agenda , May 21,
2012, http://www.pcori.org/assets/PCORI-National-Priorities-and-Research-Agenda-2012-05-21-FINAL1.pdf
100 Id.
101 Sala Horowitz, American Indian Health: Integrating Traditional Native Healing Practices and Western
Medicine , A LTERNATIVE AND C OMPLEMENTARY T HERAPIES , Feb. 2012, at 25.
102 Id.
30
6.1.2
638 Programs versus IHS Direct Services
Despite the expertise Indian Health Service has concerning American Indian health, it has not yet analyzed which health delivery method results in better health outcomes. Research to determine whether or not health programs run by 638 Tribes are beneficially improving the health of their communities to a greater extent than IHS direct services has simply not been done.
CER funding provides an exciting opportunity for 638 Tribes to evaluate their programs to determine exactly that.
6.1.3
638 Programs versus other 638 Programs
There has been consistent confusion and misclassification of Native Americans.
103
The terms “Native American”, “American Indian”, and “Alaska Native” are overbroad, as they encompass hundreds of tribes, each having its own culture, traditions, and beliefs. CER provides a unique opportunity for tribes to learn from each other and adapt culturally sensitive and culturally appropriate health care.
6.1.4
Cultural Competency
Cultural competency refers to a “set of congruent behaviors, attitudes, and policies that come together in a system, and enables that system to work effectively in cross-cultural
103 For example, Native Americans in urban areas are likely to be misclassified as Hispanics since many surnames – both Native American and Latinos – are Spanish in nature. Linda Burhansstipanov, Urban Native American Health
Issues , CANCER S UPPLEMENT , March 2000, at 1210.
31
situations.” 104
638 Tribes are more likely to have culturally sensitive interventions, and while these are praised by the patient-centered movement as resulting in higher quality and patient satisfaction, the literature has not yet linked cultural competency with measurable health outcomes
105 106 107
. Currently, health systems have little data showing which cultural competency techniques work, and even less evidence concerning how to implement them properly. However, researchers, academics, practitioners, professionals, and even governments are hopeful that cultural competency has the potential to reduce racial and ethnic disparities. Minority Americans consistently have poorer health status than nonminority Americans.
108
Minority Americans are also disproportionately represented in lower socioeconomic brackets. Low socioeconomic status strongly correlates with poor health status. Moreover, even if minority and nonminorities within the same socioeconomic bracket are compared, minority Americans still experience different health experiences.
109 Researchers conclude that, overall, the American health care delivery system does an inferior job in meeting the needs of racial and ethnic minorities.
110
CER opportunities would be successful in generating more associations between cultural competency and health outcomes. Research on cultural competency can begin to be implemented into health interventions, potentially changing both clinician and patient behaviors by improving communication and increasing trust. From there, a greater understanding of the patient’s cultural
104 Cindy Brach, Can Cultural Competency Reduce Racial and Ethnic Health Disparities? A Review and Conceptual
Model , M ED .
C ARE R ES .
& R EV . 181, 182 (2000).
105 Joseph Betancourt, Linking Cultural Competence Training to Improved Health Outcomes: Perspectives From the
Field , A CAD .
M ED . 583 (2010).
106 Brach, supra , at 184.
107 Id.
at 201.
108 Id.
at 188.
109 Id.
110 Id.
32
environment would lead to provision of more appropriate health services.
111
Providing appropriate health services then leads to better health outcomes.
112
111 C. Daniel Mullins, The Potential Impact of Comparative Effectiveness Research on the Health of Minority
Populations, 29 Health Affairs 2098, 2099 (2010).
112 Cindy Brach, Can Cultural Competency Reduce Racial and Ethnic Health Disparities? A Review and Conceptual
Model , M ED .
C ARE R ES .
& R EV . 181, 194 (2000).
33
7.0 CONCLUSION
The five century-long persistence of Native American health disparities can not only be viewed as a health inequity issue, but considering the fact that the federal government has an obligation to provide for the health of the American Indian, fulfillment (or lack thereof) of the
Trust Responsibility can be seen as a civil rights issue. Federally recognized tribes now have the option to choose between multiple avenues for health care services and delivery. However, in order for tribes to exercise meaningful self-determination in the health arena, it is not enough to provide choices. As a part of its Trust Responsibility to American Indians, Congress additionally must to provide support and information which enables tribes to make informed decisions.
Despite the obligation the federal government has to tribes, tribes should additionally look broadly for opportunities to improve their communities’ health. The ACA contains promising provisions regarding comparative effectiveness research. CER incentives have the potential to inform on evidenced-based practices, improve trust between tribes and researchers, improve cultural appropriateness, and better health outcomes. These CER opportunities should be leveraged by tribes to increase their knowledge of health care delivery and outcomes, which will better inform tribes on how to meaningfully exercise their sovereignty.
34
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UDGET
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37
I
NTERVIEWS
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ITTSBURGH
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CHOOL OF
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AW
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38
