February 2, 2023

In This Week's Washington Report

• Ninth Circuit Court of Appeals: Washington State DHAT program does not violate Medicaid provision; federal government will reimburse serv

• Medicaid Unwinding: Continuous Enrollment Requirement ends March 31, 2023

• Veterans Affairs: VA proposes to exempt Native veterans from copays

News from Across Indian Country

Ninth Circuit Permits Reimbursement for Dental Health Aide Therapists Operating in Washington State Tribal Communities

On January 12, the Ninth Circuit Court of Appeals reversed a Trump-era decision to deny Medicaid funding for Dental Health Aide Therapists (DHATs) in Washington Tribal communities. Currently, the state covers all the Medicaid costs out of its own budget. ThisT decision means the federal government will soon cover the entire cost of DHAT services for Medicaid patients in Washington State. This will improve access to dental care and provide needed revenue for Tribes.

The DHAT program is vital to Indian Country to address the health disparities in Tribal communities, and federal Medicaid payments are essential to ensuring the sustainability and success of community health-level programs. American Indians and Alaska Natives experience untreated dental conditions at more than three times the rate of the general population. DHATs are midlevel dental care providers who work under the supervision of a licensed dentist and provide a limited range of services in a culturally competent manner. The program is modeled after the successful Alaska program that was approved for Medicaid funding in 2004. 

This decision by the Ninth Circuit reverses the decision by the Centers for Medicare and Medicaid Services (CMS), which had deemed the inclusion of DHATs on the Medicaid reimbursement list violated the free choice of provider statute. The court reasoned that because the DHAT law merely authorizes where and how DHATs practice, it does not at all restrict Medicaid recipients’ ability to obtain services from DHATs relative to non-Medicaid recipients

What does this mean for Tribes outside of Washington and Alaska? The impact on Tribes will vary across the country, as it will depend on each state’s support for authorizing a DHAT program, but this clears the way for the free-choice-of-provider issue at the agency level. Ideally, states will follow suit when they realize the benefits available to them without impacting the state budget, with the reimbursement flowing from the federal government.

Medicaid Unwinding Update: Continuous Enrollment Requirement Ends March 31, 2023; Disenrollment to Begin as Early as April 1, 2023 

On January 5, CMS announced that state Medicaid programs can begin Medicaid eligibility redeterminations beginning February 1, 2023 and can begin disenrolling ineligible individuals by April 1, 2023.

The continuous enrollment requirement permits individuals to remain on Medicaid regardless of a change in circumstance – like income – that would otherwise deem them ineligible for coverage. This began at the start of the COVID-19 public health emergency (PHE) and was intended to keep people enrolled throughout the PHE. Now, states are permitted to return to normal eligibility and enrollment operations.

Medicaid enrollees can expect to receive letters from their state’s Medicaid program requesting updated contact information, income verification, or other information needed to determine an individual’s eligibility. States may begin this process as soon as February 1 but this timeline will vary from state to state. It is now more important than ever that individuals ensure their contact information is up to date so that they do not miss these notifications.

Check out NIHB’s Medicaid Unwinding page for more information and to download outreach and education materials.

VA Proposes Rule to Exempt Native Veterans from Copays

On January 12, the U.S. Department of Veterans Affairs (VA) published a proposed rule detailing how it intends to implement a new copay exemption for Native veterans. The long-awaited exemption was created by the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (the “Act”). The Act requires that “Indian and Urban Indian” veterans be exempted from copays for hospital care or medical services provided under laws administered by the VA.

• Why it matters: The cost of copays can prevent Indian veterans from accessing needed health care; this rule will determine the extent to which the intended copay exemption is effective in reducing this barrier to care. Exempting Indian veterans from paying copays for VA health services is important to address inequities in health care access, create parity across federal sources of health care (i.e. Indian Health Service and VA), and live up to the federal trust responsibility.

• Services included in exemption: The exemption would cover most hospital care and medical services. However, some critical services are not included, like institutional care and long-term care. Notably, the copay exemption for urgent care is also limited. VA will only exempt the first three urgent care visits in a calendar year; copays will be required for the fourth visit and any subsequent visits.

• The VA plans to identify Native veterans eligible for the exemption by requiring individuals to provide documentation verifying that they are “an Indian or urban Indian.” The VA proposes to defer to Tribal governments as to the documentation that they provide to members for this purpose. However, requiring Indian veterans to produce additional documentation, on top of the already burdensome VA eligibility process, would create additional barriers to care. In previous comments, NIHB and other Tribal health advocates have advocated for VA to allow Indian veterans to self-identify their status, with the caveat that the veteran could be asked to submit proof of eligibility at a later date. This is in line with other federal programs that use self-attestation processes, such as Medicaid and the Marketplace.

What’s next? The VA will accept comments on this proposed rule until February 13, 2023. The rule will not go into effect until after all comments are considered and a final rule is published. NIHB will work with VA Tribal Advisory Committee, Tribal leaders, and Tribal technical advisors to develop proposals on how to address the concerns in the proposed rule. 



National Indian Health Board | www.nihb.org | 202-507-4070

Visit the NIHB COVID-19 Tribal Resource Center at www.nihb.org/covid-19