OLYMPIA — Attorney General Bob Ferguson, the Swinomish Indian Tribal Community and the Washington Health Care Authority are joining together in an effort to reverse a last-minute Trump Administration decision to deny Medicaid funding for Dental Health Aide Therapists in Washington tribal communities.
Dental Health Aide Therapists, or DHATs, help fill a void in tribal communities, many rural, which have a significant shortage of dentists and dental services. Native Americans experience untreated dental conditions at more than three times the rate of the United States’ general population.
The decision to deny Medicaid funding, made by the Centers for Medicare & Medicaid Services (CMS), came on the last day of the Trump Administration and nearly a year after a federal hearings officer recommended the funding be approved. CMS has previously approved Medicaid funding for a similar program in Alaska under the Bush Administration.
If approved, the federal government would cover the entire cost of DHAT services for Native Medicaid patients in Washington. Currently, the state is covering all of the Medicaid costs out of its own budget, but that funding is set to expire in June.
Ferguson, on behalf of the Health Care Authority, and the Swinomish Tribe have jointly filed a petition with the U.S. Court of Appeals for the Ninth Circuit asking the court to overturn the federal agency’s decision. In addition, Swinomish and the Health Care Authority sent a letter this week to the acting secretary of the U.S. Department of Health & Human Services (HHS) and the acting administrator of CMS, urging them to overturn the Trump Administration’s last-minute decision. HHS is the parent agency of CMS.
The letter sent from Swinomish and the Health Care Authority urges the Biden Administration to reverse the CMS denial, citing commitments the new administration has already made to fulfill our nation’s “solemn promises” to tribal nations to advance the sovereignty, health and wellbeing of tribal members.
Quoting from a memorandum on advancing tribal consultation that President Biden issued on his sixth day in office, the letter urges his administration “to ‘speak with and listen to Tribal leaders’ in connection with this important issue.”
“The DHAT program is a classic example of ‘Tribal sovereignty and self-governance’ and shows that Tribes in the State are indeed ‘empowered to lead their communities,’ ” the letter continues.
In 2015, Swinomish became the first tribe in the country to establish its own dental health provider licensing law and regulatory system, which includes the licensing and regulation of dental therapists.
“Dental therapists are a Native solution to the unmet needs of Native people for dental care,” said Steve Edwards, Chairman of the Swinomish Indian Tribal Community. “Dental therapists provide culturally competent care to their patients and communities. That’s important on its own, but it also frees dentists to use their skills for the most complex conditions and procedures.”
“At the same time, dental therapy also helps address economic disparities in Native communities by providing a career path that meets community needs and is consistent with cultural values,” continued Chairman Edwards. “Dental therapists may not be able to address every Native dental health challenge, but they are a critical part of an overall strategy to improve health outcomes in Indian Country.”
“The Trump Administration spent four years damaging the relationship between tribes and the federal government, and the Biden Administration has an obligation to repair that damage as quickly as possible,” Ferguson said. “Reversing this last-minute anti-tribal decision by the Trump Administration is an easy way to immediately begin to rebuild trust.”
“I applaud the innovative approach that the Swinomish Tribe has taken to address the oral health needs of their tribal members,” Gov. Jay Inslee said. “Washington is fully supportive of using Dental Health Aide Therapists across the state, and I encourage the federal government to help us ensure equitable access to oral health using these trained professionals.”
“Ensuring access to high-quality, affordable oral health care is a health equity issue,” Health Care Authority State Medicaid Director MaryAnne Lindeblad said. “Dental Health Aide Therapists can help deliver this important service more broadly around the state, and we are hopeful we will get approval for this approach.”
Dental Health Aide Therapist program
In 2017, Senate Bill 5079 authorized Dental Health Aide Therapists, or DHATs, to provide dental services statewide on reservations. The bill also directed the state to pursue federal Medicaid funding for DHATs.
The bill, proposed by Tulalip Tribes member and then-Sen. John McCoy, passed with overwhelming bipartisan support in the Legislature and was signed into law by Gov. Inslee.
DHATs are professionally trained to perform about 40 oral health care and dental procedures in a culturally competent manner, ranging from preventative services like cleanings to simple extractions. They work under the supervision of dentists, who are trained in a much wider array of procedures. DHAT services increase tribal access to preventative dental care, allowing dentists to focus on more complex procedures. They also reduce wait times and off-reservation referrals that could require patients to travel long distances for care.
Washington’s DHAT program was modeled after the successful program in Alaska, which is widely used in tribal communities there. Alaska originally sent native villagers to New Zealand to train as DHATs before eventually creating its own training program.
After Swinomish created its own dental licensing program, the first tribal Dental Therapist outside Alaska began practicing at the Swinomish Dental Clinic in 2016. Swinomish subsequently sent several tribal members to Alaska to be trained, and is currently working with Skagit Valley College to develop its own training program that will be more accessible to students in the lower 48 states.
In contrast to the Trump Administration’s denial of Washington’s program, CMS approved Medicaid funding for Alaska’s DHAT program, which began in 2004.
Medicaid funding fight
After McCoy’s bill became law, the Health Care Authority began the process with CMS to approve the use of federal Medicaid funding for DHATs for tribal communities.
The federal Indian Health Care Improvement Act, reauthorized as part of the 2010 Affordable Care Act, specifically referenced that DHAT services could be included under the federal Indian Health Service. As a result, if the Health Care Authority’s request were approved, the federal government would pay 100 percent of Native Medicaid costs, with no matching contribution from the state.
CMS initially denied the Health Care Authority’s request in May of 2018, claiming that federal law didn’t allow Medicaid funds to be used because the services were not available to all Washingtonians. The Health Care Authority and the Swinomish Tribe asked the federal agency to reconsider its decision. A federal hearings officer appointed by HHS conducted a day-long hearing in Seattle and in February 2020 agreed with the state agency and Swinomish that Medicaid funding could be used, and recommended approval.
After nearly a year of inaction, on the last day of the Trump Administration, the administrator of CMS disagreed with the hearings officer, and again denied the use of Medicaid funds for DHATs in Washington.
The Ninth Circuit has set an initial briefing schedule for the case filed by Swinomish and the Attorney General’s Office, with the first briefs in the case due in May.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Attorney General’s Office Communications Director, (360) 753-2727; Brionna.email@example.com
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John Stephens, CEO, Swinomish Indian Tribal Community didgwalic Wellness Center, (360) 319-1698; firstname.lastname@example.org