Wonky Word Wednesdays: Tribal Consultation

Today, the state of Montana is holding a tribal consultation, an important requirement in the process to submit its Medicaid expansion waiver to the federal Center on Medicare and Medicaid Services (CMS). But what is a tribal consultation, and why is it important? That brings us to today’s Wonky Word – tribal consultation.

According to CMS, tribal consultation between state Medicaid administrators and tribal leaders and tribal health programs is to “provide an enhanced form of communication that emphasizes trust, respect, and shared responsibility. It is an open and free exchange of information and opinion among parties, which leads to mutual understanding and comprehension. Consultation is integral to a deliberative process that results in effective collaboration and informed decision-making with the ultimate goal of reaching consensus on issues and better outcomes.”

Under federal law, states must engage in tribal consultations when applying for a 1115 waiver. According CMS, tribal consultation requirements are in place to recognize the sovereignty of tribal governments and ensure that any changes to a state’s Medicaid program will not inadvertently create problems for Indian health services. Apart from being required by federal law, this type of discussion is an indication of a state’s effort to support positive and genuine state-tribal relations.

Today, Montana is conducting its tribal consultation in Helena to discuss the soon-to-be-submitted waiver to give tens of thousands of Montanans access to affordable health care. You can view the Department of Health & Human Services invitation to the tribal consultation here.

In the past, states that have failed to properly follow the tribal consultation requirements have been met with disapproval either from CMS or from tribal leaders and their advocates. It is important for states to know that inadequate consultation could potentially hinder a state’s waiver approval. An example of this consequence include a letter from the New Mexico Center on Law and Poverty about the lack of tribal consultation resulting in the CMS rejection of New Mexico’s waiver application. Similar circumstances have occurred in Kansas and Oklahoma.

In 2013, CMS released a report on tribal consultation best practices, which included formal tribal health consultation policy examples from Washington, Oregon, and Minnesota. Here is the report summary of successes and challenges:

Respondents noted various attributes that contribute to the success of these interactions, including: Involvement and support of tribal and state leadership, an established state-tribe relationship, and genuine, meaningful, and open communication. In contrast, barriers to effective consultation reflected issues such as: obstacles created by consultation requirements, state or tribal staff turnover, and resource limitations preventing participation in consultations.

You can view the entire CMS Tribal Consultation Best Practices report here.

Tribal consultations are important government-to-government discussions that help ensure the proposed state policy takes into account tribal sovereignty and the strengths and needs of Indian Country. We look forward to hearing from the tribes and the state on how today’s consultation will make Montana’s waiver even better.

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