In this Memorandum we provide the status on several key legislative matters that are fighting for attention and floor time as the 1st Session of the 115th Congress ends in mid-late December. Congress is on recess during Thanksgiving week and will return on November 27. Any legislation not enacted in this Session will carry over to the 2nd Session of the 115th Congress which convenes in early January 2018.
FY 2018 Appropriations. Federal agencies are currently receiving FY 2018 funding via a Continuing Resolution (CR), which by and large provides funds at FY 2017 levels and conditions. The CR extends through December 8, 2017, and failure to enact another CR or a regular FY 2018 omnibus appropriations bill by that date would result in a partial government shutdown.
House Status. On September 14, the House of Representatives approved an omnibus FY 2018 appropriations bill (HR 3354) consisting of all twelve appropriations bills. (See our General Memorandum 17-047 of September 18, 2017.) There is not any expectation that this bill could pass the Senate. Among its problems is that it would break the Budget Control Act’s cap on defense spending by $72 billion, contains many controversial legislative riders and would provide $1.57 billion toward construction a wall on our Nation’s southern border – provisions strongly opposed by most Congressional Democrats. Nevertheless, this is the House’s position that will be conferenced with whatever the Senate approves. Our General Memoranda 17-039 of July 27, 2017, describes the provisions relating to the Indian Health Service (IHS) and 17-044 of August 25, 2017, describes the provisions relating to Indian Affairs (which includes the Bureau of Indian Affairs and Bureau of Indian Education).
Senate Status. The Senate Appropriations Committee has reported out eight of its twelve FY 2018 appropriations bills. Late today, two of the remaining four bills were released as a “Chairman’s Mark”. Those two bills are Interior, Environment and Related Agencies and Financial Services. We understand it is likely that these bills will not be marked up by the Committee but will nevertheless serve as something with which to conference with the House. We understand that a “Chairman’s Mark” of the Defense and Homeland Security bills will be released later this week. In subsequent General Memoranda we will report in detail on the IHS and Indian Affairs provisions in the Chairman’s Mark of the Interior, Environment and Related Agencies bill.
Time is very short time to reach agreement between the House and Senate on FY 2018 appropriations matters and another CR may be required. In order to make funding available above the current spending caps, the Budget Control Act will have to be amended prior to enactment of the appropriations bills.
Children’s Health Insurance Program (CHIP). Funding for CHIP expired at the end of September 2017. CHIP provides health coverage to low-income children and pregnant women whose income exceeds Medicaid eligibility criteria and who have no health insurance. The Centers for Medicare and Medicaid has distributed some unallocated funds to selected states to keep their programs operating, but some states are now saying that they are getting close to having to shut down the program.
House Status. On November 3, 2017, the House approved, on a nearly party-line vote, a five-year CHIP reauthorization bill (HR 3922). Most House Democrats, while supporting the CHIP program, voted against the bill due to their objection to the funding offsets it contains. HR 3922 also contains extensions of other health programs, notably Special Diabetes Program for Indians (SDPI) and the Community Health Center program (see below).
Senate Status. On October 4, 2017, the Senate Finance Committee approved legislation (S 1827) to reauthorize the CHIP program for five years. However, it does not contain extension of other health programs such as SDPI and the community health centers nor does it contain the funding offsets of the House bill to which Democrats objected. The bill has not yet been considered by the full Senate.
Special Diabetes Program for Indians (SDPI)/Community Health Center Funding. The SDPI funding was set to expire at the end of September 2017 but Congress provided an additional 3 months of funding as part of the CHIP reauthorization bill(though December 31, 2017). As noted above, the House-approved CHIP bill includes an extension of other health programs. It includes a two-year (FYs 2018 and 2019) extension of SDPI at $150 million per year (the current funding level) and a two-year extension for the community health centers whose funding expired at the end of September 2017. There is also a standalone House bill to extend SDPI through FY 2019 at the current rate of funding (HR 3917).
Most House Democrats, while supporting these health programs, voted against the bill due to their objection to the funding offsets it contains. On the Senate side, there is not yet a health extenders bill but the Senate Finance Committee circulated a draft bill, which unfortunately does not include SDPI. Standalone bills to extend SDPI through FY 2024 (with adjustments for inflation each year) have been introduced in the House (HR 2545) and Senate (S 747); however, no action has occurred on either bill.
Veterans Choice Health Program. The Veterans Choice Program allows veterans, under certain circumstances, to utilize non-Veterans Administration (VA) health care facilities, including tribally- and Indian Health Service (IHS)-operated facilities. Congress provided an infusion of funds for the program in this past summer which is expected to last only through December.
Following a recent period of anticipation that the House and Senate Committees on Veterans Affairs would markup Veterans Choice reform legislation, the effort has bogged down over issues of cost and whether the funding for non-VA provided health care should be mandatory or discretionary.
Given that the Veterans Choice Program is scheduled to run out of funding at the end of the year, an effort was made to add $2.1 billion to a House veterans’ bill dealing with VA facilities and leasing to keep the program afloat through FY 2018. However, the bill was pulled from floor consideration over cost concerns.
Tax Reform. Both the House and Senate tax reform efforts give scant consideration to tribal priorities. Further, both bills are projected to increase the federal deficit and could thus erode the amount of federal discretionary funding available to support federal trust and treaty obligations in the future. We understand that it is for these reasons that neither bill has gained the support of the National Congress of American Indians nor the Native American Finance Officers Association. The NCAI and NAFOA joint statement is attached.
House status. On November 16, the House approved their tax bill (HR 1) on a nearly party-line vote.
Senate status. On November 16, the Senate Finance Committee reported out their yet-to-be-numbered tax bill on a party-line vote. Included in the Committee’s bill is a provision that would end the Affordable Care Act’s required individual mandate to purchase health insurance. The Administration strongly supported the inclusion of this provision but over the weekend has softened its stance, indicating that the provision could be dropped from the bill if it would enable passage of the tax legislation. Finally, the Senate Energy and Natural Resources Committee has reported out a controversial provision to be wrapped into the Senate tax bill that would open a portion of the Arctic National Wildlife Reserve to oil and gas drilling.
Infrastructure. The Trump Administration has not developed a plan for addressing our nation’s infrastructure needs even though it was a key part of President Trump’s campaign. We do not expect Congress to consider an infrastructure proposal this year although appropriations bills do, as a matter of course, include infrastructure funding.
Tribal Bills. While the Senate Committee on Indian Affairs (SCIA) and the House Natural Resources Committee have reported out a number of bills, some tribal-specific and others more broadly applicable to Indian Country, getting floor time for them has proved elusive. The situation is similar for other committees’ bills. In the Senate, for instance, considerable floor time now is mainly reserved for matters such as nominations, especially judicial nominations. Taxes, FY 2018 appropriations, disaster aid and the approaching debt ceiling will occupy much of the last month of the session. Nevertheless, it is worthwhile to advocate for the small amount of time it would take for consideration of non-controversial but substantive tribal bills.
We will continue to follow developments on these issues as Congress grapples with these issues during the last month of the session.
