STATE-TRIBAL RELATIONS COMMITTEE MINUTES

A quorum was determined with the following members answering the roll call: Senators Kenneth Albers, Robert Benson, Arnold Brown; and Representatives Richard Hagen, Bill Napoli, J.E. "Jim" Putnam, and Kenneth Wetz. Senator Jim Hutmacher was unable to attend. Representative Sam Nachtigal joined the meeting Wednesday afternoon, August 30. Senator Paul Valandra was present on August 31.

Staff members present included Tom Magedanz, Principal Research Analyst, and Phyllis Petersen, Senior Legislative Secretary.

A list of guests present during all or part of the meeting is on file with the master minutes.

(NOTE: For the sake of continuity, the following minutes are not necessarily in chronological order. Also, all referenced documents are on file with the master minutes.)

Chair Benson opened the meeting by reviewing the agenda. He said the committee may sponsor legislation addressing the issue of elderly care on reservations. Representative Hagen provided the committee with documents relating to the efforts to build a nursing home at Pine Ridge (Documents 1 & 2).

Ms. Cindy Myers, Health Care Financing Administration (HCFA)– Denver, State Program Coordinator for South Dakota, explained the long-term care Medicare/Medicaid certification and survey process. There must first be a need demonstrated and then the facility must meet requirements for reimbursement through the certification and survey process. The survey includes observation of care provided, review of staff policies, interviews with residents and family, and a review of medical records. To become certified, a long-term care facility must have a deficiency-free survey or, if there are deficiencies, a plan of correction. HCFA contracts with state agencies to conduct these surveys every 9 to 15 months. It usually takes between 90 and 120 days before the nursing home will begin to be paid. She also discussed the differences between Medicaid and Medicare funding and the eligibility requirements for each. Senator Benson said there is a growing elderly population on reservations and nursing homes are needed there. He asked if HCFA could help in finding funding sources. Representative Hagen said that the Rosebud Sioux Tribe had the money for construction of a nursing home when the moratorium began but could not receive Medicaid payments under the moratorium. Representative Napoli stated that the federal government needs to be involved in funding tribal nursing homes.

Ms. Sara DeCoteau, Tribal Health Coordinator, Sisseton-Wahpeton Sioux Tribe, spoke on the need for long-term care for Indian elders (Document 5). Ms. DeCoteau serves on a work group created to determine this need. She said that South Dakota's policy is that financing of health services on Indian reservations is the federal government's responsibility. However, IHS has nothing in the budget for nursing homes. At the present time IHS is funded at 45% of need and this is for core health services. The federal government pushes the tribe toward the states on long-term care issues, which leave the tribes caught in the middle. Ms. DeCoteau said the life expectancy for all races in the United States is 75.8 years, Indians in the Aberdeen area have a life expectancy of 65.2 years. She also noted that hearings on reauthorization of the Indian Health Care Improvement of 1978 (Document 4) are being held now. The Act includes new authorities for long-term and hospice care, which the administration does not support because of lack of funds. The reauthorization is not expected to pass this year. Ms. DeCoteau hoped that the state will support and help tribes in developing and financing long-term care options for Indian people.

Mr. Russell McDonald and Dr. Richard Ludtke, National Resource Center on Native American Aging (NRCNAA) University of North Dakota (UND), Grand Forks, noted that the NRCNAA was established in 1994 as a collaboration between the UND Office of Native American Programs and the UND Center for Rural Health and is committed to increasing awareness of issues affecting American Indian, Alaska Native, and Native Hawaiian elders. They are conducting a needs assessment study to compare Native American elders to the general U.S. population to determine the extent of existing social and health differences. Individuals targeted were 55 and over. Age 55 is used for defining elders among Native American populations and is considered comparable to those 65 and over in the general population. They currently have 1,922 respondents from 14 different tribes and the study and data collection is continuing. He directed the committee to the population projections for tribal elders in South Dakota, which show that the pattern of growth will increase substantially in the next twenty years. The survey measured the level of disability by measuring activities of daily living (ADLs). In South Dakota there are 1817 tribal elders with one or more ADL limitations this year (Document 6).

Mr. Steve Scheuermann, Public Health Nurse Consultant, Indian Health Service, Aberdeen Area, said the Aberdeen Area IHS is the principal federal health care provider for approximately 104,000 American Indians in South Dakota, North Dakota, Iowa, and Nebraska. Indian Health Service is aware of the needs of elders on reservations but has no funding to address these needs. The principal legislation authorizing federal funds for health services is the Synder Act of 1921. Congress also passed the Indian Self-Determination and Education Assistance Act, which provided tribes the option of assuming the operation and administration of health services and programs in their communities or remaining with the IHS-administered health system. The Indian Health Care Improvement Act, which needs to be reauthorized this year, is a health-specific law and provides guidance to IHS. The Indian Health Service also provides clinical and community services, but there is no program that is specific to elder care (Documents 7 & 8).

Representative Jim Putnam explained the state's nursing home moratorium and said the nursing home industry is highly regulated because it receives a majority of its income from public funds. The Medicaid program pays a majority of nursing home care. Last year $112 million of the state budget was spent for nursing home care, and 30% of the state's Medicaid funds were spent by nursing home residents. Prior to 1989, a certificate of need process was in place for expansion and construction of nursing homes. The 1988 Legislature repealed the certificate of need process and instituted a moratorium on expansion or construction of nursing homes. The moratorium was renewed in 1991, 1993, 1995, and 2000 and will be up for renewal again in 2005.

Mr. Mike Vogel and Ms. Jaci Casanova-Keller, South Dakota Department of Social Services, said that 61% of the residents of nursing homes are receiving Medicaid; ten years ago 50% were receiving Medicaid. The Department of Social Services works with Indian Health Services on many programs but feels that long-term care on reservations is a federal responsibility. Ms. Casanova-Keller said that 5800 South Dakotans receive services and that 8% of them are American Indian. She distributed a brochure outlining services available from Adult Services and Aging for older South Dakotans (Document 9). In response to questions, Ms. Casanova-Keller said there are 3,000 assisted living beds in SD; 6% of these are Medicaid; and Medicaid does require some fee participation.

Mr. Kevin Forsch, South Dakota Department of Health, noted that this was a very good discussion. He said there may be other ways to meet the needs of Indian elders besides nursing homes, such as assisted living centers. A difficult issue now is staffing in nursing homes; it is difficult to find nurses aides, registered nurses, and food service people. The Health Department works with IHS, but the long-term care issue is fairly new and IHS is not addressing this. Representative Hagen asked about the cost of assisted living. Mr. Forsch said the average is $1000 or $1500 per person per month.

Mr. Ron Brown Otter, Ft. Yates, ND, Standing Rock Sioux Tribe council member, said his tribe passed a resolution and has plans to build elderly housing. They have twenty-five elders in a nursing home in Mobridge who all want to be back on the reservation with their own people. He agrees that IHS needs to authorize and fund long-term care on reservations.

The committee recessed at 4:45 p.m.

The committee reconvened at 9:00 a.m., Thursday, August 31, 2000, with the following members present: Senators Kenneth Albers, Robert Benson, and Arnold Brown; and Representatives Richard Hagen, Bill Napoli, Sam Nachtigal, J.E. "Jim" Putnam, and Kenneth Wetz. Senator Paul Valandra joined the meeting later in the morning. Senator Hutmacher was unable to attend.

Ms. Sue Clain, Health Care Financing Administration (HCFA) - Baltimore, Office of Legislation, said that in visiting tribal health centers she has seen an increasing need for long-term care for Indian elders. She said that culturally appropriate care is not available for Indians in nursing homes. It costs more to provide long-term care on reservations because of their isolation. There are staff shortages and a shortage of volunteers. In some cases there is a lack of or more expensive utilities and there are fewer private-pay residents. She said another problem is lack of staff training and development programs; tribes need to encourage members to enter health professions.

Mr. Wayne Tapio, Pine Ridge, said he lives on the largest reservation in South Dakota and had recently taken his mother to a nursing home in Martin, where ninety percent of the residents are Indian. He asked that the moratorium be lifted so that a nursing home could be built in Pine Ridge. There are people to fill a nursing home but they need Medicare and Medicaid funding. He also mentioned that Sinte Gliska College has a nursing program.

Representative Napoli responded that the moratorium does not affect nursing homes on reservations. This is the responsibility of IHS and the tribal councils need to contact the federal government for funding.

Mr. John Red Bear, Standing Rock Reservation, Ft. Yates, ND, said that nursing homes are needed on reservations. Currently, Native Americans must rely on nursing homes off the reservation and traveling is a burden and a financial drain on people.

Mr. Charlie McGuigan, Office of Attorney General, discussed law enforcement and criminal jurisdiction issues in Indian country. He said that law enforcement issues are difficult because there are three entities involved in jurisdiction; namely, the tribe, the state, and the federal government. This framework has created loopholes, which have been unable to be corrected. He reviewed the various acts and Supreme Court decisions that affect law enforcement and criminal jurisdiction on reservations (Documents 11 & 12).

Staff distributed a document describing Indian country jurisdiction in criminal cases (Document 13).

Mr. Leroy Hodge, Chair of the South Central Resource Conservation and Development District (RCD) and Ms. Theresa Bende, Executive Director of RCD, explained the proposed Hamill Dam restoration project. Hamill Dam was built under the Works Progress Administration and is on private, Indian, and county land. This is a project of the South Central Resource Conservation and Development District and the Rosebud Sioux Tribe. The estimated repair cost is $130,000; they have about half of this now.

Mr. Bob Snyder, Game, Fish and Parks, said that the environmental assessment on twenty-three recreation areas will be completed soon.

Mr. Julian Brown, General Counsel, Lower Brule Sioux Tribe, commented that there was community involvement in the decision to participate in the land transfer process, and it was part of the regular council proceedings at Lower Brule. The project is progressing; the tribe has plans for and is interested in acquiring the land.

Mr. Jesse Taken Alive, Standing Rock Sioux Tribe, said that Standing Rock did not participate in the land transfer because no public hearings were held and many questions went unanswered. He is concerned about the preservation of artifacts and human remains as the water recedes. Standing Rock did vote on the Mitigation/Land Transfer Act and the people are against it. He asked if the State-Tribal Relations Committee, staff people from the Standing Rock Sioux Tribe, and the Corps of Engineers could meet to discuss the many unanswered questions.

Mr. Darrell Drapeau, Ravinia, former chair of the Yankton Sioux Tribe, said his tribe was a part of the negotiations from the start but they could not agree on portions of the first draft. He felt that additional hearings were needed. He doesn't know whether his tribe would want to be a part of the mitigation plan.

Ms. Jeanne Koster, Peace and Justice Center, spoke against the Mitigation Act (Document 14). She supports returning additional excess Corps of Engineer lands to the respective tribes, including tribes that chose not to participate in the Land Transfer Act.

Mr. Ron Brown Otter, Ft. Yates, ND, opposes the transfer of this land under the Mitigation Act as a violation of the Treaty of 1868.

Senator Valandra urged tribal leaders and the Legislature to work together to rectify the concerns voiced today.

Representative Napoli presented a resolution requesting that Indian Tribes pay certain law enforcement and legal costs incurred by tribal members (Document 15).

Chair Benson thanked the committee for the opportunity to chair this committee. He believes the Indian people feel that they can come to this committee with their concerns and opinions.

The committee adjourned at 1:15 p.m.

All Legislative Research Council committee minutes and agendas are available on the South Dakota Legislature's Homepage (http://legis.state.sd.us).