Are Tribal Employers Subject to the Employer Mandate of the Affordable Care Act? We May Soon Have an Answer.

By: Matthew Jandrisavitz

Through The Patient Protection and Affordable Care Act, also known as Obamacare, Congress mandates that individuals must have health care unless they meet one of the few exemptions.  One of the exemptions is for members of Native American tribes receiving health care through Indian Health Services. This is just one of the numerous provisions within the Affordable Care Act that treat Native Americans differently as a result of the controversial history between the United States and Native Americans.

Another provision of the Affordable Care Act mandates that “large” employers, those that have 50 or more employees, must provide “minimum essential coverage” to their employees. If employers do not meet these requirements, they are assessed a fine known as an “Employer Shared Responsibility Payment.” It is common for a tribe to serve as the primary employer of the Indian community. Forcing Native American employers to comply with the mandate could cost a tribe such a substantial amount of money that it would damage their well-being. While the Affordable Care Act specifically addresses Native Americans in its provision for the individual mandate, it does not address how the employer provision relates to Native Americans.

In her comment about this issue, Rachel Sibila, analyzed the possibility of different outcomes based on which statutory interpretation the courts would use when deciding whether tribal employers must comply with the mandate. The canons of construction would resolve the statute in favor of the Native American employers because the statute does not address whether the employer mandate applies to them. The Coeur d’Alene rule from the Ninth Circuit, which has been receiving nationwide support for how to deal with a federal statute that is absent language in respect to Native Americans, may resolve the issue differently. The Coeur D’Alene rule states, “legislation absent express language manifesting a clear intent otherwise, will not apply to Native American tribes if (1) the law touches ‘exclusive rights of self-governance in purely intramural matters, (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties or (3) there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations.”

As to the first exception, Sibila discusses that whether the Native American employer employs non-Native Americans, or if he is engaged in commerce with non-Native Americans can decide whether the employer must comply. If it is considered a tribal matter, then the employer would be exempt from the employer mandate.  When addressing the second exception she notes numerous treaties have been enacted in recent history that create an obligation to guarantee Native Americans health services. Requiring Native American employers who are dealing in purely intramural matters to be bound by the employer mandate would abrogate these treaties. Therefore, businesses that fall within purely intramural tribal matters, should not be forced to comply with the employer mandate. In regards to the third exception, Congress does not address Native Americans with regards to the employer mandate and therefore their intent cannot be deciphered

In her comment, Sibila argues that different outcomes could be had for an employer based on whether the courts apply the canons of construction or the Coeur D’Alene rule to resolve the lack of express language in the statute.  She urges Congress to create explicit language, as to whether the exemption applies to Native Americans, as Congress has done with the individual mandate.

Shortly after the article was released, the courts and Congress were forced to address the issue. In the United States District Court for the District of Wyoming, a decision was recently handed down, on July 2, 2015, that ruled Native American employers are not exempt from the employer mandate. The court found that Congress expressly intended, in the relevant statute, that the employer mandate applied to all large employers, including Indian tribes. The court held that the statute is clear and that if Congress intended to exclude Native Americans from the employer mandate, they would have done so, just as they have done with the individual mandate.

On July 15th, 2015, just seven days after the Wyoming District Court’s decision, a bill was introduced to exempt Native American tribes and tribal employers from Obamacare’s employer mandate. The Act is known as the “Tribal Employment and Jobs Protection Act.”  The proposed legislation would exempt, as defined by statute, (1) any Indian tribal government, (2) a subdivision of an Indian tribal government, (3) an agency or instrumentality of an Indian tribal government, or (4) any tribal organization. It will be interesting to see the support that the bill gets within Congress after the recent district court decision. Most importantly, it seems as if Congress will finally speak out on the subject and put into express language whether the mandate applies to Native American employers.

Sources:

Rachel Sibila, Play or Pay: Interpreting the Employer Mandate of the Patient Protection and Affordable Care Act, 39 Am. Indian L. Rev. 235 (2014).

Timothy M. Todd, Court Holds That Tribe is Subject to ACA Large Employer Mandate, Forbes, (Jul. 9, 2015), http://www.forbes.com/sites/timtodd/2015/07/09/court-holds-tribe-subject-to-aca-large-employer-mandate/.

Tribal Employment and Jobs Protection Act, S. 1771, 114th Cong. (2015).

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