A Break from the Law: Working to Improve Tribal Health Care

I am a member of the Winnebago Tribe and was raised on the Winnebago Indian Reservation in Northeast Nebraska. At an early age, I decided I wanted to work on behalf of Native people. I figured law school would be the best route, although I was not certain at first that I actually wanted to become a practicing attorney. Because of the unique legal status of Indian tribes in the United States, I always thought the skills I would learn in law school could be helpful in whatever I ended up doing.

As a young girl, I did not have many role models, and few family members graduated from high school, let alone college. At the time, it was also not common to see women in leadership roles in my community. I eventually figured it out though, and the perseverance paid off. After a non-traditional route of starting a family, working my way through college, and finally going to law school as a divorced mother with three children, I achieved my goal of becoming an attorney.

I have now been practicing law for about 15 years. I have been very fortunate to be doing exactly what I set out to do… working on behalf of Native people and, most importantly, my own Tribe. After law school, I served as in-house counsel for my Tribe and its tribal economic development corporation. After three years, I starting working for a law firm that focused on representing tribes all over the country and became a partner soon thereafter. Through the firm, I continued to serve as counsel for my Tribe and also worked on a wide range of legal matters for a variety of tribal and non-tribal clients.

After much contemplation, I recently decided to take a sabbatical from full-time law practice to help my Tribe assume management of a troubled hospital. A bit of background and history is necessary to explain how this endeavor came about. During the 1800s, the Winnebago Tribe entered into multiple treaties with the United States. In addition to establishing the Tribe’s reservation and other obligations, the federal government promised to provide the Winnebago people with “a doctor.” Under federal law, this obligation to provide health care exists for all Native Americans through what is known as the federal trust responsibility. In recent history, this guaranteed health care has been delivered through the Indian Health Service (IHS), an agency of the U.S. Department of Health and Human Services (HHS). IHS provides health services for Native Americans on reservations and in urban areas throughout the United States.

Throughout my childhood, I, along with the rest of my family, received care at the IHS hospital in Winnebago. This included everything from routine physicals to emergency room visits. In fact, I was born in that old hospital. During the 1980s, the Winnebago IHS Hospital was put on a closure list by IHS because of financial and various other federal bureaucratic reasons. This upset many Tribal leaders, who were only a couple of generations removed from the Tribal leaders who sacrificed so much and had no choice but to enter into treaties with the United States, one of which promised health care for our people. Tribal leaders organized and began traveling to Washington, D.C. to fight a 15-year battle to keep the Winnebago hospital open.

Finally, with the help of many allies, the hospital was not only saved, but the Tribe was able to secure funding to construct an entirely new hospital facility. The new hospital facility opened its doors in 2004. It is a beautiful 13-bed hospital facility with an outpatient clinic, lab, radiology department, pharmacy, and other support services.

This victory was short-lived. Before long, the hospital, which IHS was still operating, came under scrutiny by the Centers for Medicare and Medicaid Services (CMS), another agency within HHS. CMS is responsible for administering the Medicare and Medicaid Programs, and all hospitals must be certified by CMS to receive payment for services provided by the hospital.

Between 2011 and 2015, the Winnebago IHS hospital was surveyed by CMS on seven separate occasions. Each report detailed multiple findings involving the quality of patient care, and at least five deaths were attributed to errors made by hospital personnel. On each occasion, IHS was required to implement corrective action plans. Finally, in 2015, CMS terminated the hospital’s certification for failing to meet the CMS Conditions of Participation.

In 2015, I was still serving as the Tribe’s general counsel. As the Tribe’s legal counsel, I participated with Tribal leadership in meetings with IHS. Because the Tribe and its members are direct beneficiaries of the hospital, IHS is obligated to engage in tribal consultation. This includes communicating with the Tribal leadership on a regular basis about the operation of the hospital, and certainly about matters of this magnitude.

Initially, the position of the Tribe was that the IHS should be held accountable and should fix any problems at the hospital. The Tribe demanded action, wrote letters, adopted resolutions, met with IHS and HHS leaders, participated in congressional oversight hearings, etc. IHS assured the Tribe that it was diligently working to address the certification issues and to improve the quality of health care provided by the hospital. These efforts proved to be increasingly frustrating and unproductive.

In the meantime, the Tribe had already been operating a number of health programs under Title I of the Indian Self Determination and Education Assistance Act (ISDEAA). ISDEAA is how the federal government provides funds to tribes to administer their own health programs. In 2015, the Tribe was in the preliminary stages of planning to convert its existing health programs from a Title I contract to a Title V compact under the ISDEAA’s Tribal Self-Governance Program, which would permit the Tribe to have greater control and flexibility over how its health programs are delivered. This limited-scope planning process quickly turned into bigger plans to assume management of the entire hospital, which IHS had always managed.

The decision was not easy for the leaders of the Winnebago Tribe. Some tribal members were apprehensive about the Tribe’s ability to run a hospital. Others were adamant about the federal government’s treaty and trust responsibility to provide quality health care for the Tribe, and said taking over the hospital was simply letting IHS “off the hook.” However, the bureaucracy within the IHS is not a system that is conducive to change or swift action. It also became apparent that the problems within IHS were not limited to Winnebago. IHS is a large agency headquartered in Rockville, MD, and is divided into multiple regions. Winnebago is one of 17 tribes in the Great Plains Area. Three other IHS hospitals in this area were also under CMS scrutiny and on the verge of losing CMS certification. Ultimately, the Winnebago leaders decided that the Tribe could no longer wait for IHS to do its job.

Over the course of the next three years, the Tribe commenced a planning and implementation process to put the necessary pieces in place to assume management of the hospital. As the Tribe’s general counsel, I participated and assisted extensively with this process. Countless hours were poured into strategy discussions, reviewing and analyzing documents, conference calls, meetings, congressional hearings, and final negotiations with the IHS.

One important part of this process included the recruitment of key personnel for the hospital. To maintain uninterrupted operations, the Tribe chose to offer continued employment to existing hospital staff. However, a large number of positions at the hospital were either vacant, or existing personnel did not intend to stay for one reason or another. This included the CEO position. Vacant positions were advertised and recruitment efforts began.

As the hospital assumption date drew near, I began to have discussions with members of the planning team and Tribal leaders about my role. Although I did not have previous hospital administration experience, I was deeply committed to the success of this initiative. Most importantly, I felt I had the skills to do the work that needed to be done at this stage of the operation, and the Tribal Council voted to appoint me as the executive director (now chief executive officer) of its newly established Winnebago Comprehensive Healthcare System (WCHS) in March 2018. WCHS was established to manage all of the Tribe’s health programs, including its existing public health department and the hospital that was being assumed from IHS, which has since been renamed the Twelve Clans Unity Hospital.

At midnight on July 1, 2018, IHS handed over the keys to the hospital. The Tribe held a ceremony including a prayer and traditional blessing of the building. This was a truly monumental event for the Tribe and a major undertaking for the Tribal Council, the newly appointed board of directors, the hospital team, and for me. A tremendous amount of work has been done in the past year, and a lot more work needs to be done. The goal is to not only achieve CMS certification for the hospital but to create a strong organization that truly meets the health care needs of the tribal community it serves. I have no doubt this is achievable.

My own transition from an advisor of clients to decision-maker for a large organization undergoing massive change has also been significant. I think that my work ethic and passion to do the right thing combined with strong analytical skills as an attorney have all been very helpful in my quest to move the organization forward. As an attorney, my approach to serving clients has always been very practical and solution-oriented. From the business and organizational perspective, another kind of pragmatism and judgment is necessary on a day-to-day basis. Having direct experience working in an industry you serve is likely an experience from which many attorneys could benefit. Sometimes we have to be willing to step into new roles to make positive changes in our world.

I feel very fortunate to be doing the work I am doing. Indian tribes did not always have advocates with a vested interest in the outcome of their issues, whether it be negotiating a contract or managing a health care organization. In addition, it might very well be that a young girl will see me, along with the increasing number of educated women in our community, and she will believe she can achieve her goals, too. As for my future, I will likely return to the full-time practice of law at some point. But, for now, I am where I need to be.

About the Author

Danelle J. Smith is the CEO of the Winnebago Comprehensive Healthcare System and is a partner in Big Fire Law & Policy Group LLP, a law firm focused on representing and advising Native American tribes and tribal organizations.

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