In a Divided Fiscal Climate, House Advances Interior Bill with Advance Appropriations and a Modest Increase for Indian Health Service

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The bill advanced to the Full Committee on Wednesday and includes $7.078 billion for IHS, $2.6 billion less than the amount requested by the President.

On July 18, 2023, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies released the Committee Bill Report for the fiscal year (FY) 2024 budget with $115,156,000 for Urban Indian health. The bill appropriates $25.4 billion for Interior, Environment, and Related Agencies, which is $13.4 billion below the fiscal 2023 levels and $21.3 billion below the Biden Administration’s request.  However, the bill rescinds $9.37 billion in funding for programs established in  the Inflation Reduction Act, resulting in the final program level of $34.79 billion. Despite the sizeable cut to the Interior, Environment, and Related Agencies bill and reducing funding for nearly every account to below FY23 enacted levels, the Indian Health Service (IHS) received a 2.2% increase.

The report and bill were approved by the House Subcommittee on Interior on July 13, 2023 and approved with amendments by the full House Appropriations Committee on July 19, 2023. The bill authorizes $7.078 billion for IHS— an increase of $149 million from FY23 but $2.6 billion below the President’s request. Advance appropriations for IHS was maintained for FY25 and received an increase to $5.8 billion from $4.9 billion in FY24. Other key provisions include: $3 million for generators at IHS/Tribal Health Programs/Urban Indian Organizations (UIOs), $6 million for the Produce Prescription Pilot Program for Tribes and UIOs to increase access to produce and other traditional foods, as well as $35 million for Tribal Epidemiology Centers (TECs). A more detailed analysis follows below.

“While the proposed funding for Indian health by the House falls short of the full funding amount requested by the Tribal Budget Formulation Workgroup, NCUIH is grateful for the Committee’s commitment to securing funding for IHS with advance appropriations in Fiscal Year 2025 at the Fiscal Year 2024 enacted amount. We thank Chair Mike Simpson and Ranking Member Chellie Pingree for their continued efforts to ensure that Native lives are not at-risk because of funding disputes.” – Francys Crevier (Algonquin), CEO, National Council of Urban Indian Health (NCUIH).

Bi-Partisan Support for IHS Funding and Advance Appropriations in Bill Hearing

On July 19, 2023, the House Appropriations Committee completed the markup of the FY24 Interior, Environment, and Related Agencies bill.  The bill was passed out of committee 33 to 27 and referred to the House Floor.  The Majority Leadership will now work to schedule the bill for a vote on the House floor. They will also work with Senate Leadership to negotiate a final bill text for passage in both chambers. The Senate Appropriations Committee has scheduled a markup for the Senate FY24 Interior, Environment, and Related Agencies bill for July 27, 2023, at 10:30a.m.

During the Full Appropriations Committee markup, Representative Mike Simpson (R-ID-2) expressed his commitment to providing stable funding for IHS, “I am pleased that the bill provides a fiscal year 2025 advance appropriation for the Indian Health Service and it’s very important that we do that. I made a commitment from the start of this that we were not going to balance this budget on the backs of our Indian brothers and sisters, and we kept that commitment in this bill. It is a bipartisan commitment. We have a moral and a trust responsibility to the Indians of this country, and we need to make sure that we are trying to address that. We still have a long way to go, but we are moving in the right direction.”

“This is an extraordinarily good bill from a Native American standpoint. I was quite shocked; I go through these bills very carefully cause that’s a passionate area of interest. I want to thank all four current chairmen and the 3 former chairmen for working together. Chairman Simpson started us on this course of trying to begin to address many, many years of neglect and broken treaty responsibilities. The members on both sides of the aisle have been enormously helpful with this… in particular I want to thank the Chairman for keeping in advance appropriations for the Indian Health Service which is absolutely critical. There was a situation where whenever we had a government shutdown or differences, we shut down healthcare systems on reservations. It is the only healthcare system we have that gets almost all of its money from discretionary dollars. That was extraordinary,” – Representative Tom Cole (R-OK-4).

 “…I think we made great, great, strides and I am so excited about our opportunity with the Indian Health Service, which we know is in desperate need for federal assistance to get it in the place where people can continue to get their healthcare,” – Representative Rosa DeLauro (D-CT-3).

Line Item FY23 Enacted FY24 TBFWG Request FY24 President’s Budget FY24 House Proposed
Urban Indian Health $90,419,000 $973,590,000 $115,150,000 $115,150,000
Indian Health Service $6,958,223,000 $50,996,276 $9,700,000,000 $7,078,223,000
Advance Appropriations $5,129,458,00 $9,100,000,000 $5,129,458,00 $5,878,223,000

 

Background and Advocacy

On March 9, 2023, President Biden released his budget request for FY24 which included $9.7 billion for IHS and proposed mandatory funding for IHS from FY 2025 to FY 2033 to the amount of $288 billion over-ten years as well as exempting IHS from sequestration. This mandatory formula would culminate in $44 billion for IHS in FY 2033, to account for inflation, staffing increases, long-COVID treatment, and construction costs. This move from discretionary to mandatory funding is essential as noted in the IHS Congressional Justification, “While the progress achieved through the enactment of advance appropriations will have a lasting impact on Indian Country, funding growth beyond what can be accomplished through discretionary spending is needed to fulfill the federal government’s commitments to Indian Country.” On March 17, 2023, IHS published their Fiscal Year (FY) 2024 Congressional Justification with the full details of the President’s Budget, which includes $115 million for urban Indian health – a 27% increase above the FY 2023 enacted amount of $90.42 million.

Full Funding, Maintain Advance Appropriations, and Mandatory Funding as Priorities

NCUIH requested full funding for urban Indian health for FY 2024 at $973.59 million for urban Indian Health in FY24 in accordance with the Tribal Budget Formulation Workgroup recommendations. NCUIH also requested that advance appropriations be maintained for the Indian Health Service (IHS) until mandatory funding is achieved. The marked increase for FY24 is a result of Tribal leaders, over several decades, providing budget recommendations to phase in funding increases over 10-12 years to address growing health disparities that have largely been ignored.

On March 9, 2023, NCUIH CEO Francys Crevier (Algonquin), testified before and submitted public witness written testimony to the House Appropriations Subcommittee on Interior, Environment, and Related Agencies regarding FY 2024 funding. NCUIH requested full funding for IHS at $51.41 billion and Urban Indian Health for FY 2024 as requested by the Tribal Budget Formulation Workgroup (TBFWG), maintain advance appropriations for IHS, and support of mandatory funding for IHS.

NCUIH recently worked closely with Representatives Gallego and Grijalva on leading a Congressional letter to the House Committee on Appropriations for FY 2024. The letter has bipartisan support and calls for support for Urban Indian Health based on the TBFWG’s recommendation and to maintain advance appropriations for IHS until such time that authorizers move IHS to mandatory spending. On April 4, 2023, a group of 12 Senators sent a letter to the Senate Interior Appropriations Committee with the same requests.

Bill Highlights

Indian Health Service: $7.078 billion

  • Bill Report, Pg.2 : “The bill provides $2,582,452,000 for the Bureau of Indian Affairs (BIA), $1,399,504,000 for the Bureau of Indian Education (BIE), and $7,078,223,000 for the Indian Health Service (IHS) in funding available in fiscal year 2024.”

Urban Indian Health: $115 million

  • Bill Report, pg. 90: “The bill includes $115,156,000 for this program, which will help to expand access to urban Indian program care services.”

Mandatory Funding: Contract Support Costs and Tribal 105(l) leases

  • Bill Report, pg. 44: ” The Committee recommends an indefinite appropriation estimated to be $342,000,000 for contract support costs incurred by Indian Affairs as required by law and does not include the Administration’s mandatory proposal”
  • Bill Report, pg. 44 :” The Committee recommends an indefinite appropriation estimated to be $64,000,000 for Payments for Tribal Leases incurred by Indian Affairs as required by law and does not include the Administration’s mandatory proposal”
  • The Biden Administration included Contract Support Costs and Tribal 105(l) leases as mandatory costs. The Committee outlined in the bill report, “It does not include the Administration’s proposal to make these costs mandatory.”
    • NCUIH along with 22 other Tribes and Native organizations advocated for these tribal sovereignty payments as mandatory in a letter to Congressional appropriators.

Dental Health: $288 million

  • Bill Report pg. 88: “The recommendation includes $288,230,000 for the Dental Health program, including $8,844,000 for staffing at new facilities and $31,288,000 to expand access to dental care.”

Equipment: $42 million

  • Bill Report, pg. 91: “The recommendation continues $500,000 for TRANSAM and provides an increase of $10,264,000 above the fiscal year 2023 level for additional medical equipment at Federally and Tribally-operated healthcare facilities.”
  • Bill Report , pg. 91: “The recommendation directs IHS to continue to use at least $3,000,000 to purchase generators for IHS, Tribal Health Programs, and Urban Indian Organizations in areas impacted by de-energization events.”

Electronic Health Records:

  • Bill Report, pg. 88: “The bill reduces funding for the Electronic Record Health System below the 2023 level to fund the required new staffing increases and other patient care initiatives. The Committee recognizes the importance of this project but is concerned about the overall cost and schedule of the project. The bill continues language prohibiting IHS from obligating or expending funds to select or implement a new IT infrastructure system unless IHS notifies the Committee at least 90 days before such funds are obligated or expended.”

Mental Health: $130 million

  • Bill Report, pg. 89: “The Committee provides $130,864,000 for Mental Health, including $3,693,000 for staffing at new IHS facilities.”

Alcohol and Substance Abuse: $276 million

  • Bill Report, pg. 87: “The Committee provides $267,194,000 for this program, including $754,000 for staffing at new IHS facilities.”

Produce Prescription Pilot Program: $6 million

  • Bill Report,pg. 89: “The recommendation includes $6,000,000 for IHS to maintain, in coordination with Tribes and Urban Indian Organizations (UIOs), the pilot program to implement a produce prescription model to increase access to produce and other traditional foods among its service population.”

Tribal Epidemiology Centers: $35 million

  • Bill Report, pg. 89: “The Committee recognizes the importance of TECs which conduct epidemiology and public health functions critical to the delivery of health care services for Tribal and urban Indian communities. The recommendation includes $35,000,000 for TECs.”

Maternal Health: $10 million

  • Bill Report, pg. 89: “The recommendation includes $3,000,000 above the fiscal year 2023 level to improve maternal health. The Committee directs IHS to provide a briefing within 180 days of enactment of this Act on the use of funds including hiring and staff training.”

Alzheimer’s Disease: $6 million

  • Bill Report pg. 87: “The recommendation includes $6,000,000 to continue Alzheimer’s and related dementia activities.”

CMS Releases Medicaid Unwinding FAQs Document

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On May 12, 2023, the Centers for Medicare and Medicaid Services (CMS) released a frequently asked questions (FAQs) document regarding changes made to the Medicaid continuous enrollment condition under the Families First Coronavirus Response Act (FFCRA) by the Consolidated Appropriations Act 2023 (CAA, 2023). Key topics addressed in the FAQs include questions relating to the CAA, 2023 returned mail condition for states claiming the increased FMAP available under the FFCRA, reestablishment of premiums in Medicaid and CHIP, renewal requirements for individuals who receive Social Security Income, and Medicaid and CHIP agency capacity to share beneficiary data with enrolled providers to support renewals.

 These FAQs clarify other CMS guidance most recently released in the January 5, 2023 CMCS Informational Bulletin and January 26, 2023 State Health Official letter #23-002.

Background

On Thursday, December 29, 2022, Congress enacted the Consolidated Appropriations Act, 2023 (CAA, 2023). CAA, 2023 includes various Medicaid and Children’s Health Insurance Program (CHIP) provisions, including significant changes to the continuous enrollment condition at section 6008(b)(3) of the Families First Coronavirus Response Act (FFCRA) that took effect April 1, 2023. Under this section of the FFCRA, states claiming a temporary 6.2 percentage point increase in the Federal Medical Assistance Percentage (FMAP) have been unable to terminate enrollment for most individuals enrolled in Medicaid as of March 18, 2020, as a condition of receiving the temporary FMAP increase. Currently, states must, over time, return to normal eligibility and enrollment operations. States will have up to 12 months to initiate, and 14 months to complete, a renewal for all individuals enrolled in Medicaid, CHIP, and the Basic Health Program (BHP) following the end of the continuous enrollment condition— this process is commonly referred to as “unwinding”.

Under the Consolidated Appropriations Act 2023 (CAA, 2023) expiration of the continuous enrollment condition and receipt of the temporary FMAP increase will no longer be linked to the end of the Covid-19 public health emergency. The continuous enrollment condition ended on March 31, 2023. Beginning April 1, 2023, the FFCRA’s temporary FMAP increase will be gradually reduced and phased down and will end on December 31, 2023. Additionally, as of April 1, 2023, states have been able to terminate Medicaid enrollment for individuals no longer eligible.

Medicaid Unwinding and UIOs

During this unwinding, 12% of all AI/AN children and 6% of all AI/AN adults nationwide are expected to lose CHIP or Medicaid coverage. Urban Indian Organization (UIO) Medicaid beneficiaries may lose their Medicaid coverage as result of the unwinding. The National Council of Urban Indian Health (NCUIH) is helping to mitigate this. It released a Medicaid unwinding toolkit for UIOs in December 2022. On April 24, 2023, NCUIH, in collaboration with the Asian & Pacific Islander American Health Forum, the Coalition on Human Needs, The Leadership Conference on Civil and Human Rights, the National Association for the Advancement of Colored People, National Urban League, Protect Our Care, UnidosUS and 220 other organizations, sent a letter to the Department of Health and Human Services (HHS) Secretary Xavier Becerra. In it, the coalition of organizations called on the Administration to use the full extent of its authorities to safeguard Medicaid coverage and outlined specific steps the Administration can take to avoid wrongful terminations.

See NCUIH’s COVID-19 Public Health Emergency Medicaid Unwinding Toolkit for more information on Medicaid unwinding, its impact on UIO Medicaid beneficiaries and additional resources: https://ncuih.org/2022/12/05/resource-covid-19-public-health-emergency-medicaid-unwinding-toolkit-released/.

Commonwealth Fund’s 2023 Scorecard Reveals Alarming Disparities In Maternal Health For Native Communities Across The US

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On July 22, 2023, the Commonwealth Fund released a Scorecard ranking every state’s health care system based on how well it provides high-quality, accessible, and equitable health care. The Commonwealth Fund’s 2023 Scorecard on State Health System Performance includes a new dimension focused on Reproductive Care and Women’s Health, which measures health outcomes and access to important services for women, mothers, and infants – including for American Indians and Alaska Natives (AI/ANs). The Scorecard reports high and increasing rates of maternal mortality, with AI/AN women facing the highest rates of maternal mortality during the pandemic. Due to barriers such as cost, discrimination, and lack of cultural competency, AI/AN communities throughout the country, including urban AI/AN communities, experience significant maternal and infant health disparities compared to the general population.

U.S. maternal mortality rate graph

According to the Scorecard, the maternal death rate for AI/AN women jumped by nearly 70 deaths per 100,000 live births between 2019 and 2021, putting them well above other racial and ethnic groups. Among the likely causes were the greater burden of COVID-19 in AI/AN communities; higher rates of poverty, food insecurity, and other social risk factors; and disparities in insurance coverage and quality of care.

The convergence of the prolonged pandemic, existing maternal mortality crisis, and barriers to reproduce healthcare access, including the overturning of Roe v. Wade, poses significant challenges for women’s health, especially AI/AN women. Restrictive abortion laws and poor health outcomes are correlated, and there is concern that existing gaps in reproductive care may widen in the future. AI/AN women face challenges in accessing timely and affordable healthcare and are affected by the behavioral health crisis and the lingering effects of COVID-19.

AI/AN Maternal and Infant Health Disparities

According to the Office of Minority Health (OMH), Native infants have almost twice the infant mortality rate as non-Hispanic whites.  Native infants are also almost three times more likely than non-Hispanic whites to die from accidental deaths before the age of one year. Contributing factors to these disparities include cost, discrimination, and lack of cultural competency during prenatal care. Additional ongoing and historical trauma due to colonization, genocide, forced migration, and cultural erasure also contribute to health inequities, including pregnancy-related deaths and other maternal health conditions. Approximately 41% of AI/AN women cite cost as a barrier to receiving the recommended number of prenatal visits and 23% of AI/ANs report they have faced discrimination in clinical settings due to being an AI/AN. Consequently, AI/AN people are more likely to have underlying chronic health conditions, and they face systemic barriers to care including higher rates of poverty and needing to travel long distances to receive quality health care services.

NCUIH and UIO Work on AI/AN Maternal and Infant Health.

UIOs provide a range of services such as primary care, behavioral health, traditional, and social services— including those for infants, children, and mothers. At least 23 of these clinics provide care for maternal health, infant health, prenatal, and/or family planning. They also provide pediatric services and participate in maternal-child care programs such as WIC and the Health Resources and Services Administration (HRSA) Maternal, Infant, and Early Childhood Home Visiting program (MIECHV).

The National Council of Urban Indian Health (NCUIH) has engaged in extensive advocacy on behalf of AI/AN mothers and infants and for increased funding and support to the UIOs which provide maternal health, infant health, prenatal, and family planning services to AI/AN mothers and infants.  In March 2022, NCUIH signed onto a letter to Congress led by the National Home Visiting Coalition in support of reauthorizing HRSA’s MIECHV program and doubling the Tribal set-aside – which includes UIOs. Earlier this year, NCUIH submitted comments to the Administration for Children and Families (ACF) recommending that ACF ensure urban Native communities are participating in the Tribal MIECHV program by hosting an Urban Confer with UIO leaders to discuss the program and working with its colleagues at IHS to host and facilitate an Urban Confer on the annual reporting requirements. Additionally, in August 2022, NCUIH submitted comments to the HRSA Maternal and Child Health Bureau (MCHB) regarding the Pediatric Mental Health Care Access Program. In our comments, we have continued to stress the critical importance of including urban Native populations in HRSA’s overall efforts to improve health outcomes for all AI/ANs living on and off reservations.

NCUIH has also worked closely with HRSA’s Advisory Committee on Infant and Maternal Mortality (ACIMM) on AI/AN maternal and infant health issues. On September 14, 2022, NCUIH’s Vice President of Policy and Communications, Meredith Raimondi, testified before the HRSA ACIMM on urban Indian disparities and policy changes to address these disparities, and on December 7, 2022, the NCUIH provided recommendations to the ACIMM to ensure the needs of off-reservation AI/AN mothers were included in their report to the Department of Health and Human Services (HHS) Secretary Xavier Becerra titled: “Making Amends: Recommended Strategies and Actions to Improve the Health and Safety of American Indian and Alaska Native Mothers and Infants”.

 

CMS Released Medicaid and CHIP Mental Health and Substance Use Disorder Action Plan and Overview Guide

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On July 25, the Centers for Medicare & Medicaid Services (CMS) released the Medicaid and CHIP Mental Health (MH) and Substance Use Disorder (SUD) Action Plan Overview and Guide, which outlines the agency’s strategies for improving treatment and support for enrollees with these conditions. Areas of focus include improving coverage and integration to increase access to prevention and treatment services, encouraging engagement in care through increased availability of home and community-based services and coverage of non-traditional services and settings, and improving quality of care for MH conditions and SUDs. The areas target issues that impact American Indians and Alaska Natives such as improving coverage of mental health and substance abuse disorder screening and therapies and promoting parity by supporting connection to health care coverage.  

  • Access the Action Plan Overview here. 
  • Access the Action Plan Guide here. 

Background 

The Action Plan is CMS and CHIP’s latest step in addressing MH and SUD. In March 2016, CMS finalized a rule targeting MH and SUD parity. The goal of the rule was to benefit the over 23 million people enrolled in Medicaid managed care organizations (MCOs), Medicaid alternative benefit plans (ABPs), and CHIP. It required plans to disclose information on MH and SUD benefits upon request- including the criteria for determinations of medical necessity- and required states to disclose the reason for any denial of reimbursement or payment for services with respect to MH and SUD benefits. 

NCUIH’s Advocacy 

NCUIH advocates on behalf of urban Indian organizations (UIOs) and urban American Indians and Alaska Natives to raise awareness of the impacts of MH conditions and SUDs in American Indian and Alaska Native communities. NCUIH outlined the disproportionately high rates of MH conditions and SUDs among American Indians and Alaska Natives in its 2023 Policy Priorities. To address this, NCUIH continues to urge Congress to appropriate $80 million for Behavior Health and Substance Abuse Disorder Resources for American Indians and Alaska Natives, which was authorized in the Fiscal Year 2023 omnibus. NCUIH also advocates for expanding access to traditional healing services at UIOs. NCUIH also recommends Congress remove funding restrictions in grants to allow for traditional healing services at UIOs, that HHS review its existing policies concerning use of federal funding, and that federal agencies engage with UIOs directly to support expansion of traditional healing services.  

NCUIH will continue to advocate on behalf of UIOs and American Indians and Alaska Natives to receive culturally based care to address their MH conditions and SUDs. 

CMS Releases Guidance On Mandatory Coverage Requirements For Adult Vaccines

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On June 27, the Centers for Medicaid and Medicare Services (CMS) released guidance on mandatory coverage requirements for adult vaccines (section 11405 of the Inflation Reduction Act (IRA) (Pub. L. 117-169)). In August 2022, President Biden signed the IRA of 2022 (P.L. 117-169) into law. The IRA amended the Medicaid and Children’s Health Insurance Program (CHIP) statutes to require Medicaid and CHIP coverage and payment without cost sharing beginning October 1, 2023, for U.S. Food and Drug Administration (FDA) approved adult vaccines recommended by the Advisory Committee on Immunization Practices (ACIP) and their administration.

Read the full guidance here: https://www.medicaid.gov/federal-policy-guidance/downloads/sho23003.pdf

Overview of Guidance

State Medicaid and CHIP programs must cover vaccines that are approved by the FDA for use by adult populations and administered in accordance with ACIP recommendations. CMS does not interpret the IRA-required coverage to include vaccines that FDA has authorized for use under emergency use authorization but has not approved. CMS interprets the statutory references to “adults” to mean persons age 19 and older. This coverage requirement will go into effect on October 1, 2023, and applies in both fee-for-service and managed care. Also, effective October 1, 2023, the statutory amendments made by the IRA modify the requirements that states must meet in order to claim a one percentage point increase in the federal medical assistance percentage (FMAP) for certain services described in sections 1905(a)(13)(A) and (B) and 1905(a)(4)(D) of the Social Security Act (the Act).

Background on the IRA and Adult Vaccines

Prior to the effective date of the IRA’s amendments, Medicaid coverage of vaccines and vaccine administration is mandatory in certain circumstances; otherwise, coverage is at a state’s option. Coverage varied based on age, health history, and recommendations from ACIP. Medicaid programs were also required to cover COVID-19 vaccines and their administration under the American Rescue Plan Act. Additionally, states could choose to cover adult vaccines recommended by ACIP and claim a one percentage point FMAP increase.

Section 1905(a)(13)(B) of the Act defines the covered services as approved vaccines recommended by the ACIP and their administration. The coverage applies to FDA-approved vaccines for use in adult populations and administered in accordance with ACIP recommendations.

July Policy Updates: Interior Bill & IHS Funding, Supreme Court Updates, and Important Dates

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Welcome to the July edition of our monthly policy newsletter, delivering the latest updates and insights on key developments.

1 Big Thing: House Advances Interior Bill with Advance Appropriations and a Modest Increase for Indian Health Service

Interior Bill 2024

On July 18, 2023, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies released the Committee Bill Report for the fiscal year (FY) 2024 budget.

  • IHS Funding: The bill would authorize $7.078 billion for the IHS for FY24. That’s $149.4 million of the FY23 enacted level.
  • Advance Appropriations: The bill also provides $5.878 billion in advance appropriations for FY 2025.​
  • Urban Indian Health: Includes the President’s proposed amount of $115.156 million for urban Indian health for FY24.
  • CSC and Tribal Leases: The Subcommittee rejected the administration’s proposal and Tribal requests to make contract support costs and Tribal leases mandatory spending.​
  • The full Committee held a markup on July 19 and approved the FY 2024 Interior appropriations bill by a vote of 33 to 27. ​

What they’re saying: Rep. Mike Simpson (R-ID-2) on the Interior Markup:

“I am pleased that the bill provides a fiscal year 2025 advance appropriation for the Indian Health Service and it’s very important that we do that. I made a commitment from the start of this that we were not going to balance this budget on the backs of our Indian brothers and sisters, and we kept that commitment in this bill. It is a bipartisan commitment. We have a moral and a trust responsibility to the Indians of this country, and we need to make sure that we are trying to address that. We still have a long way to go, but we are moving in the right direction.”

What’s next: The bill has now passed out of committee and referred to the House floor. The Senate will be marking up the Interior Appropriations bill on July 27 at 10:30 a.m.

Go deeper:

Partnership and Advocacy: Tribal Sovereignty Payments for FY 2024

Partnership

On July 12, 2023, NCUIH joined the National Indian Health Board (NIHB) and 21 Tribal Nations and Native partner organizations in sending a letter to House and Senate leadership regarding the Administration’s proposed FY 2024 Interior, Environment, and Related Agencies Appropriations Bill. The letter expresses support for the President’s FY 2024 proposal to reclassify Contract Support Costs and Section 105(l) Tribal Lease Payments as mandatory appropriations and to increase program administration staff. The letter also urges Congress to include the proposal in their FY 2024 Interior bill.

Supreme Court Updates

Illustration of two gavels forming an x in front of the Supreme Court building

Department of Interior v. Navajo Nation​

  • On June 22, the Court held in a 5-4 decision that while the treaty establishing the Navajo Reservation reserved the necessary water to accomplish the purpose of the Navajo Reservation, it did not require the United States to take affirmative steps to secure water for the Tribe.​​
  • This means that the government does not have an enforceable trust responsibility to secure water for the Tribe under the Treaty.​​
  • Relation to UIOs: This holding further limits the scope of the enforceability of the trust responsibility.​​

Upcoming SCOTUS Cases for the 2023 term:

Loper Bright Enterprises v. Raimondo

  • Case out of the D.C. Circuit, granted cert by SCOTUS in April.
  • This case centers around whether a foundational case in Administrative Law, Chevron v. Natural Resources Defense Council, should be overruled. Under Chevron, a court must defer to a federal agency’s interpretation of an ambiguous statute so long as the agency’s interpretation is reasonable.
  • If Chevron were to be overruled, federal agencies will be much more vulnerable to lawsuits for statutory interpretations as courts would no longer have to defer to an agency’s “reasonable” interpretation. This could cause a patchwork of enforceability for agency actions across circuits depending on the judicial interpretation. ​
  • Relation to UIOs: If the Court decides to overrule Chevron, it would likely affect federal policies and programs and how federal agencies interact with UIOs regarding such policies and programs. ​

United States v. Rahimi

  • Case out of the 5th. Circuit, granted cert by SCOTUS in June.
  • This case centers around whether a federal law that prohibits the possession of firearms by persons subject to domestic violence restraining orders violates the Second Amendment.​
  • Relation to UIOs: If the Court determines that the law does violate the second amendment, it could loosen protections for persons who have filed domestic violence restraining orders in certain jurisdictions. This could potentially have an effect on UIO domestic violence work as well as work relating to Missing and Murdered Indigenous Peoples.

NCUIH Provides Comments on IHS Mandatory Funding & Access to Medicaid​​

IHS

On June 30, NCUIH submitted comments to the Office of Management and Budget (OMB) in support of IHS Mandatory Funding.

On July 3, NCUIH submitted comments to the Centers for Medicaid and Medicare Services (CMS) on Ensuring Access to Medicaid​.

Our thought bubble: NCUIH recommended that CMS take the following actions:​

  • Ensure AI/AN representation on each state Medicaid Advisory Committee (MAC) and Beneficiary Advisory Group (BAG)​.
  • Ensure the rule does not impose additional burdensome reporting requirements on providers​.
  • Engage with the Tribal Technical Advisory Committee (TTAG) to consider regulations or guidance to enforce the state consultation and confer requirements​.
  • Support 100% Federal Medical Assistance Percentage (FMAP) for Medicaid services provided at UIOs to ensure AI/AN Medicaid beneficiaries receive appropriate, quality culturally competent care​.

Upcoming Comments and Submissions​:

  • August 21 – Comment deadline to the Department of Veterans Affairs (VA) Request for Data Information on Minority Veterans​.

NCUIH Research Project Update

NCUIH

NCUIH Federal Relations Manager Alexandra Payan and Research Associate Nahla Holland gave updates to CMS Office of Minority Health on NCUIH’s NORC reports and research on PCCM programs/IMCEs and traditional healthcare practices at UIOs.

NCUIH is currently participating in its third year of a research project commissioned by CMS through a contract with NORC at the University of Chicago.​

This year’s report provides an analysis of two topics:​

  • Primary Care Case Management (PCCMs) and Indian Managed Care Entities (IMCEs)​
  • Traditional Health Care Practices​

What’s next: CMS has invited NCUIH to present the report findings during the July 2023 in-person TTAG meeting in Washington DC.

Upcoming Events and Important Dates

Calendar with events on it

Upcoming Opportunities:

  • The VA Office of Tribal Government Relations (OTGR), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Tribal and Indian Affairs (“the Committee”) to represent the following IHS Areas: Bemidji; California; Great Plains; Nashville; Navajo; Tucson. Nominations for membership on the Committee must be received no later than 5:00 PM Eastern on August 1, 2023, and should be mailed to OTGR at 810 Vermont Ave. NW, Suite 915H (075) or emailed to tribalgovernmentconsultation@va.gov. Individuals interested in participating in this Committee and who are located in the open IHS areas should work with local Tribes and tribal organizations to be nominated.
  • The VA extended eligibility for VA health care for certain Veterans of the Vietnam, Gulf War, and post-9/11 eras pursuant to the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics (PACT) Act. SUBMIT your PACT Act claim by August 9 to be eligible for backdated benefits back to August 10, 2022.
  • On June 29, 2023, IHS Director Roselyn Tso released a Dear Tribal Leader Letter and Dear Urban Indian Organization Leader Letter giving an update on the IHS Health Information Technology (HIT) Modernization by sharing an opportunity for interested Tribal and UIOs sites to become directly involved in the collaborative planning for the new IHS enterprise electronic health record (EHR) solution. Interested UIOs are encouraged to complete and submit a Statement of Interest form by e-mail to modernization@ihs.gov and cc Policy@ncuih.org. There is no deadline for submitting the form.

Upcoming Events:

  • July 20​- Medicare, Medicaid, and Health Reform Policy Committee (MMPC) Regulations Workgroup Meeting​
  • July 25​- MMPC Face-to-Face Prep Session for TTAG Meeting (in-person)​
  • July 26-27​- CMS TTAG Face-to-Face Meeting (in-person)​
  • July 27​- IHS Urban Program Executive Directors/Chief Executive Officers Monthly Conference Call​
  • August 1​- NCUIH Board of Directors Meeting
  • August 2​- Tribal Consultation/Urban Confer: Health IT Modernization Leaders Engaging in Governance​
  • August 2-3​- Not Invisible Act Commission National Virtual Hearing​
  • August 3​- MMPC Regulations Workgroup Meeting​
  • August 16​- FY25-FY26 Tribal Budget Formulation Planning and Evaluation Meeting (Hybrid)​

ICYMI:

On June 20-21, IHS National Tribal Advisory Committee (NTAC) on Behavioral Health led a meeting​:

  • Dr. Segay, Director of the Division of Behavioral Health (DBH), noted that sections of the Indian Health Manual are being updated, specifically in sections focused on mental and behavioral health. ​

On June 30, CMS held a meeting with TTAG and STAC regarding the Four Walls Fix​:

  • CMS is considering revising its clinical regulations to tackle the Four Walls limitation, with the grace period for providing services outside of the clinic extended until Feb. 2025, but there are no guarantees regarding the outcomes as it may not be achievable through regulation.​

On July 11, IHS held a meeting on the Overview of the Updated Policy on Conferring with UIOs:

  • IHS will prepare a report to the UIOs with confer satisfaction results. The IHS will document and follow up on any unresolved issues that would benefit from the ongoing involvement of the affected UIO upon the completion of any of the conferring activities. ​
  • Documentation of the conferring process and outcome will be maintained by the Office of Urban Indian Health Programs Headquarters office and area offices in which the affected UIOs are located​.

On July 13, IHS held a July Tribal and UIO Leaders Call:

  • The next Tribal and UIO leader call is set for August 3, 2023, and the 2023 IHS Partnership Conference will take place in Atlanta, GA, from August 22-24, 2023, with registration available until August 9th​.
  • There are also new Area Directors appointed, ongoing Covid-19 supplemental appropriations, and specific requirements outlined in the Fiscal Responsibility Act for FY 2024 and FY 2025 appropriations, including the need for Congress to pass full-year versions of all 12 appropriations bills by January 1, 2024.​

Strengthening Relationships and Building Community at NCUIH

Tester and Rogers

Senator Tester and NCUIH Summer Intern Tyler Rogers

On June 20, NCUIH attended the Poarch Band Creek Indians Legislative Reception.

Denver Indian Health and Family Services

Denver Indian Health and Family Services welcomes NCUIH!

NCUIH held its All Staff Retreat in Denver, Colorado from July 10-14 and staff visited the UIO, Denver Indian Health and Family Services.

NCUIH staff at Denver UIO

ncuih wellness activity

NCUIH staff participate in a cultural wellness activity hosted by the Denver UIO.

ncuih staff at red rocks

NCUIH Staff Photo

NCUIH visits Red Rocks Park in Denver.

Thank you for all your hard work and advocacy!

Health Information Technology Modernization Update: IHS requests statements of Interest from Tribes and Urban Indian Organizations

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On June 29, 2023, Indian Health Service (IHS) Director Roselyn Tso released a Dear Tribal Leader Letter and Dear Urban Indian Organization Leader Letter giving an update on the IHS Health Information Technology (HIT) Modernization by sharing an opportunity for interested Tribal and Urban Indian Organization (UIOs) sites. Specifically, Tribal and UIO sites can become directly involved in the collaborative planning for the new IHS enterprise electronic health record (EHR) solution. IHS is requesting sites that may wish to participate with the IHS on shared enterprise solution planning efforts to complete and submit the Statement of Interest form. This non-binding Statement of Interest will help the IHS understand which sites are interested in becoming part of the IHS enterprise EHR solution partnership. It asks for limited details about those organizations, such as facility size, current EHR utilization, and point(s) of contact. Interested UIOs are encouraged to complete and submit Statements of Interest by e-mail to modernization@ihs.gov and cc Policy@ncuih.org.

There is no deadline for submitting the form. The IHS IT Modernization Program Management Office will reach out to organizations that provide the Statement of Interest to learn more about their facilities, services, and staffing that may need to be supported by the new EHR system. There will also be opportunities for subject matter experts from your organizations to provide individual input in their areas of expertise regarding the configurations and workflows that the new system should provide.

If you have questions, please contact Mr. Mitchell Thornbrugh, Chief Information Officer, IHS, by telephone at (240) 620-3117, or by e-mail at mitchell.thornbrugh@ihs.gov.

Background

HIT “is a broad concept that encompasses an array of technologies to store, share, and analyze health information.” This includes, but is not limited to, “the use of computer hardware and software to privately and securely store, retrieve, and share patient health and medical information.”  HIT Modernization for the IHS, Tribal organization, and urban Indian organization (I/T/U) system is long overdue. Although HIT is necessary to provide critical services and benefits to American Indian and Alaska Native patients, the IHS has historically faced challenges in managing clinical patient and administrative data through the Resource Management System (RPMS). Initially developed specifically for the IHS, years of underfunding and a resulting failure to keep pace with technological innovation have left the RPMS impractical by current HIT standards. RPMS has been in use for nearly 40 years and has developed significant issues and deficiencies during this time, especially in recent years as HIT systems have rapidly advanced in sophistication and usefulness. As the Department of Health and Human Services (HHS) Office of the Chief Technology Officer (OCTO) and IHS found in the 2019 Legacy Assessment, systemic challenges with RPMS “across all of the IHS ecosystem currently prevent providers, facilities and the organization from leveraging technology effectively.”

The National Council of Urban Indian Health (NCUIH) is aware that technological tools cut across all UIO operational areas—from clinical and medical technology and telemedicine to accounting, payment system processes, marketing, and outreach. Since its foundation, NCUIH has fostered and participated in national initiatives involving technology as a medium to improve both the sustainability of the UIOs as well as the well-being of the population they serve. Likewise, NCUIH strives to ensure the technology available to collect the most accurate data from its programs.

NCUIH has submitted several written comments to IHS on HIT Modernization. NCUIH also submitted written testimony to the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies regarding the Fiscal year (FY) 2024 funding for UIOs in which NCUIH requested increased funding for EHR Modernization. Specifically, NCUIH requested support for the IHS’ transition to a new EHR system for IHS and UIOs by supporting the President’s budget request of $913 million in FY 2024 appropriations.

NCUIH will continue to closely follow IHS’s progress and policies with HIT Modernization.

NCUIH Joins NIHB and 21 Tribal Nations and Native Partner Organizations in Advocating for Tribal Sovereignty Payments for FY 2024

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On July 12, 2023, the National Council of Urban Indian Health (NCUIH) joined the National Indian Health Board (NIHB) and 21 Tribal Nations and Native partner organizations in sending a letter to House and Senate leadership regarding the Administration’s proposed fiscal year (FY) 2024 Interior, Environment, and Related Agencies Appropriations Bill. In the letter, they state their support for the President’s FY 2024 proposal to reclassify Contract Support Costs (CSC) and Section 105(l) Tribal Lease Payments as mandatory appropriations and to increase program administration staff. They also urge Congress to include the proposal in their FY 2024 Interior bill.

Read the Full Letter

Full Letter Text:

Dear Chair Murray, Chair Granger, Vice Chair Collins, and Ranking Member DeLauro:

On behalf of the undersigned Tribal partner organizations and the 574+ sovereign federally recognized American Indian and Alaska Native (AI/AN) Tribal nations we serve, we write in strong support of the President’s fiscal year 2024 (FY24) proposal to reclassify Contract Support Costs (CSC) and Section 105(l) Tribal Lease Payments as mandatory appropriations and to increase program administration staff. We respectfully urge you to include the proposal in the FY24 Interior, Environment, and Related Agencies Appropriations Bill (herein “Interior bill”).

The Appropriations Committees recognized as far back as 2014 that the mandatory nature of CSC obligations places the appropriators in an “untenable position.” As they wrote in the Explanatory Statement that year, “[t]ypically obligations of this nature are addressed through mandatory spending, but in this case since they fall under discretionary spending, they have the potential to impact all other . . . equally important tribal programs.” Similarly, appropriators stated in the FY 2021 Explanatory Statement for the Interior bill that 105(l) leases, as confirmed in the Maniilaq cases, appear to create an entitlement to compensation . . . that is typically not funded through discretionary appropriations. Tribal participation in ISDEAA programs has increased rapidly over the past decade, and Congress continues to struggle to meet CSC and Section 105(l) funding obligations through discretionary appropriations. In their Explanatory Statements, the Committees called on the agencies and Congress to find a sustainable solution including mandatory reclassification.

The Fiscal Responsibility Act severely restricted discretionary appropriations for FY24 and FY25. The Act also provided new mandatory appropriations to offset cuts to discretionary appropriations for some agencies, but provided no such relief for the federal government’s treaty and trust obligations to Tribal nations. Agencies estimate that Tribal sovereignty payments will increase by almost $392 million (27%) in FY24. Despite this increase, the House and Senate have proposed cuts to the Interior bill by 35 percent and 3 percent, respectively. Deeper cuts elsewhere in the bill to offset Tribal sovereignty payment increases are, thus, inevitable.

Immediately moving these two accounts to mandatory is good risk management for the United States because the amount is already mandatory in nature and there is a mechanism for controlling costs. If the goal or intent is better fiscal management or maintaining annual control over federal spending, then leaving accounts in the discretionary process with standing to sue that would also generate additional administrative or legal costs if any underpayment or delay were to occur is wasteful and misleading, at best, and intentionally reckless, at worst. Since the amount is already mandatory in nature, there is nothing added to the mandatory budget by moving this authority to the mandatory side of the federal ledger. It does not take away any new money or create any new authority. In fact, it would benefit those with a keen fiscal eye because it would properly classify the authority for scoring purposes. Both CSC and Section 105(l) Lease Agreement accounts are necessarily bound by the parameters of the authorizing law and amounts are determined through sophisticated negotiations and calculations between parties with administrative avenues for recourse prior to suit. This means that the amount is determinable each year and can be determined into the future with reliability and accuracy. Further, it means that costs are controlled and defined by the amount of resources provided for HHS and DOI programs, services, functions, or activities in the Interior bill, along with other quantifiable measures like employee pay costs.

There is a better way to manage and score this authority for the American people and that is by providing such sums as may be necessary for these accounts through mandatory spending. Reallocating base funding from discretionary to mandatory funding has a net zero impact on the Federal budget and would not undermine the Fiscal Responsibility Act. Moreover, as mandatory appropriations in the Interior bill, the Appropriations Committees would retain oversight of the programs. The President’s proposal is sound, reasonable, and fair. Our organizations recognize and appreciate your strong leadership and support over the years for Tribal self-determination. For the sake of continuing to improve the federal government’s commitments to meeting its trust and treaty obligations under your leadership, we urge you to include the President’s Tribal sovereignty payments proposal in the FY24 Interior bill.

Full List of Letter Supporters

The full list of supporting Tribal Nations and Native Partner Organizations is as follows:

Tribal Nations:

Native Partner Organizations:

FY 2024 Appropriations Background & Update

On March 17, 2023, IHS published their FY 2024 Congressional Justification with the full details of the President’s Budget, which included $1.6 billion in proposed mandatory funding for Contract Support Costs, Section 105(l) Leases, and the Special Diabetes Program for Indians.

On May 10, the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies held a hearing to review the President’s Budget for the Indian Health Service (IHS) for FY 2024. IHS Director Tso discussed the importance of contract support costs and 105(l) leases as tools for tribal self-governance, and Senators Merkley and Murkowski expressed support for their classification as mandatory funding.

The House Appropriations Subcommittee on Interior, Environment, and Related Agencies recently released its FY 2024 Appropriations bill on July 12, rejecting the Administration’s proposal and Tribal requests to make contract support costs and Tribal leases mandatory spending.

House Republicans Propose Increase for the Indian Health Service in FY24 and Advance Appropriations for FY25

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On July 12, 2023, the House Appropriations Subcommittee on Interior, Environment, and Related Agencies released the FY24 Interior, Environment, and Related Agencies Appropriations Bill.

  • IHS Funding: The bill would authorize $7.078 billion for the Indian Health Service (IHS) for FY24, an increase of $149.4 million of the FY23 enacted level, $2.2 billion below the President’s Budget Request, and $43.3 billion below the Tribal Budget Formulation Workgroup request of $51.42 billion.
  • Advance Appropriations: The bill also provides $5.878 billion in advance appropriations for FY 2025.
  • Urban Indian Health: The Subcommittee has not released the bill report, which would include the proposed funding for urban Indian health.
  • CSC and Tribal Leases: The Subcommittee rejected the administration’s proposal and Tribal requests to make contract support costs and Tribal leases mandatory spending.
  • The Subcommittee will be holding the markup on the bill on July 13, 2023, at 5 PM EST. The hearing will be livestreamed here.

NCUIH Advocacy for Key Priorities: Full Funding, Advance Appropriations

  • On March 24, 2023, the National Council of Urban Indian Health (NCUIH) a letter to Chairman Kay Granger (R-TX-12) and Ranking Member Rosa DeLauro (D-CT-3) of the House Interior Appropriations Committee requesting full funding for IHS and urban Indian health, advance appropriations for IHS, and resources for Native behavioral health in FY 2024.
  • On March 9, 2023, NCUIH CEO Francys Crevier (Algonquin), testified before the House Interior Appropriations Subcommittee as part of American Indian and Alaska Native Public Witness Days advocating for full funding for IHS and to maintain advance appropriations for IHS until mandatory funding is enacted.

Next Steps

The Subcommittee will conduct a markup on the bill on July 13, 2023. Following the Subcommittee markup, the bill will move to full Committee consideration. NCUIH will continue to monitor for the report release and provide additional analysis. The hearing will be livestreamed here.

Key Documents

Supreme Court Upholds Constitutionality of ICWA in 7-2 Ruling, Protecting Native Children and Families

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On June 15, 2023, the Supreme Court reaffirmed and upheld the constitutionality of the Indian Child Welfare Act of 1978 (ICWA). The Justices ruled 7-2 and the majority opinion was authored by Justice Barrett. Justices Gorsuch and Kavanaugh wrote concurring opinions, while Justices Thomas and Alito wrote dissenting opinions. The National Council of Urban Indian Health welcomes the Supreme Court’s decision to reject all challenges to ICWA.

Read the Court’s Opinion here.

Claims raised by Petitioners in this case included that Congress exceeded Article I authority when it enacted ICWA, Congress violated the anticommandeering doctrine when it enacted ICWA, and placement preferences under ICWA are racially discriminatory and violate equal protection. The Supreme Court rejected the first two claims on the merits, while it declined to address the equal protection claim for a lack of standing. Based on the majority’s ruling, ICWA is upheld, and therefore, there are no major changes to ICWA’s implementation.

Justice Barrett Upholds Congress’s Authority to Enact ICWA and Rejects Anticommandeering Claim

Justice Barrett first addressed the Article I claim, explaining that, “in a long line of cases, we have characterized Congress’s power to legislate with respect to the Indian Tribes as ‘plenary and exclusive.’” Authority under Article I provide Congress with a set of enumerated powers, including the power to legislate. Here, the court agreed with the Fifth Circuit’s ruling that Congress did not exceed its authority when it enacted ICWA. It also did not find any merit to the claim that ICWA overrides state authority in child custody proceedings. Barrett explained, “in fact, we have specifically recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children.”

Next, Justice Barrett discussed Petitioner’s anticommandeering claim, which is a doctrine under the Tenth Amendment preventing the federal government from forcing states to pass or not pass certain legislation or enforce federal law. She rejected the anticommandeering argument, as ICWA’s provisions apply both to private individuals and agencies as well as government entities. She also rejected their argument because, “Petitioners assert an anticommandeering challenge to a provision that does not command state agencies to do anything,” as the burden to search for placement rests on the Tribe or other objecting party. She then addressed claims regarding the recordkeeping requirements, finding that Congress allows it as a logical consequence because under dual sovereignty state courts must apply federal law.

Lastly, Justice Barrett did not decide the equal protection claim, because Petitioner’s lacked standing for the Supreme Court to hear and address the argument. To have standing, a party must show they suffered an injury, (the injury is caused by actions of the opposing party), and a favorable decision in court would remedy the harm caused. Parties must also sue the correct party to have standing, and in this case, they sued federal officials when suit against state officials would have been appropriate. She found their claim of racial discrimination as injurious but did not agree it met the requirements of an injury, nor did she find any ruling by the Supreme Court that would properly remedy their harm. She also addressed Texas, and other states, by finding they cannot raise equal protection claims in court on behalf of their citizens.

In their dissents, Justices Thomas and Alito made their own arguments as to why ICWA should be overturned. Justice Thomas focused on Congress intruding on state power to regulate their own child welfare proceedings in state court. Justice Alito argued that ICWA conflicts with state authority to follow the “best interest of the child” standard when conducting child custody proceedings.

Justice Gorsuch Remains a Champion for Native Rights with His Concurrence

Joined in his concurrence by Justices Sotomayor and Jackson, Justice Gorsuch began by going over the history and background that led to the enactment of ICWA. He argued Congress exercised its lawful authority and stayed within the Constitution’s original design. He also placed emphasis on the purpose of ICWA as a response and tool to protect Native children from the longstanding practice of removing them from their families.

“Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it, and it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

Concerns Raised as the Court Leaves Undecided the Issue of Equal Protection

Within his concurrence, Justice Kavanaugh was the only justice to address the equal protection claims raised by Petitioners. He joined the majority opinion but found that the equal protection issue is too important not to be decided. He raises scenarios where children are denied placement, or a prospective parent is denied fostering/adoption based on race. There are questions regarding equal protection principles and Court precedent that can be addressed once a plaintiff brings a claim with standing. Due to this, it is likely there will be more challenges to ICWA specifically targeting the issue of racial discrimination.

A full archive of our coverage on ICWA is available on the NCUIH website.