PRESS RELEASE: NCUIH Releases 2018-2019 Urban Indian Organization Shutdown Report

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FOR IMMEDIATE RELEASE
Contact: Meredith Raimondi
202-417-7781
mraimondi@ncuih.org

Report Shows Devastating Impacts of Shutdown and Highlights Urgency for Advance Appropriations and 100% FMAP

WASHINGTON, DC (February 14, 2020) – The National Council of Urban Indian Health (NCUIH) has released the 2018 – 2019 Urban Indian Organization Shutdown Report. The report summarizes and presents the results of a survey NCUIH circulated during the 2018-2019 shutdown to capture important metrics and narratives regarding its impacts. The United States federal government shutdown of 2018-2019 occurred from midnight Eastern Standard Time on December 22, 2018 until January 25, 2019. Nineteen out of forty-one Urban Indian Organizations (UIOs) reported. The responses from this survey were used in NCUIH’s policy and legislative advocacy initiatives during and after the shutdown. Although the Indian health care delivery system consists of three prongs — Indian Health Service (IHS), Tribal Health Programs, and UIOs — the report focuses on UIOs.

“The 2018-2019 Urban Indian Organization Shutdown Report demonstrates that the longest U.S. government shutdown in history had instant, longstanding, and severe negative impacts on UIOs and the American Indians and Alaska Natives (AI/ANs) they serve across the country. The federal trust responsibility to provide for the healthcare of all AI/ANs mandates that federal funding problems be fixed so that the impacts of any future shutdowns are minimized, and the lives of AI/ANs are not put at risk. Because UIOs operate on very low margins, every aspect of their abilities to deliver essential healthcare was affected by the 2018-2019 shutdown, including their abilities to hire and retain staff, to provide direct services, and, in some cases, even to remain open and available for their patients. IHS funding at the level of need, an increase in the Urban Indian Health budget line item, advance appropriations, and 100% FMAP for UIOs are all necessary fixes to protect the delivery of healthcare to AI/ANs,” said Francys Crevier, Executive Director of NCUIH.

The interruption in funding precipitated by the shutdown had dire consequences for UIOs and, consequently, on American Indians and Alaska Natives (AI/ANs) across the country. The impact on AI/ANs, many of whom depend on UIOs for their healthcare needs, ranged from patients unable to get vital medication for chronic conditions to fatal overdoses. UIOs had to make difficult decisions regarding cancellation of certain services, reduction in practitioner hours, staff retention, facility operation, and whether to use savings earmarked for other purposes to shield staff and patients from the impact of the shutdown.

NCUIH shifted its policy and advocacy focus during the shutdown to limit the disruptions to the daily operations of the UIOs it represents and urged Congress and the administration to immediately end the shutdown and restore funding to IHS. Following the shutdown and restoration of funding, NCUIH remains dedicated to establishing safeguards for UIOs against potential shutdowns in the future. NCUIH is working with Congressional officials to raise awareness for bills that would provide the Indian Health Service (IHS) with advance appropriations (H.R. 1128, S. 229) and provide 100% Federal Medical Assistance Percentage (FMAP) for UIOs (H.R. 2316, S. 1180).

Key Findings

UIOs operate on very low margins.

  • UIOs operate on very low margins such that even very minor changes to their funding structures lead to devastating impacts on the services they provide to AI/ANs and even affect their abilities to keep their facilities operational.

All aspects of the urban Indian healthcare delivery system were impacted by the shutdown, but the UIO workforce was the first to experience its disastrous effects.

  • The survey results point to a pattern which suggests that among the difficult decisions UIOs were forced to make during the 2013 and the 2018-2019 shutdowns, delaying hiring, reducing hours, and laying off staff were typically the first decisions made.

UIO services were greatly impacted.

  • Another pattern the survey highlighted is that UIOs were forced to cut back on services that were not as consequential as others, such as dental services, transportation, case management, and community outreach services. However, some UIOs were forced to cut even the essential services such as substance abuse services and purchase requests for diabetes and blood pressure medications.

UIOs were forced to use savings designated for other purposes to shield staff and patients from the impact of the last two government shutdowns.

  • Yet another pattern illustrated in the survey results suggests that UIO leaders made an effort to protect their staff and current services by using savings earmarked for program growth.

President’s FY 2021 Budget Proposal Includes $50 Million for Urban Indian Health

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The Request for FY 2021 is an Increase of $1 Million from FY 2020 Request, $8 Million Below FY 2020 Enacted

President Trump delivered a fiscally conservative budget proposal for FY2021. Although Congress and the President will negotiate new funding levels once the caps expire in September 2021, the President and congressional leaders had previously settled on new funding caps for the fiscal year ahead. The total Health and Human Services (HHS) budget is set at $96.4 billion which represents a nearly 10 percent cut to its most recent budget and includes $6.2 billion in Indian Health Service (IHS) funds.

Urban Indian Line Item

  • The spending proposal recommends a funding level for the urban Indian line at $49,636,000. This is an $8 million decrease from the enacted budget for FY 2020, but it is a $1 million increase from the President’s FY 2020 budget request for the line item. Meanwhile, IHS received an overall increase of $185 million.

Special Diabetes Program for Indians (SDPI)

  • President Trump’s budget also includes continued funding for the Special Diabetes Program for Indians (SDPI) at the current funding levels of $150 million through FY 2021.

Federal Tort Claims Act

  • The budget expands the Federal Tort Claims Act to Urban Indian Organizations (UIOs), which would protect UIO employees from malpractice lawsuits, saving each UIO an estimated $100,000 annually in malpractice insurance.

105(l) Leases

  • The FY 2021 budget adds $101 million for 105(l) leases. IHS was forced to reallocate $72 million in FY 2019 to pay $101 million for leases under section 105(l) of The Indian Self-Determination and Education Assistance Act (ISDEAA). Approximately $782,000 of which came from urban medical inflation funds.

Centers for Disease Control and Prevention and National Institutes of Health

  • The budget request would trim funding for the Centers for Disease Control and Prevention by almost 16 percent.  Funding loss that would affect the HHS core mission of preventing and controlling emerging public health issues such as opioid abuse.  The President proposes to give the National Institutes of Health a $38 billion budget for FY2021 – about $3 billion less than the current funding level. This cut would affect priorities to include research on the opioid epidemic and stimulants such as methamphetamine, issues that are at critical levels in Indian Country.

National Health Service Corps

  • The National Health Service Corps loan repayment program is reauthorized with $15 million – UIOs employees of UIOs are eligible for participation in the loan repayment program.

HIV/AIDS at HRSA

  • New programs include a focus on HIV/AIDS with $302 million allocated to Health Resources and Service Administration (HRSA) for HIV prevention diagnosis services expansion at health centers and treatment through the Ryan White HIV/AIDS program.

Quick Glance

  • $6,232,568,000 – IHS budget authority total
  • $4,507,113,000 – IHS services budget
  • $49,636,000 million – Urban Indian Health
  • $150,000,000 million – Special Diabetes Program for Indians
  • $101,000,000 million – Section 105(l) ISDEAA
  • $15,000,000 million – The National Health Service Corps loan repayment program
  • $302,000,000 million – HRSA for HIV prevention

A more in-depth analysis of the White House’s FY 2021 Budget is forthcoming.

NCUIH Contact: Carla Lott (cmlott@ncuih.org), Director of Congressional Relations

Distribution of the Fiscal Year (FY) 2020 Urban Indian Health Funding Increase

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On January 27, 2020, Indian Health Service (IHS) Deputy Director, Michael D. Weahkee, sent out a Dear Urban Indian Organization Leader Letter (DULL) regarding the IHS’s decision on the distribution of funds for the fiscal year (FY) 2020 increase. The letter provides that IHS issued the standard distribution of funds in accordance with the 2018 Urban Confer. 10 percent of the funds will be distributed to the Office of Urban Indian Health Programs (OUIHP) and 90 percent of the funds will be distributed to Urban Indian Organizations (UIOs) via IHS contracts. An equitable distribution methodology will divide the 90 percent evenly among the UIOs for FY 2020.

The DULL provides that the Urban Indian Health funding increase available for distribution in FY 2020 to the OUIHP and UIOs is $5,000,000. The Agency will move forward with distribution as outlined below:

FY 2020 Urban Indian Health Funding Increase – Category

Total Amount

Percentage of Funds
OUIHP

$500,000

10%
39 UIOs: $115,385 per Urban Indian Organization

$4,500,000

90%
Total FY 2020 Funding Increase Distribution

$5,000,000

100%

Why is this important to UIOs?

  • This is the UIOs overall funding distribution increase for FY 2020.
NCUIH Contact: Julia Dreyer (jdreyer@ncuih.org), Director of Federal Relations

Transfer of Former NIAAA Programs from ASAP to OUIHP is Complete

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On January 27, 2020, Indian Health Service (IHS) Principal Deputy Director, Michael D. Weahkee, sent out a Dear Urban Indian Organization Leader Letter (DULL) informing UIOs that the transfer of the former National Institute on Alcohol Abuse and Alcoholism programs (NIAAA) from the IHS Alcohol and Substance Abuse Program (ASAP) to the IHS Office of Urban Indian Health Programs (OUIHP) had been completed.

The DULL notes that IHS has completed three critical steps, which were previously identified. Accordingly, each former NIAAA program is defined as a UIO under the Indian Health Care Improvement Act, the internal management of contract funds have been transferred from the ASAP to the OUIHP, and IHS took steps to formally reprogram funds from the ASAP budget to the Urban Indian Health budget for fiscal year 2020.

Why is this important to UIOs?
  • IHS is informing UIOs that the actions needed to complete the transfer of former NIAAA programs to OUIHP, as identified in an October 13, 2017 DULL, have been completed.

NCUIH Contact: Julia Dreyer (jdreyer@ncuih.org), Director of Federal Relations

NCUIH to Testify before House Interior Appropriations

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Washington, DC (February 10, 2020) – On Tuesday, February 11, 2020, National Council of Urban Indian Health President Maureen Rosette (Chippewa Cree Nation) will testify before the House Interior Appropriations Subcommittee as part of American Indian and Alaska Native Public Witness Days (February 11 and 12, 2020). The hearing will begin at 9:00 AM at 2008 Rayburn House Office Building and will be livestreamed. Ms. Rosette is expected to testify at 10:10 AM during the Health Care Panel.

In the testimony, NCUIH will advocate for an increase in funding to a minimum of $81 to $106 million for the Indian Health Services (IHS) urban Indian healthcare line item, constituting 2% of the total IHS budget. The higher end of this range, $106 million, is what the IHS Tribal Budget Formulation Workgroup requested minimum is for Fiscal Year (FY) 2021. The House included $81 million in FY 2020 for urban Indian health and the final bill included $57 million, a $6 million increase.

NCUIH is grateful to be included in the Public Witness Days. NCUIH has been encouraged by the strong leadership of Chair McCollum and Ranking Member Joyce for urban Indian health in FY 2020 and looks forward to continuing these efforts for FY 2021.

The deadline to submit written testimony is Friday, March 6th.

Fifth Circuit Hears Oral Argument on ICWA Case

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Last week, the U.S. Court of Appeals for the Fifth Circuit heard oral argument on the constitutionality of the Indian Child Welfare Act (ICWA).  As previously reported, the court agreed to rehear the case, Brackeen v. Bernhardt, en banc.  Of the sixteen judges hearing the case, six asked the majority of the questions.  Attorneys from the Department of Justice, Navajo Nation, and an attorney representing Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation argued in defense of ICWA.  The states challenging ICWA were represented by the Texas Solicitor General.  An attorney representing individual plaintiffs also presented argument challenging ICWA.  As a reminder, the case centers around whether ICWA is unconstitutional on several bases — including whether it violates the Equal Protection Clause as a race-based statute.  A three-judge panel had previously held ICWA constitutional before the entire Fifth Circuit agreed to rehear the case en banc.

An audio recording of the oral argument is available here.

NCUIH will continue to monitor the case and provide updates as they become available.  Previously, in December 2019, NCUIH joined nearly 400 Tribes and Indian organizations in an amicus curiae brief filed in support of the Indian Child Welfare Act (ICWA).

NCUIH Submits Comments to CMS, HHS OIG

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On December 31, NCUIH submitted two sets of comments to the Centers for Medicare & Medicaid Services (CMS) and Department of Health & Human Services Office of the Inspector General (OIG), respectively.

NCUIH’s first comment letter was submitted pursuant to CMS’s request for information on the Medicare Program: Modernizing and Clarifying the Physician Self-Referral Regulations.  In the comments, NCUIH strongly encouraged CMS to create new exceptions to the physician self-referral law that are consistent with the trust responsibility to AI/ANs.

The second comments were on OIG’s proposed rule, Medicare and State Healthcare Programs: Fraud and Abuse; Revisions to Safe Harbors Under the Anti-Kickback Statute, and Civil Monetary Penalty Rules Regarding Beneficiary Inducements.  In the comments, NCUIH noted, among other things, the importance of care coordination agreements to the I/T/U system and opposed modifications that would effectively make the safe harbor completely unavailable to I/T/U facilities.The OIG proposed modifications to the existing safe harbor for local transportation. In general, transportation is a major challenge for Indian Country, tribes, and AI/AN people no matter where they reside. For Indian health care providers and their AI/AN patients, transportation poses a significant barrier to health care access. NCUIH commented on the proposed increase in the mileage limit and encouraged OIG to eliminate the mileage limit for Indian health programs altogether – or to further expand the limit for our health programs. You can also find a copy of the comments submitted by the CMS Tribal Technical Advisory Group here.

Federal Appeals Court that Affirmed ICWA Rules ACA Mandate Unconstitutional; Lower Court Will Reconsider the Entire Law’s Validity

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Today, the U.S. Court of Appeals for the Fifth Circuit ruled that the Patient Protect and Affordable Care Act (Affordable Care Act / Obamacare) individual mandate is unconstitutional. The appeals court narrowed a broader ruling from a Texas federal district court that found the entire Affordable Care Act was unconstitutional.  The appeals court did not invalidate the entire law, but instead sent it down to a lower court to reconsider whether any of the law can survive.

Whenever part of a statute is ruled unconstitutional, a court must then determine how much of the statute to invalidate. This is known as the severability doctrine. The U.S. Supreme Court test for severability is whether other provisions can exist with independent legal effect. Courts typically avoid striking entire laws if they can stand without the provisions that are found invalid. Many legal scholars have pointed to Congress’s decision to zero out just the mandate penalty in 2017 as proof that lawmakers meant for the rest of the ACA to stand.

This challenge to Obamacare was brought by more than a dozen Republican-led states that argued the law is no longer constitutional after Congress removed the penalty for not purchasing insurance in the 2017. The majority of the appeals court panel was made up of Republican-appointed judges, although they said the entire law did not need to fall. The other judge on the panel (Democratic-appointed) disagreed with the majority’s decision in a lengthy dissent.

In August, this same appeals court published its decision in Brackeen v. Bernhard, which was a challenge to the Indian Child Welfare Act (ICWA).  The appeals court affirmed that ICWA is constitutional recognizing the unique political status of tribes and American Indians and Alaska Natives. This was a big win for Indian Country.

The future of the law remains uncertain. It is highly likely to be challenged to the Supreme Court. This development could renew pressure on Obamacare opponents to explain how they plan to preserve the law’s insurance protections, after failing to agree on a replacement for years. If the entire Affordable Care Act is found invalid, it will jeopardize health care coverage for the roughly 20 million Americans covered through the law and its preexisting conditions protections.

Policy Alert: Congress Passes FY20 Minibus with $6M Increase for Urban Indian Health and Renews SDPI, CHC Through May

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This is the highest increase for the urban Indian line item. President Trump is expected to sign the bill before midnight.

On Thursday, December 19, 2019, the Senate passed the first part of the legislation to fund the federal government through fiscal year 2020. Congress decided to split all twelve appropriations bills into two different minibus bills, one without national security funding and a separate bill with national security-related items. The package with Interior Appropriations (H.R. 1865) has passed out of both chambers. This bill includes funding for the Department of Interior’s Indian Health Service and the urban Indian health line item through the September 30 end of the fiscal year. The President is expected to sign the bill before the current continuing resolution expires at midnight on Friday.

Indian Health Service and Urban Indian Line Item
As NCUIH reported earlier this week, the bill provides $6.047 billion for the Indian Health Service (IHS), $243 million more than fiscal year 2019 and $138 million more than the President’s budget request. IHS will see a 4% increase over FY19. The agreement includes $6 million in additional funds for the Urban Indian Health Programs, a long-overdue increase. NCUIH has long-advocated for an increase of at least $30 million for urban Indian health, however, this increase sets a higher water mark for next year’s negotiations.

105(l) Leases
The bill includes increases of $125 million to meet court-ordered requirements for tribal lease operating costs owed to tribes. The bill includes Senate report language directing IHS to implement better budget procedures to address this in the future.

Health Extenders
The health extenders including SDPI and CHC has been extended until May 22, 2020. This date provides additional time for negotiations on a longer-term reauthorization. NCUIH will continue to try to ensure the programs are extended for a longer-term, hopefully, 5 years, and to fight for further increases.

FY2020 Interior Appropriations

  • Indian Health Service – $6.04 Billion
  • Urban Indian Health Line Item – $57 Million

FY2019 Interior Appropriations

  • Indian Health Service – $5.8 Billion
  • Urban Indian Health Line Item – $51 Million

Press Contact:
Meredith Raimondi
mraimondi@NCUIH.org
202-417-7781

Policy Contact:
Carla Lott
cmlott@NCUIH.org

NCUIH Joins Coalition in Amicus Curiae Brief in Support of the Indian Child Welfare Act

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On December 13, NCUIH joined nearly 400 Tribes and Indian organizations in an amicus curiae brief filed in support of the Indian Child Welfare Act (ICWA). The brief, which was filed in the U.S. Court of Appeals for the Fifth Circuit, largely mirrors the brief filed in the lawsuit last year. As a reminder, a three-judge panel of the Fifth Circuit issued an opinion in August finding ICWA constitutional in part because it is not a race-based law.  However, the judges granted an order to rehear the case en banc — before the entire 17-judge panel. Defendants in the case, the federal government and Intervenor-Tribes, filed their supplemental briefs for the en banc stage on Friday, December 6.