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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 16-005

General Memorandum 16-005
Indian Health Service Fiscal Year 2016 Appropriations; Includes FY 2016 Indefinite Appropriation for Contract Support Costs

On December 18, 2015, President Obama signed the Consolidated Appropriations Act, 2016 as PL 114-113. The Act contains funding for all federal agencies, combining what under regular procedures would be 12 separate bills. In this Memorandum we report on FY 2016 funding for the Indian Health Service (IHS) which is in Division G (Interior, Environment and Related Agencies) of the Act. In addition to the Explanatory Statement accompanying the Act, House and Senate Interior Appropriations report language (H. Rept. 114-170; S. Rept. 114-70) is to be complied with unless specifically contradicted by the bill language or the Explanatory Statement. (See our General Memorandum 15-049 of July 7, 2015 comparing the House and Senate Committees' and the Administration's recommendations regarding the FY 2016 IHS budget.)

While the ink is barely dry on the Consolidated Appropriations Act, 2016, we are ready to begin a new appropriations season with President Obama submitting his FY 2017 proposed budget to Congress on February 9, 2016.

FUNDING OVERVIEW

The Act provides $4.8 billion for the IHS, a 3.6 percent increase over FY 2015, but $295 million below the Administration's request. As with FY 2015, no funding is provided for medical inflation or population growth although the Administration had requested $71 million and the House had proposed $53 million for medical inflation. The Act does include $19.4 million for a 1.3 percent pay cost increase.

Also included are the higher Senate recommendations for the Facilities account, Immunization, and $2 million in new funding for health clinic operating costs. The Act includes the higher House recommendation for Self-Governance and splits the difference between the Committees' recommendations for Hospitals and Clinics, Mental Health, Dental Health, Health Education, Community Heath Representatives, and Facilities and Environmental Health Support. However, the following accounts ended up with higher funding than had originally been recommended by the House and Senate Committees: Alcohol and Substance Abuse, Public Health Nursing and Urban Indian Health. Funding for Purchased and Referred Care remained flat.

Contract Support Costs. Most notable is the moving of Contract Support Costs (CSC) into its own account and the instructions in the Act that it is to be funded at "such sums as may be necessary." The Explanatory Statement assumes a need of $717.9 million ($55 million over FY 2015). Should the need for CSC exceed the amount listed in the budget chart, additional CSC funds would be made available and the agencies' program funding will not be reduced. This provision is applicable to only the FY 2016 Appropriations Act and so discussion will continue on the issue of providing permanent mandatory funding for CSC. See the CSC section elsewhere in this Memorandum for additional information.

New Funding. New funding of $2 million is provided for operating shortfalls at community health clinics, and $2 million for use in ensuring the accreditation status of IHS-operated facilities.

Staffing of New Facilities. The Act provides $14.1 million in the Services and Facilities account combined for the staffing of new facilities at the Southern California Youth Treatment Center ($2.8 million Services, $311,000 Facilities) and the Choctaw (MS) Alternative Rural Health Care Center ($10 million Services, $930,000 Facilities). The Explanatory Statement notes: "Funds are limited to facilities funded through the Health Care Facilities Construction Priority System or the Joint Venture Construction Program that have opened in fiscal year 2015 or will open in fiscal year 2016. None of these funds may be allocated to a facility until such facility has achieved beneficial occupancy status."

CONTINUING BILL LANGUAGE

The Act continues bill language from previous bills, including the following:

Contract Support Costs. See CSC section below.

IDEA Data Collection Language. The Act continues to authorize the BIA to collect data from the IHS and tribes regarding disabled children in order to assist with the implementation of the Individuals with Disabilities Education Act (IDEA):

Provided further, That the Bureau of Indian Affairs may collect from the Indian Health Service and tribes and tribal organizations operating health facilities pursuant to Public Law 93-638 such individually identifiable health information relating to disabled children as may be necessary for the purpose of carrying out its functions under the Individuals with Disabilities Education Act. (20 U.S.C. 1400, et. seq.)

Prohibition on Implementing Eligibility Regulations. The Act continues the prohibition on the implementation of the eligibility regulations, published September 16, 1987.

Services for Non-Indians. The Act continues the provision that allows the IHS and tribal facilities to extend health care services to non-Indians, subject to charges. The provision states:

Provided, That in accordance with the provisions of the Indian Health Care Improvement Act, non-Indian patients may be extended health care at all tribally administered or Indian Health Service facilities, subject to charges, and the proceeds along with funds recovered under the Federal Medical Care Recovery Act (42 U.S.C. 2651-2653) shall be credited to the account of the facility providing the service and shall be available without fiscal year limitation.

Assessments by DHHS. The Act continues the provision that has been in Interior appropriations acts for a number of years which provides that no IHS funds may be used for any assessments or charges by the Department of Health and Human Services "unless identified in the budget justification and provided in this Act, or approved by the House and Senate Committees on Appropriations through the reprogramming process."

Limitation on No-Bid Contracts. The Act continues the provision regarding the use of no-bid contracts. The provision specifically exempts Indian Self-Determination agreements:

Sec. 411. None of the funds appropriated or otherwise made available by this Act to executive branch agencies may be used to enter into any Federal contract unless such contract is entered into in accordance with the requirements of Chapter 33 of title 41 United States Code or chapter 137 of title 10, United States Code, and the Federal Acquisition Regulations, unless:

(1) Federal law specifically authorizes a contract to be entered into without regard for these requirements, including formula grants for States, or federally recognized Indian tribes; or
(2) such contract is authorized by the Indian Self-Determination and Education and Assistance Act (Public Law 93-638, 25 U.S.C. 450 et seq.) or by any other Federal laws that specifically authorize a contract within an Indian tribe as defined in section 4(e) of that Act (25 U.S.C. 450b(e)); or
(3) Such contract was awarded prior to the date of enactment of this Act.

CONTRACT SUPPORT COSTS

FY 2015 Enacted $662,970,000
FY 2016 Admin. Request $717,970,000
FY 2016 Enacted Such sums as may be necessary

The conferees adopted the Senate Committee-recommended approach to Contract Support Costs funding, creating a separate account for it and making it an indefinite appropriation at "such sums as may be necessary." These provisions are specific to FY 2016.

The Act states:

For payments to tribes and tribal organizations for contract support costs associated with Indian Self-Determination and Education Assistance Act agreements with the Indian Health Service for fiscal year 2016, such sums as may be necessary: Provided, That amounts obligated but not expended by a tribe or tribal organization for contract support costs for such agreements for the current fiscal year shall be applied to contract support costs otherwise due for such agreements for subsequent fiscal years: Provided further, That, notwithstanding any other provision of law, no amounts made available under this hearing shall be available for transfer to another budget account.

The Explanatory Statement notes:

CONTRACT SUPPPORT COSTS. The agreement provides an indefinite appropriation for contract support costs estimated to be $717,970,000, which is an increase of $55,000,000 above the fiscal year 2015 enacted level. The budget request proposed to fund this program within the "Indian Health Services" account. Under this heading the Committees have provided the full amount of the request for contract support costs. By virtue of the indefinite appropriation, additional funds may be provided by the agency if its budget estimate proves to be lower than necessary to meet the legal obligation to pay the full amount due to tribes. This account is solely for the purpose of paying contract support costs and no transfers from this account are permitted for other purposes.

Fiscal Year 2016 Limitation. Section 406 of Division G of the Act provides that no FY 2016 funds may be used by the IHS or the BIA to pay prior year CSC or to repay for Judgement Fund for payment of judgments or settlements related to past year CSC claims.
The Act states:

SEC. 406. Amounts provided by this Act for fiscal year 2016 under the headings "Department of Health and Human Services, Indian Health Service, Contract Support Costs" and "Department of the Interior, Bureau of Indian Affairs and Bureau of Indian Education, Contract Support Costs" are the only amounts available for contract support costs arising out of self-determination or self-governance contracts, grants, compacts, or annual funding agreements for fiscal year 2016 with the Bureau of Indian Affairs or the Indian Health Service: Provided, That such amounts provided by this Act are not available for payments of claims for contract support costs for prior years, or for repayments of payments for settlements or judgments awarding contract support costs for prior years.

Prior Year Fiscal Limitations. Section 405 of Division G of the Act continues by reference to Sections 405 and 406 of Division F of Public Law 113-235 (Consolidated and Further Continuing Appropriations Act, 2015) the comparable limitation as noted for FY 2016 above.

FUNDING FOR INDIAN HEALTH SERVICES

FY 2015 Enacted $3,519,177,000
FY 2016 Admin. Request $4,463,260,000
FY 2016 Enacted $3,566,387,000

Definition of Indian. The House Committee repeats language from FY 2015 which notes the problems caused by various definitions of "Indian" referenced in various federal health programs and urges the Department of Health and Human Services, the IHS, and the Treasury Department to work together to establish a consistent definition of "Indian" with regard to health care.

The Committee recognizes the Federal government's trust responsibility for providing healthcare for American Indians and Alaska Natives. The Committee is aware that the definition of who is an "Indian" is inconsistent across various Federal health programs, which has led to confusion, increased paperwork and even differing determinations of health benefits within Indian families themselves. The Committee therefore directs the Department of Health and Human Services, the Indian Health Service, and the Department of the Treasury to work together to establish a consistent definition of an "Indian" for purposes of providing health benefits. (H. Rept. 114-170, p. 76)

HOSPITALS AND CLINICS

FY 2015 Enacted $1,836,789,000
FY 2016 Admin. Request $1,936,323,000
FY 2016 Enacted $1,861,225,000

The Act includes $12.8 million for a pay cost increase, $7.6 million for staffing of new facilities, $2 million for operational shortfalls of tribal clinics, and $2 million to address accreditation emergencies.

Initiatives Funding Distribution. The Act includes language proposed by the Administration providing that the funds for methamphetamine and suicide prevention and treatment, the domestic violence prevention initiative, and efforts to improve collections from public and private insurance at IHS and tribally-operated facilities are to be allocated at the discretion of the Director. The conferees also added funds used for accreditation emergencies to this category. (The Administration has announced that it will not allocate contract support costs for the meth/suicide and domestic violence prevention initiatives, and in the budget request allocated $10 million for use in improving third party collections.)

Health Clinics. As mentioned above, the Act includes a $2 million increase for operational funds for health clinics:

Provided further, That, of the funds provided, $2,000,000 shall be used to supplement funds available for operational costs at tribal clinics operated under an Indian Self-Determination and Education Assistance compact or contract where health care is delivered in space acquired through a full service lease, which is not eligible for maintenance and improvement and equipment funds from the Indian Health Service Accreditation. The Explanatory Statement includes the following regarding accreditation issues at some IHS-operated facilities:

The Committees are concerned about loss and potential loss of CMS accreditation status at multiple IHS-operated facilities. These facilities are all located within the same Service Area, suggesting that the problems are systemic. Whatever the causes, the Committees consider the loss of accreditation to be an emergency. The agreement therefore includes $2,000,000 in new, flexible funding so that the Director may take actions necessary to ensure that CMS accreditation status is reinstated and retained, and, once accreditation has been reinstated, to restore third-party insurance reimbursement shortfalls.

Health Care Provider Shortage. The House Report repeats language from FY 2015, encouraging IHS "to work with Tribes and health care organizations to find creative ways to address the Service's health care provider shortage, including improvements to the credentialing process." (H. Rept. 114-170, p. 77)

DENTAL SERVICES

FY 2015 Enacted $173,982,000
FY 2016 Admin. Request $181,459,000
FY 2016 Enacted $178,286,000

The Act includes a $1.4 million program increase, $1.4 million for a pay cost increase, and $1.5 million for staffing of new facilities. As it did in FY 2015, the House Report encourages the IHS to work with the BIE to establish a pilot program integrating preventive dental care at schools within the Bureau system. (H. Rept. 114-170, p. 76)

MENTAL HEALTH

FY 2015 Enacted $81,145,000
FY 2016 Admin. Request $84,485,000
FY 2016 Enacted $82,100,000

The Act includes $616,000 for a pay cost increase and $339,000 for staffing of new facilities.

ALCOHOL AND SUBSTANCE ABUSE

FY 2015 Enacted $190,981,000
FY 2016 Admin. Request $227,062,000
FY 2016 Enacted $205,305,000

Included is a $10 million increase for programs focusing on tribal youth. The Administration's proposal requested an expansion of the methamphetamine/youth suicide prevention initiative by $25 million. Also provided is $1.3 million for a pay cost increase and $3 million for staffing of new facilities.

PURCHASED/REFERRED CARE

FY 2015 Enacted $914,139,000
FY 2016 Admin. Request $984,475,000
FY 2016 Enacted $914,139,000

The Act includes within the total $51.5 million for the Catastrophic Health Emergency Fund, the same as in FY 2015.

Medicare-Like Rates Legislation Encouraged. While the Act does not include legislative language addressing the Medicare-Like Rates issue, the House and Senate Committees commented on it. In addition, the Administration included in its budget recommendation a proposal supporting enactment of legislation to provide Medicare-like rates for non-hospital services, thus stretching the funding for Purchased/Referred Care. The House Committee agreed, stating:

The Committee urges the Service to work expeditiously with the relevant Congressional authorizing committees to enact authorization for the Service to cap payment rates for non-hospital services, as recommended by the Government Accountability Office (GAO 13-272). Failure to do so costs the program an estimated $30 million annually that could be used to purchase more services. (H. Rept. 114-170, p. 76)

The House Committee also referenced a GAO report (GAO 12-446) critical of the program:

The Committee urges the Service, Tribes, and the congressional authorizing committees to make reasonable and expeditious progress to address the concerns and recommendations made by the Government Accountability Office (GAO), most notably with regard to unfair allocations, third-party overbilling and under-enrollment in other qualifying Federal programs. (H. Rept. 114-170, p. 76)

The Senate Committee, on the other hand, addressed a Purchased/Referred Care issue specific to Indian people in Oregon:

The Committee is aware that certain Indian people in Oregon have not been counted for purposes of purchased and referred care under current Service policies and that the Service is currently considering options to address the situation, including the potential expansion of service delivery areas. The Committee believes that it is important that this issue be resolved without impacting existing purchased and referred care allocations to California and Oregon. Within 60 days of enactment of this act, the Service is directed to provide a report to the Committee detailing its proposed management actions to address the situation. (S. Rept. 114-70, p. 70)

PUBLIC HEALTH NURSING

FY 2015 Enacted $75,640,000
FY 2016 Admin. Request $79,576,000
FY 2016 Enacted $76,623,000

The Act includes $605,000 for a pay cost increase and $378,000 for staffing of new facilities.

HEALTH EDUCATION

FY 2015 Enacted $18,026,000
FY 2016 Admin. Request $19,136,000
FY 2016 Enacted $18,255,000

The Act includes $133,000 for a pay cost increase and $96,000 for staffing of new facilities.

COMMUNITY HEALTH REPRESENTATIVES

FY 2015 Enacted $58,469,000
FY 2016 Admin. Request $62,363,000
FY2016 Enacted $58,906,000

The Act includes $437,000 for a pay cost increase.

HEPATITIS B and HAEMOPHILUS
IMMUNIZATION (Hib) PROGRAMS IN ALASKA

FY 2015 Enacted $1,826,000
FY 2016 Admin. Request $1,950,000
FY 2016 Enacted $1,950,000

The Act includes a $109,000 program increase and $15,000 for a pay cost increase.

URBAN INDIAN HEALTH

FY 2015 Enacted $43,604,000
FY 2016 Admin. Request $43,604,000
FY 2016 Enacted $44,741,000

The Act includes a $1,137,000 program increase for Urban Indian Health which is higher than the amount initially recommended by the House or Senate. The Act includes new bill language instructing IHS to "develop a strategic plan for the Urban Indian Health program in consultation with urban Indians and the National Academy of Public Administration…"

The Explanatory Statement directs:

The agency is directed to include current services estimates for Urban Indian Health in future budget requests. The Committees note the agency's failure to report the results of the needs assessment directed by House Report 111-180. Therefore, the recommendation includes bill language requiring a program strategic plan developed in consultation with urban Indians and the National Academy of Public Administration.

INDIAN HEALTH PROFESSIONS

FY 2015 Enacted $48,342,000
FY 2016 Admin. Request $48,342,000
FY 2016 Enacted $48,342,000

Programs funded under Indian Health Professions are: Health Professions Preparatory and Pre-Graduate Scholarships; Health Professions Scholarships; Extern Program; Loan Repayment Program; Quentin N. Burdick American Indians Into Nursing Program; Indians Into Medicine Program; and American Indians into Psychology. Consistent with the Administration's request, bill language provides $36 million for the loan repayment program.

Use of Defaulted Funds. The Act continues the provision that allows funds collected on defaults from the Loan Repayment and Health Professions Scholarship programs to be used to recruit health professionals for Indian communities:

Provided further, That the amounts collected by the Federal Government as authorized by sections 104 and 108 of the Indian Health Care Improvement Act (25 U.S.C. 1613a and 1616a) during the preceding fiscal year for breach of contracts shall be deposited to the Fund authorized by section 108A of the Act (25 U.S.C. 1616a-1) and shall remain available until expended and, notwithstanding section 108A(c) of the Act (25 U.S.C. 1616a-1(c)), funds shall be available to make new awards under the loan repayment and scholarship programs under sections 104 and 108 of the Act (25 U.S.C. 1613a and 1616a).

TRIBAL MANAGEMENT

FY 2015 Enacted $2,442,000
FY 2016 Admin. Request $2,442,000
FY 2016 Enacted $2,442,000

Funding is for new and continuation grants for the purpose of evaluating the feasibility of contracting IHS programs, developing tribal management capabilities, and evaluating health services. Funding priorities are, in order: 1) tribes that have received federal recognition or restoration within the past five years; 2) tribes/tribal organizations that are addressing audit material weaknesses; and 3) all other tribes/tribal organizations.

DIRECT OPERATIONS

FY 2015 Enacted $68,065,000
FY 2016 Admin. Request $68,338,000
FY 2016 Enacted $68,338,000

The Act includes $273,000 for a pay cost increase. The IHS noted in its budget submission that 58.7 percent of the Direct Operations budget would go to Headquarters and 41.3 percent to the 12 Area Offices. Tribal Shares funding for Title I contracts and Title V compacts are also included.

SELF-GOVERNANCE

FY 2015 Enacted $5,727,000
FY 2016 Admin. Request $5,735,000
FY 2016 Enacted $5,735,000

The Act includes $8,000 for a pay cost increase. The Self-Governance budget supports implementation of the IHS Tribal Self-Governance Program including funding required for Tribal Shares; oversight of the IHS Director's Agency Lead Negotiators; technical assistance on tribal consultation activities; analysis of Indian Health Care Improvement Act new authorities; and funding to support the activities of the IHS Director's Tribal Self-Governance Advisory Committee.

The IHS estimated in its budget justification that in FY 2015, $1.8 billion will be transferred to tribes to support 89 ISDEAA Title V compacts and 114 funding agreements.

SPECIAL DIABETES PROGRAM FOR INDIANS

While the entitlement funding for the Special Diabetes Program for Indians (SDPI) is not part of the IHS appropriations process, those funds are administered through the IHS. SDPI is currently funded through FY 2017 at $150 million (see our General Memorandum 15-032 of April 17, 2015).

FUNDING FOR INDIAN HEALTH FACILITIES

FY 2015 Enacted $460,234,000
FY 2016 Admin. Request $639,725,000
FY 2016 Enacted $523,232,000

MAINTENANCE AND IMPROVEMENT

FY 2015 Enacted $53,614,000
FY 2016 Admin. Request $89,097,000
FY 2016 Enacted $73,614,000

The Act includes a $20 million program increase. Maintenance and Improvement (M&I) funds are provided to Area Offices for distribution to projects in their regions. Funding is for the following purposes: 1) routine maintenance; 2) M&I Projects to reduce the backlog of maintenance; 3) environmental compliance; and 4) demolition of vacant or obsolete health care facilities. The Act provides that up to $500,000 may be deposited in a Demolition Fund to be used for the demolition of vacant and obsolete federal buildings.

FACILITIES AND ENVIRONMENTAL HEALTH SUPPORT

FY 2015 Enacted $219,612,000
FY 2016 Admin. Request $226,870,000
FY 2016 Enacted $222,610,000

The Act includes $1.7 million for a pay cost increase and $1.2 million for staffing of new facilities.

MEDICAL EQUIPMENT

FY 2015 Enacted $22,537,000
FY 2016 Admin. Request $23,572,000
FY 2016 Enacted $22,537,000

The Act continues language to provide up to $500,000 to purchase TRANSAM equipment from the Department of Defense and up to $2.7 million for the purchase of ambulances. The Administration's request was to distribute the FY 2016 requested funds as follows: $18 million for new and routine replacement medical equipment at over 1,500 federally- and tribally-operated health care facilities; $5 million for new medical equipment in tribally-constructed health care facilities; and $500,000 each for the TRANSAM and ambulance programs.

CONSTRUCTION

Construction of Sanitation Facilities

FY 2015 Enacted $ 79,423,000
FY 2016 Admin. Request $115,138,000
FY 2016 Enacted $ 99,423,000

The Act includes a $20 million program increase. Four types of sanitation facilities projects are funded by the IHS: 1) projects to serve new or like-new housing; 2) projects to serve existing homes; 3) special projects such as studies, training, or other needs related to sanitation facilities construction; and 4) emergency projects. The IHS sanitation facilities construction funds cannot be used to provide sanitation facilities for HUD-built homes.

Most of the Administration's requested increase was for $30 million to service new and like-new homes, some of which could be used for sanitation facilities for individual homes of disabled or ill persons with a physician referral, with priority for BIA Housing Improvement Projects.

Construction of Health Care Facilities

FY 2015 Enacted $ 85,048,000
FY 2016 Admin. Request $185,048,000
FY 2016 Enacted $105,048,000

While the Act includes a $20 million increase over FY 2015, this is $80 million less than the Administration's request. We do not have a breakdown on the distribution of the funds, but the Administration's request of $185 million would have provided funds for the Gila River Southeast Health Center (Chandler, AZ); Salt River Northeast Health Center (Scottsdale, AZ); Rapid City Health Center; and New Dilkon (AZ) Alternative Rural Health Center.

If we may provide additional information or assistance regarding FY 2016 Indian Health Service appropriations, please contact us at the information below.

# # #

Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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