December 21, 2018
Potential Government Shutdown Approaching:
Legislation Introduced to Keep IHS Funded
What Tribes Can Expect During & After a Shutdown
The federal government may be undergoing a partial shutdown if Congress fails to pass a Continuing Resolution (CR) by the end of the day today, December 21, 2018.  At the time of this writing, it is unclear if the Congress and the President will reach an agreement to keep the government open by tonight. President Trump has indicated that he will not sign legislation that does not fund the border wall. Senate Democrats have said that they will not accept that option.

This would be the third shutdown of 2018, after funding lapsed for three days in January and several hours in February as Congress and the White House negotiated a funding agreement. That agreement lasted until September 30, the end of Fiscal Year (FY) 2018. On September 28, President Trump signed a CR into law funding the government through December 7, and Congress passed a two week extension into law as that deadline neared, funding the government through December 21.

If the government shuts down, the Indian Health Service (IHS) will be impacted. However, Congressman Markwayne Mullin (R-OK), Cherokee Nation, has introduced HR. 7362, the Pay Our Doctors Act , to provide the IHS with funding for the entire fiscal year in the event of a shutdown. This would ensure both that IHS administrative staff remain at work and able to process payments to Self-Governance Tribes and that Direct Service Tribes would not experience any disruption. Urban Indian health facilities would also remain funded during the shutdown should Rep. Mullin’s bill be enacted. You can read the full statement from Congressman Mullin’s office here .

Several agencies will not be affected at all by the shutdown and will remain open even if the CR expires. Congress’ regular appropriations process funds the federal government through twelve spending bills, five of which have been signed into law by the President. The agencies covered by these five appropriations bills are funded until September 30, 2019, and are not subject to the CR. Because the Labor-HHS bill, which funds the Department of Health and Human Services (but not IHS) has been enacted, public health programs working in Indian Country and funded by HHS will not be impacted. Unfortunately, the appropriations bill funding the IHS has not passed Congress yet, so IHS is operating under the CR until December 21.
                             
Before the brief 2018 shutdowns, the most recent government shutdown occurred in 2013 and lasted for over two weeks. Government shutdowns are enormously disruptive, with many federal functions, such as park services, oversight, and reimbursement duties not performed. Only federal employees performing duties essential to national security and human safety continue to work.

In the event of a government shutdown:
  • Indian Health Service will continue to provide direct clinical health care services because they involve the safety of human life.
  • Some programs and activities that are not directly related to the safety of human life may not be available during a shutdown.
  • Tribally-operated health programs will continue to operate under the direction of the Tribe and each Tribe will determine how to address the impact from a government shutdown.

 
What Happens During a Shutdown?
Shutdowns occur when Congress fails to pass legislation funding the government. When this happens, federal employees are furloughed and their job responsibilities are not performed. Essential personnel, especially those working in areas of security and human safety, are exempt from the furloughs and continue to work. Federal reimbursements and disbursements made under grant agreements, compacts, or contracts do not go out to the recipients during this time. Technical assistance or policy guidance normally provided by federal employees also do not take place. Shutdowns can range from anywhere from a day to several weeks. 

It is important to note that the Special Diabetes Program for Indians (SDPI) is funded through mandatory appropriations and has funding through September 30, 2019. Staff funded through SDPI would not be impacted by the shutdown.
 
Because shutdowns are so impactful, Congress is usually very eager to avert the shutdown entirely or, failing that, to pass a CR as quickly as possible.

 
How Does a Shutdown Impact Direct Service Tribes?
At this time, the IHS has not released a specific shutdown plan. However, according to the Department of Health and Human Services 2019 shutdown contingency plan, which you can read in full  here :
 
"Indian Health Service (IHS) - IHS would continue to provide direct clinical health care services as well as referrals for contracted services that cannot be provided through IHS clinics...

IHS – 8,803 IHS staff would [continue to work during a shutdown] for the provision of direct medical care. This number reflects [full time employees] at all of the IHS service unit facilities where direct health care is provided. The contingency plan provides for health care to continue at all of these locations. While some preventive health services would continue to be provided (e.g., well child exams or prenatal visits), the predominant care provided would be treatment services for acute conditions or monitoring of chronic diseases for complications. The IHS annual appropriation is not large enough to provide the level of medical services that, for example, Federal employees receive through FEHB and IHS already defers needed medical services. In addition, most IHS facilities are in remote locations, where there are few if any other providers. As a result of these factors, IHS does not anticipate further reducing the number of inpatient/outpatient visits during a hiatus. While the furlough percentage is lower than in FY 1996, the lower percentage reflects changes in the way IHS does business, including significant reductions in the number of headquarters administrative staff…

Activities that would not continue include:
IHS – IHS could only perform national policy development and issuance, oversight, and other functions necessary to meet the immediate needs of the patients, medical staff, and medical facilities. IHS would be unable to provide the majority of funds to Tribes and Urban Indian Health programs.”
 
It is important to note that this plan may not reflect the actual steps HHS will take in the event of a shutdown.  The information available at this time suggests that, while IHS facilities will remain open and IHS medical providers will still serve patients during a shutdown, Tribes receiving healthcare services directly from IHS may still experience disruptions.  Some of the 176 IHS-run facilities may have to operate only during certain hours or limit the number of services they can offer. Most administrative services at IHS facilities will be curtailed for the duration of the shutdown. IHS employees providing medical care will continue to work during a shutdown; however, other employees such as administrators and office managers may be furloughed. This will make it difficult or impossible for Tribal members and other IHS beneficiaries to schedule appointments or receive follow up services. Many facilities offer reminder notifications via phone to patients for appointments made several months prior; these services would discontinue during the shutdown.
 
Additionally, healthcare access may be impacted in other ways. The shutdown will have a ripple effect that Tribal communities will feel with unique keenness, since many services provided by Tribal governments often receive federal funding. In 2013, for example, one Tribe in Montana had to furlough its bus drivers during the shutdown, meaning any Tribal members who depended on the bus to travel to the health clinic were unable to receive care.

 
How Does a Shutdown Impact Self Governance Tribes?
The impact a shutdown would have on Self Governance Tribes will vary from Tribe to Tribe. Since these Tribes run their own programs with federal funding, the immediate impacts of a shutdown will depend on the level of funding currently in their accounts. Importantly, during the shutdown, the federal government will make no payments to Tribally run healthcare facilities or Urban Indian Health facilities. This means that each Tribal health system will need to make its own preparations and adjustments based on the resources it has available at the time of the shutdown. NIHB has heard from a large Tribe located in Arizona that the effects of a shutdown will be felt by Tribal patients on "the same day," meaning that the Tribe will not have enough funds in reserve to continue providing care at the normal capacity for any length of time.
 
Tribes that operate their own healthcare programs will each determine how to adjust to the shutdown. Some may furlough employees, including specialized medical staff, in favor of keeping emergency services available for as long as possible. Others may close certain facilities entirely if the shutdown persists. It is possible for Tribes to use funds from different sources to fund healthcare needs to make up for the federal government's failure to uphold the trust responsibility, but there is no guarantee that these funds will be reimbursed by the federal government after the shutdown ends. In 2013,  IHS encouraged Tribes  to reallocate Tribal resources to make up for the federal shortfall. The 2013 shutdown forced six Tribes to suspend food distribution programs to needy Tribal members rather than cut services to other programs like healthcare.

 
What Happens After the Shutdown Ends?
Once the government reopens and federal employees return to work, the agencies begin sending out overdue funds to the programs, contracts, and compacts. Depending on the funding bill, this may include retroactive funding for the time the government was shut down. Specifically, IHS would begin resending funds due to Tribal and Tribal organization healthcare facilities as required under Tribal compacts, as well as Urban Indian Health facilities. Under normal circumstances, the money is allocated by Congress to HHS, which allocates a portion to IHS, which divides funding between the Office of Direct Service Tribes and the Office of Self Governing Tribes. Each of these offices then disperse the funds based on a line item budget. This process takes time and can delay Tribal receipt of reimbursement, sometimes by as much as two weeks. Therefore, even after a shutdown ends, Tribes may still need to plan for a shortfall of federal funds until the funds are dispersed.

 
How Can Indian Country Avoid This Situation in the Future?
The federal government funds its trust responsibility for health by funding the Indian Health Service through the annual discretionary appropriations process. This process funds most federal agencies. However, entitlement programs such as the Social Security Administration, Medicare, and Medicaid are funded through mandatory spending, meaning that Congress does not have to appropriate funds each year for these programs to function. Placing IHS and other programs vital to Tribal health needs under mandatory spending would lessen the impact on Tribal health during future shutdowns. You can read more about the Appropriations process  here .
 
A second way to avoid this situation would be for Congress to enact Advance Appropriations. This is a very simple method of providing funds: Congress simply enacts appropriations a year in advance. IHS, and thus the Tribes, would know how much money will be available for their 2019 health programs in 2018. Advance Appropriations would prevent last minute decisions in preparation for a shutdown and allow administrators to plan out the year ahead with more clarity than is available to them now. Recently, the Government Accountability Office released a report on the feasibility of IHS advance appropriations. It is available here . You can read more about Advance Appropriations  here .
 
NIHB has advocated for both mandatory appropriations and advance appropriations in Congress for several years. These policy changes are also supported by the IHS Tribal Budget Formulation Workgroup's  request

While these solutions are not likely to be considered by Congress in 2018, there are two things Tribes can do right now to advocate for Tribal health funding during a government shutdown:
 
  • First, Rep. Mullin’s bill, the Pay Our Doctors Act mentioned above, would provide the full fiscal year of funding for IHS in the event of a shutdown. By encouraging their Congress members to support the legislation, Tribes will help ensure that IHS remains at current capacity without disruption.

  • Second, if your Tribe experienced a disruption in the 2013 or 2018 shutdowns, please let NIHB know how your Tribe was impacted. Specific Tribal experiences must be shared with our champions on Capitol Hill as they work to secure long term, stable funding for the Indian health system.

For additional q uestions, please contact NIHB Director of Congressional Relations, Caitrin Shuy, at cshuy@nihb.org