The National Indian Health Board is a dedicated advocate in Congress on behalf of all Tribal Governments and American Indians/Alaska Natives. Each weekly issue contains a listing of current events on Capitol Hill, information on passed and upcoming legislation, Indian health policy analysis, and action items. To view all of our legislative resources, please visit www.nihb.org/legislative/washington_report.php.
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In This Week's Washington Report
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Fort Defiance To Be Reimbursed for Contract Support Costs After 90 Percent Slash To Funding
On May 26, 2022, the United States District Court of New Mexico ruled in favor of the Fort Defiance Indian Hospital Board (FDIHB) to be reimbursed for contract support costs (CSC). The Court ordered Indian Health Service (IHS) to reimburse FDIHB $16.6 million in monthly payments for CSC for Fiscal Year (FY) 2022. The ruling found that a 90 percent reduction of contract support costs is causing "irreparable injury" to Fort Defiance. Detrimentally harming Fort Defiance's inability to provide essential health services to patients amid the COVID-19 pandemic, Fort Defiance was forced to reduce the number of contract nurses because the reduction in CSC would have covered the salaries of permanent staff members. Fort Defiance asserted the Agency was "inspired" by the Cook Inlet decision.
Fort Defiance Indian Health Board, Inc.
The Fort Defiance Indian Health Board (FDIHB) is a tribally-charted nonprofit healthcare organization that owns and operates a hospital campus in Fort Defiance, Arizona, and runs a health clinic in Sanders, Arizona. The FDIHB serves more than 47,000 people and most of the Navajo Nation. Under the Indian Self-Determination and Education Assistance Act (ISDEAA), the Navajo Nation designed Fort Defiance as a 'Tribal organization' for the purpose of contracting with IHS to run and operate certain health programs.
Since 2010, the FDIHB has successfully been in three-year contracts with IHS. During contract renewal proposal negotiation that began in August of 2021, FDIHB submitted FY2022 'Annual Funding Agreement' which included a proposal of indirect CSC of $18,405,910. Replying back, IHS then stated the correct indirect CSC rate should be $18,515,007. In December of 2021, IHS replied with a partial declination that denied the full indirect CSC funding and to only fund at $1,887,739 – a 90 percent reduction rate. Pointing to prior years of funding, IHS indicated that earlier indirect CSC had included duplicative funding amounts and FY2022 indirect CSC should therefore be reduced. FDIHB had been proposing CSC using an approved methodology. IHS did not state an issue with the methodology in the first rounds of contract negotiation.
After IHS reduced indirect CSC by 90 percent, the FDIHB filed a lawsuit against IHS in February 2022. While the outcome of the lawsuit is still pending, FDIHB then asked the Court to either permanently restore its full indirect CSC of $18.5 million or temporarily cover that sum until the decision of the lawsuit. The Court held a hearing on April 26 and a decision was made on May 26. In this decision, the Judge stated that is very likely IHS, in its partial declination, violates the ISDEAA and that the erroneous 90 percent reduction rate claim is "likely to succeed" amid the lawsuit. This is on the basis that IHS may not retroactively reduce the 'secretarial amount' of CSC in years prior to the initial contract term and that the same methodology to calculate CSC rate was used during the recent and prior contract negotiation proposals. There was no substantial and material change from recent to prior CSC rates to justify a 90 percent reduction. Thus, while still waiting for the outcome of the lawsuit, the Judge ordered to comply with Fort Defiance's FY2022 renewal contract proposal of $18,515,007 in indirect CSC – to reimburse the loss of the 90 percent reduction in the amount of $16,627,268 on a prorated monthly basis.
Cook Inlet Tribal Council, Inc.
The Cook Inlet Tribal Council, Inc. (CITC) represents eight federally-recognized Tribes in Alaska. Under ISDEAA, CITC has a contract with IHS to operate an alcohol recovery program. Opened in 1992 in Anchorage, Alaska, the center has expanded over the years from residential treatment to including outpatient facilities and capabilities. In 2014, CITC received $2 million from IHS to run the program. CITC proposed to change the agreement of the contract to add $400,000 in annual facility costs to be funded as contract support costs. Although IHS declined this proposal, CITC sued IHS and was ordered to reimburse Cook Inlet in 2018.
Taking a turn of events, in August of 2021, the Cook Inlet Tribal Council, Inc. V. Dotomain ruled that council's facility costs are not CSC and overturned the 2018 ruling. Since the facility costs are what the IHS would normally incur if they were to run the program, they are not eligible for reimbursement as CSC. The case points back to the council's first contract negotiations in 1992 where the facilities costs that included rent and a partial salary for a facilities coordinator were paid from the secretarial amount – not from CSC.
Indian Health Service Contract Support Cost Amendment Act
In response to the Cook Inlet decision, the National Indian Health Board (NIHB) took formal action to support a legislative fix for contract support cost administration to correct the decision. NIHB and Tribal organizations wrote to Congressional leadership to urge the adoption of an amendment to ISDEAA.
On April 7, 2022, Representative Tom Cole (R-OK-4) introduced a bill to amend the ISDEAA that would secure existing Tribal contract support cost reimbursements. The bill titled Indian Health Service Contract Support Cost Amendment Act, H.R 7455, restores the status quo of CSC in light of the Cook Inlet decision.
NIHB applauds the work of Representative Cole and his work for Tribal nations to continue providing healthcare without disruptions and is committed to overseeing the passage of this bill. To read the letter NIHB sent to Cole's office on April 26 sharing our support for H.R 7455, see here.
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Indian Health Service Director Nominee Appears Before Senate Committee on Indian Affairs, Addresses Commitment and Tenure to the Agency
Presiding over the nomination hearing, Chairman Brian Schatz (D-HI) initially remarked: “The [IHS] Director is more than just a manager of a multimillion-dollar budget and over 15,000 full time federal employees. The Director is the most senior Senate-confirmed official in Native health, charged with developing IHS healthcare policies, respecting tribal sovereignty, promoting tribal self-determination. All are key to fulfilling the agency’s mission to raise the health outcome of Native communities.”
NIHB passed Resolution 22-02 on February 24, 2022, calling on President Biden to nominate an IHS Director to ensure that IHS has a leader who can set forth a vision to address the health disparities that American Indian/Alaska Native (AI/AN) people face.
On March 7, 2022, NIHB sent a letter to the SCIA to highlight the ambitious, necessary priorities the Tribes expect the new Director to embrace. The agency must have a permanent, competent leader who is capable and willing to advocate and act with diplomacy and tenacity, to respect Tribal nations and their voice, and to transform and reform institutional operations through innovative, effective, and sustainable systems-wide changes.
A citizen of the Navajo Nation, Roselyn Tso is currently the Director of the Navajo Area of IHS, and previously held the position of Director of the Office of Direct Services and Contracting Tribes at IHS. Tso began working for IHS in 1984, and prior to working with the Navajo Area, she spent years working in the Portland Area, which included roles such as the Portland Area Planning and Statistical Officer, Equal Employment Officer, Special Assistant to the Area Director, and as Director of the Office of Tribal and Service Unit Operations. As Director for Tribal and Service Unit Operations, she was responsible for implementing the Indian Self-Determination and Education Act, working directly with Tribes and direct service Tribes.
Concerning Tribal consultation, Tso stated in her testimony before the committee: “Certainly, the Indian Health Service as well as [Department of Health and Human Services] has a robust Tribal consultation process that we utilize. However, it is more than that. It’s not just meeting and having a conversation with Tribal leaders. It is really understanding the needs of each Tribal community to help them best serve the people in their communities.”
Currently, IHS is led by Acting Principal Deputy Director Elizabeth Fowler, who has been serving on an interim basis since the resignation of Rear Admiral Michael Weahkee on January 20, 2021. The absence of a confirmed Director impedes the ability of both the Tribes, the Administration as well as Congress to carry out a bold vision for the Indian, Tribal and Urban, or I/T/U, system for which the IHS is responsible.
Next Steps
The record for the nomination hearing will remain open for two weeks. During this time, Senators serving on the committee may meet with Tso to ask questions of the nominee. It is unclear when a vote will be held to pass the nomination out of committee. The nomination of IHS Director will then need to be confirmed by the full Senate through a simple majority.
You can watch the recorded nominee hearing here.
For any questions regarding the nomination and confirmation process for the Director of the Indian Health Service, please contact Ciara Johnson, Congressional Relations Associate at [email protected]
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Sharice Davids (D-KS-03)
Indian Healthcare Legislation
Representative Davids cosponsored H.R 6406 Stronger Engagement for Indian Health Needs Act which would elevate the Director of the Indian Health Service (IHS) to an Assistant Secretary for Indian Health within the Health and Human Services. Under this bill, the Assistant Secretary for Indian Health would report directly to the Secretary. It brings parity to certain authorities of the new Assistant Secretary similar to other agencies. The bill was referred to the House Natural Resources and the Energy and Commerce Committees for consideration.
Representative Davids introduced the Truth and Healing Commission on Indian Boarding School Policies Act on September 30th, 2021 with Senator Warren (D-MA) who introduced the Senate companion bill. This bill would establish a Commission to investigate the effects of the Indian boarding school policies and make recommendations to the federal government to heal the resulting trauma. The bill is scheduled for markup on Wednesday, June 8, 2022, at 10:00 AM. To view the markup, watch on the Natural Resource's committee page here.
The National Indian Health Board (NIHB) of Directors passed Resolution no. 22-01 on February 24, 2022, which encourages the U.S. government to accept responsibility for the boarding school policy, provide direct non-competitive funding to Tribes, assist with healing from historical and intergenerational trauma from the boarding school policies, and provide resources for programmatic services that encourage reclamation of American Indian/Alaska Native (AI/AN) languages. Read the resolution here.
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Indian Health Services Allocates First Rounds of Funds Bringing Safe Water to Tribal Communities
The IHS Sanitation Facilities Construction program identified 71,000 American Indian/Alaska Native (AI/AN) homes with water and sanitation deficiencies. The goal is to raise those homes to a Deficiency Level of 1 which means a sanitation system that complies with all applicable water supply and pollution control laws and only needs routine replacement, repair, or maintenance needs.
Of the 71,000 AI/AN homes, IHS categorized the homes into Tiers. Tier 1 projects are considered ready to fund because planning is complete. IHS will allocate $581 million for project construction costs for 475 Tier 1 projects and will allocate $60 million for the design and construction document creation activities related to Tier 1 projects. Tier 2 projects have a level of their engineering assessment complete, have a well-understood deficiency, and recommended solution. Tier 3 projects have deficiencies identified but are still in the planning phase and identifying solutions. Currently, there are 661 Tier 2 projects and 361 Tier 3 projects of which $33 million will be allocated for Tier 2 and Tier 3 projects.
Regarding the sanitation projects, the IHS Acting Director Elizabeth Fowler testified before the Senate Committee on Indian Affairs on May 4. The purpose of the hearing entitled "Setting New Foundations: Implementing the Infrastructure Investment and Jobs Act for Native Communities" was to hear from Tribal leaders and administration officials regarding the implementation status and how it is benefiting Native communities thus far.
In her opening statement, Ms. Fowler applauded the historical funding of the IHS Sanitation Facilities Construction program which was funded at $3.5 billion. At the end of 2021, 1.9 percent of AI/AN homes lacked water supply or wastewater capabilities, and 29 percent of AI/AN homes require some form of sanitation improvement. Those homes that are geographically remote require higher capital costs than those homes with similar infrastructure needs. Homes without access to adequate water service are associated with higher hospitalization rates for pneumonia, flu, and respiratory viruses. Likewise, higher illnesses are associated with a lack of adequate water services to wash hands. Thus, Fowler purported IHS support is an integral component of the prevention of diseases outlined.
Ms. Fowler noted how the duration of the sanitation and water projects could be extended by several years. Under the IIJA funding, no more than 3 percent is to be used for salaries, expenses, and administration purposes; however, that 3 percent allocation will most likely extend the duration project timeline because it cannot be used for Tribal technical assistance – it is limited to federal purposes. Thus, possibly extending the average duration of sanitation projects from 3.6 years to several years. Moreover, IHS's shortage of staffing and technical capacity will also contribute to the extended timeline of projects if IHS does not procure more support.
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