On March 23, 2018, President Trump signed the Consolidated Appropriations Act, 2018 (Act) which funded the Indian Health Service (IHS) and other federal agencies through the remaining six months of fiscal year 2018. The Act is PL 115-141 and IHS bill language is in Division G of the Act. Prior to this signing, Congress had enacted five short-term Continuing Resolutions (CRs) to fund federal agencies at basically their FY 2017 levels. Congress rejected the deep cuts recommended by the Administration for IHS. The IHS made out well in the Act due in significant part to the earlier enactment of the Bipartisan Budget Act of 2018 (PL 115-123) which raised the spending cap on domestic discretionary spending cap by $63 billion for FY 2018 (and by $68 billion for FY 2019). As a result there are IHS programs funded for FY 2018 at significantly higher levels – notably in the Facilities Account– than either FY 2017 enacted appropriations or what was earlier (before the budget cap was raised) recommended for FY 2018 funding by the House or the Senate Interior Appropriations Subcommittee.
In lieu of a Conference Report, the Act is accompanied by a Joint Explanatory Statement which provides that the IHS is to comply with House Report language (H. Rept. 115-238) unless the Statement provides otherwise. Much of the Senate Interior Appropriations Subcommittee explanatory statement accompanying its recommendations last November is repeated in the Joint Explanatory Statement accompanying the Act as it was not filed as an official Committee report.
The Consolidated Appropriations Act, FY 2018 bill and Explanatory Statement language may be found in the March 22, 2018, three-volume CONGRESSIONAL RECORD. Our General Memorandum 17-059 of December 18, 2017, provides a comparison of the House and Senate FY 2018 IHS budget recommendations prior to the additional funding that became available as a result of the Bipartisan Budget Act. We reported on the Bipartisan Budget Act of 2018 in our General Memorandum 18-008 of February 9, 2018.
IHS OVERALL FUNDING
FY 2017 Enacted $5,039,886,000
FY 2018 Admin. Request $4,739,291,000
FY 2018 House $5,136,873,000
FY 2018 Senate Mark $5,040,886,000
FY 2018 Enacted $5,537,764,000
The Act increases IHS funding by nearly $500 million over FY 2017 which is a 10 percent increase.
Current Services (Pay Costs/Medical Inflation). The Act overall contains $98.2 million for pay costs increases and medical inflation, approximately $25 million over the FY 2017 amount.
Staffing Packages. The Act overall provides $65.8 million for staffing of newly opened health facilities. The Joint Explanatory Statement notes that this should fund the full amount estimated in a recent update to the Committees. Funds are for facilities funded through the Health Care Facilities Construction Priority System or the Joint Venture Construction Program that have opened in FY 2017 or will open in FY 2018. Of note is that the CR signed into law on December 21, 2017, contained $12.8 million in IHS funds for staffing packages.
Indian Health Care Improvement Act Unfunded Authorities Report. The House Report repeats the language from FY 2017 regarding funding for Indian Health Care Improvement Act authorizations. In the FY 2018 Budget Justification, IHS stated that 90 days is an insufficient time to provide the required report and also that the cost of it would be significant. The Joint Explanatory Statement repeats that the Committees want the report within 90 days of enactment. The House Report language is as follows:
It has been over six years since the permanent reauthorization of the Indian Health Care Improvement Act (IHCIA), yet many of the provisions in the law remain unfunded. Tribes have specifically requested that priority areas for funding focus on diabetes treatment and prevention, behavioral health, and health professions. The Committee requests that the Service provide, no later than 90 days after the date of enactment of this Act, a detailed plan with specific dollars identified to fully fund and implement the IHCIA.
Reimbursable Funding. The Joint Explanatory Statement directs the IHS to report on population and service growth over the past 10 years and the funding sources used to address these needs:
This agreement directs the Service to report, within 180 days of enactment of this Act, on patient population and service growth over the past ten years and the funding sources used to provide for these medical services. The IHS is to include a breakdown, by dollar amount and percentage, of funding sources which supplement appropriated dollars to cover the provision of medical services at IHS operated and tribally contracted and compacted facilities. The Committees are interested in detailed information on whether medical services have been able to expand over this time period as a result of increases in the ability to charge medical services due to new authorities outlined in the Indian Health Care Improvement Act and other Federal laws. As a point of comparison, and to the extent possible, the Service shall compare these impacts across the twelve Service areas, with the degree to which patient populations services in the respective states has increased.
CONTRACT SUPPORT COSTS
FY 2017 Enacted Such sums as may be necessary
FY 2018 Admin. Request Such sums as may be necessary
FY 2018 House Such sums as may be necessary
FY 2018 Senate Mark Such sums as may be necessary
FY 2018 Enacted Such sums as may be necessary
The Act continues Contract Support Costs (CSC) as a separate appropriation account with an indefinite amount—”such sums as may be necessary.” The Joint Explanatory Statement notes:
The agreement continues language from fiscal year 2017 establishing an indefinite appropriation for contract support costs estimated to be $717,970,000, which is equal to the request. By retaining an indefinite appropriation for this account, 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. The Committees believe fully funding these costs will ensure Tribes have the necessary resources they need to deliver program services efficiently and effectively.
Fortunately for tribes, Congress again ignored two CSC restrictions proposed in the President’s Budget: (1) a command to count unspent CSC against a tribe’s requirement in the next year—a provision that could be read to deny the carryover authority in the ISDEAA; and (2) a “notwithstanding” clause that IHS has relied on, in part, to deny CSC for some grant programs, such as the Substance Abuse and Suicide Prevention program and the Domestic Violence Prevention Initiative. For FY 2018, Congress has gone further on this matter and has called upon IHS to provide CSC for these programs. The Explanatory Statement provides:
ISDEAA Contracts. – The Committees encourage the transfer of amounts provided to tribal organizations for the Substance Abuse and Suicide Prevention Program, for the Domestic Violence Prevention Program, for the Zero Suicide Initiative, for aftercare pilots at Youth Regional Treatment Centers, and to improve collections from public and private insurance at tribally-operated facilities to such organizations through Indian Self-Determination Act compacts and contracts, and not through separate grant agreements. This will ensure that associated administrative costs will be covered through the contract support cost process.
The Act continues by reference sections 405 and 406 of the FY 2015 Appropriations Act. These provisions prohibit BIA and IHS from using FY 2018 CSC funds to pay past-year CSC claims or to repay the Judgment Fund for judgments or settlements related to past-year CSC claims. They do not preclude tribes from recovering such judgments or settlements from the Judgment Fund. The following is from Division G, Title IV of the Act:
Contract Support Costs, Prior Year Limitation
Sec. 405. Sections 405 and 406 of division F of the Consolidated and Further Continuing Appropriations Act, 2015 (Public Law 113-235) shall continue in effect in fiscal year 2018.
Contract Support Costs, Fiscal Year 2018 Limitation
Sec. 406. Amounts provided by this Act for fiscal year 2018 under 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 2018 with the Bureau of Indian Affairs or the Indian Health Service:
Provided, That such amounts provided by this Act are not available for payment of claims for contract support costs for prior years, or for repayment of payments for settlement or judgments awarding contract support costs for prior years.
FUNDING FOR INDIAN HEALTH SERVICES
FY 2017 Enacted $3,694,462,000
FY 2018 Admin. Request $3,574,365,000
FY2018 House $3,867,260,000
FY 2018 Senate Mark $3,759,258,000
FY 2018 Enacted $3,952,290,000
Current Services/Staffing. The Act provides in the Services Account $23.5 million for pay costs increases, $70.4 million for medical inflation, and $60.3 million for staffing of newly opened facilities.
HOSPITALS AND CLINICS
FY 2017 Enacted $1,935,178,000
FY 2018 Admin. Request $1,870,405,000
FY 2018 House $1,966,714,000
FY 2018 Senate Mark $1,982,312,000
FY 2018 Enacted $2,045,128,000
Current Service/Staffing. Of the total $36 million is for current services (pay costs and medical inflation) and $43.7 million for staffing of new facilities.
Tribal Clinic Leases. The Act provides $11 million for village built and tribally leased clinics, the same as FY 2017 enacted. The Administration proposed only $2 million for this purpose. Congress rejected the Administration’s proposal for bill language to amend the law in order to avoid full compensation for section 105(l) Indian Self-Determination and Education Act leases which would be contrary to the decision in Maniilaq Association v. Burwell, 170 F. Supp.3rd 243 (D.D.C. 2016).
Accreditation Emergencies. The Act provides $58 million for hospital accreditation emergencies, $30 million over the FY 2017 level. The Joint Explanatory Statement reads:
Accreditation Emergencies.-The Committees consider the loss or potential loss of a Medicare or Medicaid agreement with the Centers for Medicare and Medicaid Services (CMS) at any facility to be an accreditation emergency. The agreement includes $58,000,000 for accreditation emergencies at an increasing number of direct service facilities, and is based upon updated and itemized information provided to the Committees on December 13, 2017. The Service is encouraged to share this information with Tribes, and to keep Tribes and the Committees apprised of any need for significant deviations from the planned used of funds. Bill language has been added as requested to allow the use of a portion of the funds for facility expansion or renovation and staff quarters.
Of the amounts provided, no less than $20,000,000 is directed to facilities for purchased/referred care, replacement of third-party revenues lost as a result of decertification, replacement of third-party carryover funds expended to respond to decertification, and reasonable costs of achieving recertification, including recruitment costs necessary to stabilize staffing. Primary consideration should be given but is not limited to facilities that have been without certification the longest. Such funds shall be made available to Tribes assuming operation of such facilities pursuant to the Indian Self-Determination and Education Assistance Act of 1975 (P.L. 93-638).
The Committees are concerned by the continued occurrence of deficiencies in patient care, facilities and hospital administration at IHS facilities, including the recent identification of these deficiencies at the Gallup Indian Medical Center (GIMC) by the Centers for Medicare and Medicaid Services (CMS) and the Joint Commission. It is imperative that the Service take all needed steps to ensure patient safety, improve the quality of care, and ensure that GIMC does not lose access to third party reimbursements, which account for more than 90 percent of the facility’s funding. Within 90 days of enactment of this Act, the Service is directed to provide a report to the Committees that details all actions taken to address the deficiencies identified by CMS and the Joint Commission and a list of any outstanding recommendations that require future action by GIMC or the Service to implement. The Service is expected to include its corrective action plans submitted to CMS and the Joint Commission as well as the CMS 2567 deficiency report as part of this report.
The following House Committee Report language is related to the accreditation crisis and the issue of communication between the IHS and tribes:
The accreditation crisis in the Great Plains and the subsequent House provision have highlighted the need for IHS facilities to be significantly more inclusive of Tribes in the decision-making process. The Committees on Appropriations are encouraged by the IHS’s own recent initiative to reform its governing boards, but reforms are limited under existing statutes. The Committees are aware that the authorizing committees of jurisdiction are examining this issue and support these efforts to improve the communication and collaboration between the IHS and Tribes at direct service facilities.
Domestic Violence Prevention Initiative. The Act includes $4 million to continue this program.
Prescription Drug Monitoring. The Act provides $1 million to continue the multi-state prescription drug monitoring program authorized by Section 196 of the Indian Health Care Improvement Act, equal to the FY 2017 enacted level.
Teleophthalmology Program. The Act includes $1 million for the teleophthalmology program for retinal camera upgrades.
FY 2017 Enacted $182,597,000
FY 2018 Admin. Request $179,751,000
FY 2018 House $185,920,000
FY 2018 Senate Mark $189,790,000
FY 2018 Enacted $195,283,000
Current Services/Staffing. Of the total amount, $5.8 million is for current services and $6.8 million is for staffing of new facilities.
Oral Health Care. The House Committee Report states:
The Committee has recognized for many years the dire need to increase oral health care to American Indians/Alaska Natives. Because of funding increases, an additional 263,565 dental services were provided in fiscal year 2016. However, the demand for dental treatment remains overwhelming due to the high incidence of dental caries (cavities) in AI/AN children. Over 80 percent of AI/AN children ages 6–9 and 13–15 years suffer from dental caries, while less than 50 percent of the U.S. population in the same age cohort have experienced tooth decay. The Committee recognizes that more needs to be done to fully address the need for oral health care.
The Joint Explanatory Statement provides the following: “The Service is directed to backfill vacant dental health positions in headquarters and encouraged to coordinate with the Bureau of Indian Education to integrate preventive dental care at schools across the system.”
FY 2017 Enacted $94,080,000
FY 2018 Admin. Request $82,654,000
FY 2018 House $95,450,000
FY 2018 Senate Mark $97,201,000
FY 2018 Enacted $99,900,000
Current Services/Staffing. Included in the total is $2.9 million each for current services and for staffing of new facilities.
Behavioral Health. The Act provides $6.9 million to continue behavioral health integration and $3.6 million to continue the suicide prevention initiative.
ALCOHOL AND SUBSTANCE ABUSE
FY 2017 Enacted $218,353,000
FY 2018 Admin. Request $205,593,000
FY 2018 House $220,280,000
FY 2018 Senate Mark $219,655,000
FY 2018 Enacted $227,788,000
Current Services/Staffing. Within the total is $8.2 million for current services and $1.2 million for staffing of new facilities.
Programs. Included is $6.5 million for the Generation Indigenous initiative; $1.8 million for the youth pilot project; and $2 million for detoxification and related services “provided by the Service’s public and private partners to IHS beneficiaries”.
The Joint Explanatory Statement says that IHS is to continue its partnership with the Na’Nizhoozhi Center in Gallup, NM and “to distribute funds provided for detoxification services in the same manner as fiscal year 2017.”
FY 2017 Enacted $928,830,000
FY 2018 Admin. Request $914,139,000
FY 2018 House $928,830,000
FY 2018 Senate Mark $930,484,000
FY 2018 Enacted $962,695,000
Current Services/Staffing. Of the total $32.3 million is for current services and $1.5 million for staffing of new facilities.
CHEF. $53 million is for the Catastrophic Health Emergency Fund (level funding).
Distribution of Funds. The House Committee expresses concern regarding distribution of funds and encourages, in certain circumstances, agreements with non-IHS federal facilities:
The Committee remains concerned about the inequitable distribution of funds as reported by the Government Accountability Office (GAO– 12–446). The IHS is encouraged to evaluate the feasibility of entering into reimbursable agreements with Federal health facilities outside of the IHS system for patient referrals. Such agreements should be considered only when such referrals save costs and patient travel times relative to referrals to the nearest non-Federal health facilities, and when such referrals do not significantly increase patient wait times at such Federal facilities.
INDIAN HEALTH CARE IMPROVEMENT FUND
The Act provides $72,280,000 for the Indian Health Care Improvement Fund. The last time it was funded was 2012. It is listed as its own line item under the Services account. House Report language notes the funds are provided “in order to reduce disparities across the IHS system.” Bill language provides that the Fund “may be used, as needed, to carry out activities typically funded under the Indian Health Facilities Account.”
PUBLIC HEALTH NURSING
FY 2017 Enacted $78,701,000
FY 2018 Admin. Request $77,498,000
FY 2018 House $80,372,000
FY 2018 Senate Mark $82,546,000
FY 2018 Enacted $85,043,000
Current Services/Staffing. Within the total is $2.7 million for current services and $3.6 million for staffing of new facilities.
FY 2017 Enacted $18,663,000
FY 2018 Admin. Request $18,313,000
FY 2018 House $18,896,000
FY 2018 Senate Mark $19,193,000
FY 2018 Enacted $19,871,000
Current Services/Staffing. Within the total is $724,000 for current services and $484,000 for staffing of new facilities.
COMMUNITY HEALTH REPRESENTATIVES
FY 2017 Enacted $60,325,000
FY 2018 Admin. Request $58,906,000
FY 2018 House $60,825,000
FY 2018 Senate Mark $60,325,000
FY 2018 Enacted $62,888,000
HEPATITIS B and HAEMOPHILUS
IMMUNIZATION (Hib) PROGRAMS IN ALASKA
FY 2017 Enacted $2,041,000
FY 2018 Admin. Request $1,950,000
FY 2018 House $2,058,000 FY 2018 Senate Mark $2,058,000
FY 2018 Enacted $2,127,000
URBAN INDIAN HEALTH
FY 2017 Enacted $47,678,000
FY 2018 Admin. Request $44,741,000
FY 2018 House Committee $47,943,000
FY2018 Senate Mark $47,678,000
FY 2018 Enacted $49,315,000
Current Services. Within the total is $1.6 million for current services. The Joint Explanatory Statement provides that the IHS “is expected to continue to include current services estimates for urban Indian health in future budget requests”.
Native Veterans. The House Report comments on the need for culturally appropriate services for Native veterans and also notes the provision in the FY 2018 House Veterans Administration appropriations report (H. Rept. 115-88) requiring a report regarding the cost differential for VA to reimburse IHS for services rather than to provide services directly to urban Indian veterans:
Seven out of ten American Indians/Alaska Natives live in urban centers and receive vital culturally appropriate health services from urban Indian health organizations. As such, many Indian veterans obtain their health care services from these organizations. Currently the Veterans’ Administration (VA) and the Indian Health Service are operating under a memorandum of understanding (MOU) which is effective through June 30, 2019. Under this agreement, VA reimburses care provided to Indian veterans at IHS facilities and Tribal health programs. The MOU recognizes the importance of a coordinated and cohesive effort on a national scope to meet the needs of individual tribes, villages, islands, and communities, through VA, IHS, Tribal and Urban Indian health programs; however, to date, there has not been equitable reimbursement for the culturally appropriate services provided to Native individuals, including Native veterans. This year, House Report 115–188 accompanying the fiscal year 2018 Military Construction, Veterans’ Administration, and Related Agencies Appropriation bill included a directive requiring the VA to prepare a report for the Appropriations Committee examining the impact of Indian veterans receiving health services at urban clinics and the annual estimated cost differential for VA to reimburse IHS rather than provide services directly in these urban areas. The report is also to estimate the capacity of Indian urban clinics to treat increased Indian veteran caseloads and include any data supporting the use of the higher negotiated reimbursement rate in urban settings versus rural areas. The report is due 90 days after enactment of the Act, and the Committee directs IHS to work with the VA to complete this report.
INDIAN HEALTH PROFESSIONS
FY 2017 Enacted $49,345,000
FY 2018 Admin. Request $43,342,000
FY 2018 House $49,363,000
FY 2018 Senate Mark $49,345,000
FY 2018 Enacted $49,363,000
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.
Loan Repayment Program. The Act includes $36 million for the loan repayment program of which $18,000 is for current services. The House Report comments:
Loan repayment has proven to be the Service’s best recruitment tool for staffing health professionals. The Committee was dismayed to learn that the Service has three thousand vacancies for health professionals. Overall, this is a vacancy rate of 20 percent, with a physician shortage rate of 30 percent and a dentist rate of 18 percent. The Committee has included $49,363,000 to better enable the Service to recruit and retain health providers. The Service is urged to consider making health administrators a higher priority for loan repayments, in consultation with Tribes.
Quentin N. Burdick American Indians into Nursing Program, Indians into Medicine Program, and American Indians into Psychology Program. The Joint Explanatory Statement provides that these programs are to be funded “at no less than fiscal year 2017 enacted levels.”
Improving Access to Quality Care. The Joint Explanatory Statement provides:
Extension Services. The Committees continue to be concerned about the urgent need for skilled health providers in AI/AN communities and is encouraged by the success of the University of New Mexico’s Project ECHO—Extension for Community Healthcare Outcomes—in delivering timely care to underserved communities. The Service shall consider how Project ECHO could support existing Indian Health Service providers, and how potential partnerships with Project ECHO could aid in the recruitment and retention of healthcare providers to IHS sites, thereby expanding the provider network and improving access to care.
Patient Wait Times. The Committees are encouraged by the Service’s recent focus on improving wait times for patients seeking primary and urgent care, including the August 2017 publication of Circular No. 17–11 and related efforts to track, report, and improve patient wait times. The Committees direct the Service to provide a report to the Committees on the status of these efforts no later than 90 days after enactment of this act. This report shall include a clear explanation of how these efforts will address GAO’s recommendation in report number GAO–16–333 of setting and monitoring Agency-wide standards for patient wait times in federally operated facilities and an analysis of any potential barriers to continued monitoring of wait times caused by IT infrastructure limitations or incompatibility.
Quality of Care. The Committees are extremely concerned about the lack of access to quality healthcare for Tribes around the Nation, including the ongoing healthcare quality problems in the Great Plains. In order to address these issues, the agreement includes a pilot program and related directives to improve access to quality health services and to improve recruitment and retention of qualified medical personnel as detailed below [Housing Improvements; Workforce Development; Title 38 Personnel Authorities]:
Housing Improvements. In addition to funds provided for staffing quarters within the Facilities Appropriation, the administrative provisions section of the bill also contains new language [see below] allowing for a program to provide a housing subsidy to medical personnel at facilities operated by the Indian Health Service. The Committees are concerned that the lack of affordable and available housing plays a significant role in the agency’s personnel vacancy rates and contributes to lowering the quality of care. The Committee expects the Service to provide a plan within 90 days of enactment of this Act that details how the agency plans to use this authority is fiscal year 2018, including the measures it will use to determine whether the authority is successful and how it should be expanded in future years. The Committees have added funds for accreditation emergencies that could be made available for this purpose. The Committees also direct the Service to work with Tribes and with the Department of Housing and Urban Development to develop a long-term strategy to address professional housing shortages in Indian Country and to ensure that the Service and its partner agencies are fully utilizing existing authorities to improve the availability of housing stock.
(The bill language regarding housing subsidies is: “Provided further, That the Indian Health Service may provide to civilian medical personnel serving in hospitals operated by the Indian Health Service housing allowances equivalent to those that would be provided to members of the Commissioned Corps of the United States Public Health Service serving in similar positions at such hospitals.”)
Workforce Development. The Committees believe that expanded workforce development training for all Service personnel—including non-clinical personnel—must be part of efforts to improve healthcare quality. In addition to continuing skills development opportunities, the Committees believe that IHS should expand its efforts to provide education to all staff and Federal employee management training to facility and area leadership that will provide employees a better understanding of their obligations to report failures in quality of care.
Title 38 Personnel Authorities. The Committees are aware of significant differences between the personnel authorities used by the Service versus the Department of Veterans Affairs under Title 38 of the United States Code. The Committee believes that an analysis of these differences—which include hiring and benefits authorities—may provide strategies for recruiting and retaining qualified personnel in the same rural and remote locations as the VA. The Committees direct the Service to work with the Department of Health and Human Services to analyze the differences between the two agencies’ personnel authorities and to submit a report no later than 90 days after enactment of this Act that details the differences and makes specific legislative recommendations, as appropriate, to provide parity between the two agencies.
FY 2017 Enacted $2,465,000
FY 2018 Admin. Request -0-
FY2018 House $,2465,000
FY 2018 Senate Mark $2,465,000
FY 2018 Enacted $2,465,000
The Tribal Management grant program, authorized in 1975 under the authority of the Indian Self-Determination and Education Assistance Act, provides competitive grant funding for new and continuation grants for the purpose of evaluating the feasibility of contracting IHS programs, developing tribal management capabilities, and evaluating health services.
FY 2017 Enacted $70,420,000
FY 2018 Admin. Request $72,338,000
FY 2018 House $72,338,000
FY 2018 Senate Mark $70,420,000
FY 2018 Enacted $72,338,000
IHS estimates 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.
FY 2017 Enacted $5,786,000
FY 2018 Admin. Request $4,735,000
FY 2018 House $5,806,000
FY 2018 Senate Mark $5,786,000
FY 2018 Enacted $5,806,000
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 notes in its FY 2018 budget justification that in FY 2016, $1.9 billion was transferred to tribes to support 89 ISDEAA Title V compacts and 115 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, tribes and tribal organizations often include support for this program in their testimony on IHS funding. The Bipartisan Budget Act extended the SDPI program for fiscal years 2018 and 2019 at $150 million each year.
FUNDING FOR INDIAN HEALTH FACILITIES
FY 2017 Enacted $545,424,000
FY 2018 Admin. Request $446,956,000
FY 2018 House $551,643,000
FY 2018 Senate Mark $563,658,000
FY 2018 Enacted $867,504,000
The Administration’s proposal for the Facilities Account was especially harsh, proposing a $100 million reduction. The final FY 2018 Facilities appropriation is $421 million over the Administration’s request.
Current Services/Staffing. The Act provides for the Facilities Account $2.4 million for pay costs, $1.9 million for medical inflation, and $5.5 million for staffing for newly opened facilities.
MAINTENANCE AND IMPROVEMENT
FY 2017 Enacted $ 75,745,000
FY 2018 Admin. Request $ 60,000,000
FY 2018 House $ 77,502,000
FY 2018 Senate Mark $ 77,527,000
FY 2018 Enacted $167,527,000
As of October 1, 2016, the Backlog of Essential Maintenance, Alteration, and Repair is $515.4 million. Maintenance and Improvement (M&I) funds are provided to Area Offices for distribution to projects in their regions.
The Joint Explanatory Statement directs IHS “to provide a spend plan within 60 days of enactment of this Act detailing how IHS plans to utilize this funding.”
FACILITIES AND ENVIRONMENTAL HEALTH SUPPORT
FY 2017 Enacted $226,950,000
FY 2018 Admin. Request $192,022,000
FY 2018 House $231,412,000
FY 2018 Senate Mark $232,913,000
FY 2018 Enacted $240,758,000
Current Services/Staffing. The Act provides $3.3 million for current services and
$5.5 million for staffing of new facilities. An additional $5 million is provided “to address the increased workload in construction.”
The Joint Explanatory Statement directs the IHS to “provide a spend plan within 60 days of enactment of this Act for the additional infrastructure funding provided above the fiscal year 2017 enacted level.”
FY 2017 Enacted $22,966,000
FY 2018 Admin. Request $19,511,000
FY 2018 House $22,966,000
FY 2018 Senate Mark $22,966,000
FY 2018 Enacted $23,706,000
The Act provides up to $500,000 for TRANSAM equipment and up to $2.7 million for purchase of ambulances.
Construction of Sanitation Facilities
FY 2017 Enacted $101,772,000
FY 2018 Admin. Request $ 75,423,000
FY 2018 House $101,772,000
FY 2018 Senate Mark $101,772,000
FY 2018 Enacted $192,033,000
Within the total is $261,000 for current services. The Joint Explanatory Statement directs the IHS “to continue following its existing interpretation of criteria for the funding of new, improved, or replacement sanitation facilities.”
The sanitation facilities construction program provides funding for sanitation projects to serve new or like-new housing, existing homes, emergency projects, and studies and training related to sanitation facilities construction projects. The funds cannot be used to provide sanitation facilities for HUD-built homes.
Construction of Health Care Facilities
FY 2017 Enacted $117,991,000
FY 2018 Admin. Request $100,000,000
FY 2018 House $117,991,000
FY 2018 Senate Mark $128,480,000
FY 2018 Enacted $243,480,000
Small Ambulatory Program. The Act provides $15 million for the Small Ambulatory Program.
New and Replacement Quarters. The Act provides $11.5 million for this program and the Joint Explanatory Statement requires a report from IHS:
The Committees believe that additional funds for quarters is essential to help resolve the widespread housing shortages which have contributed to high vacancy rates for medical personnel throughout the system, particularly in rural areas. These funds have been used in areas with chronic housing shortages like Alaska and the Great Plains in order to ameliorate these problems. The Committees expect a report from the Service within 60 days of enactment of this Act on the distribution of funds.
Facility Construction Analysis. The House Report repeats language from the FY 2017 Explanatory Statement (conference report) addressing the need for a project-level funding distribution plan for healthcare facilities construction, and calls for a gap analysis of the level of healthcare services across the IHS system:
The Committee remains dedicated to providing access to health care for IHS patients across the system. The IHS is expected to aggressively work down the current Health Facilities Construction Priority System list as well as work with the Department and Tribes to examine alternative financing arrangements and meritorious regional demonstration projects authorized under the Indian Health Care Improvement Act that would effectively close the service gap. Within 60 days of enactment of this Act, the Service shall submit a spending plan to the Committees on Appropriations that details the project-level distribution of funds provided for healthcare facilities construction.
The IHS has no defined benefit package and is not designed to be comparable to the private sector health system. IHS does not provide the same health services in each area. Health services provided to a community depend upon the facilities and services available in the local area, the facilities’ financial and personnel resources (42 CFR 136.11(c)) and the needs of the service population. In order to determine whether IHS patients across the system have comparable access to healthcare, the IHS is directed to conduct and publish a gap analysis of the locations and capacities of patient health facilities relative to the IHS user population. The analysis should include: facilities within the IHS system, including facilities on the Health Facilities Construction Priority System list and the Joint Venture Construction Program list; and where possible facilities within private or other Federal health systems for which arrangements with IHS exist, or should exist, to see IHS patients.
MEDICARE LOW VOLUME PAYMENT ADJUSTMENTS
The Act contains a provision that allows retroactive payment of Medicare Low Volume Payment Adjustments to be made for tribal and non-tribal hospitals. Section 429 of the Act (Division G, Title IV) extends the right of certain tribal and non-tribal hospitals who see a low volume of Medicare patients to receive the low volume payment adjustments retroactively to 2011.
CONTINUING BILL LANGUAGE
Restriction of IHS Funds in Alaska to Regional Native Organizations Extended to October 1, 2019. The Consolidated Appropriations Act, 2014 (PL 113-76) extended to October 1, 2018, the provision that provides that IHS funds for Alaska be made available only to regional Alaska Native health organizations (with some exceptions). Section 428 of the Act (Division G, Title IV) extends that period to October 1, 2019. We repeat here the language from the FY 2014 Appropriations Act:
Alaska Native Regional Health Entities SEC 424. (a) Notwithstanding any other provision of law and until October 1, 2018, the Indian Health Service may not disburse funds for the provision of health care services pursuant to Public Law 93–638 (25 U.S.C. 450 et seq.) to any Alaska Native village or Alaska Native village corporation that is located within the area served by an Alaska Native regional health entity.
(b) Nothing in this section shall be construed to prohibit the disbursal of funds to any Alaska Native village or Alaska Native village corporation under any contract or compact entered into prior to May 1, 2006, or to prohibit the renewal of any such agreement.
(c) For the purpose of this section, Eastern Aleutian Tribes, Inc., the Council of Athabascan Tribal Governments, and the Native Village of Eyak shall be treated as Alaska Native regional health entities to which funds may be disbursed under this section.
The Act also continues language from previously enacted bills, including the following:
IDEA Data Collection Language. The Act continues the BIA authorization 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). The provision is:
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 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.
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 make new awards under the Loan Repayment and Scholarship programs.
Appropriations Structure. The Act continues language that has been in the bill for a number of years that the appropriations structure of the IHS may not be altered without advance notification to the House and Senate Committees on Appropriations. The Administration proposed to delete this provision in order “to maximize operational flexibility.”
Please let us know if we may provide additional information or assistance regarding FY 2018 Indian Health Service appropriations.