In this Memorandum we report on the House and Senate Appropriations Committees’ recommendations for the FY 2019 Indian Health Service (IHS) budget. The House bill and accompanying report are HR 6147, H. Rept. 115-765, while the Senate bill and report are
S 3073 and S. Rept. 115-276. Differences between the two proposals will be worked out in conference committee.
We reported on the Administration’s proposed FY 2019 IHS budget in our General Memorandum 18-015 of April 18, 2018.
IHS OVERALL FUNDING
FY 2018 Enacted $5,537,764,000
FY 2019 Admin. Request $5,424,023,000
FY 2019 House Committee $5,907,614,000
FY 2019 Senate Committee $5,772,116,000
Differences Attributed to SDPI and Staffing Considerations. In looking at the Administration’s proposed FY 2019 IHS budget keep in mind that it included $150 million in proposed discretionary IHS funding for the Special Diabetes Program for Indians. The Committees opposed the Administration’s position and maintained current law which funds SDPI on a mandatory basis whose funds are not part of the IHS appropriations bill. Tribes and tribal organizations also opposed changing SDPI’s funding from a mandatory to a discretionary basis.
The Administration’s proposed budget also included $159 million for staffing of new facilities but the estimate provided to the Committees has since been revised to $115 million (see below).
Staffing Packages for Newly Constructed Facilities. Both Committees recommend funding to meet the current estimated needed for staffing packages for newly constructed facilities – $115,233,000 in the Services and Facilities accounts combined ($103.9 million in Services; $11.3 million in Facilities). Funding is for facilities funded through the Construction Priority System or the Joint Venture Program that have opened in FY 2018 or will open in FY 2019 and which have achieved beneficial occupancy status. When the Administration proposed its FY 2019 budget the estimate for staffing of new facilities was $159 million.
Rejection of Proposed Deletions and Reductions of Programs. The Committees rejected the Administration’s proposed deletion of all funding for the Community Health Representatives, Health Education, and the Tribal Management programs. They also rejected the large budget cuts proposed by the Administration, maintaining FY 2018 enacted increases.
Current Services (fixed costs increases). The Administration requested
$46.7 million for pay raises and $47.9 million for medical inflation. The House Committee’s bill includes $46.7 million for “fixed-cost increases” – the same amount as requested for pay raises – spread throughout the accounts ($42.8 million Services; $3.9 million Facilities); the Senate Committee’s bill does not contain funding for this purpose.
Indian Health Care Improvement Fund. The House Committee’s bill would provide $125.6 million for the Fund, while the Senate Committee’s bill does not include funding for this purpose.
CONTRACT SUPPORT COSTS
FY 2018 Enacted Such sums as may be necessary
FY 2019 Admin. Request Such sums as may be necessary
FY 2019 House Committee Such sums as may be necessary
FY 2019 Senate Committee Such sums as may be necessary
Both bills, as requested, maintain Contract Support Costs (CSC) as a separate appropriation account with an indefinite amount—”such sums as may be necessary.” The FY 2019 estimate is $822,227,000.
Both bills reject the Administration’s proposal to reinstate two provisions from the FY 2016 Appropriations Act for IHS which are contrary to the Indian Self-Determination and Education Assistance Act (ISDEAA) with regard to CSC. The first is the “carryover” clause that could be read to deny the CSC carryover authority granted by the ISDEAA; the other is the “notwithstanding” clause used by IHS to deny contract support cost for their grant programs – Domestic Violence Prevention; Substance Abuse and Suicide Prevention; Zero Suicide Initiative; after-care pilot projects at Youth Regional Treatment Centers; funding for the improvement of third party collections; accreditation emergencies; and the housing subsidy authority for civilian employees. The Senate bill, in addition, includes opioid prevention and treatment recovery on the list.
Congress has not gone along with those two Administration proposals in the past. The FY 2018 House Report encourages IHS to provide CSC for its grant programs.
Continuation of Sections 405 and 406 of General Provisions. Both bills would continue by reference, as requested, sections 405 and 406 of the FY 2015 Appropriations Act. These provisions prohibit BIA and IHS from using FY 2019 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 2019.
Contract Support Costs, Fiscal Year 2019 Limitation
Sec. 406. Amounts provided by this Act for fiscal year 2019 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 2019 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 2018 Enacted $3,952,290,000
FY 2019 Admin. Request $3,945,975,000
FY 2019 House Committee $4,202,639,000
FY 2019 Senate Committee $4,072,385,000
HOSPITALS AND CLINICS
FY 2018 Enacted $2,045,128,000
FY 2019 Admin. Request $2,189,688,000
FY 2019 House Committee $2,170,257,000
FY 2019 Senate Committee $2,198,623,000
Tribal Clinic Leases. The House bill would provide $18 million while the Senate bill would provide $15 million in supplemental funding for tribal clinic leases – the FY 2018 enacted level was $11 million. The Senate Committee comments on the issue of funding the leases under section 105(l) of the ISDEAA (the litigation referred to below is the Maniilaq Association v. Burwell, 170F. Supp. 3d 243 (D.D.C. 2016):
Village Built Clinics.—The Committee has provided additional resources for village built clinics [VBCs] leasing costs. The Service testified before the Committee that these resources are now being used not only to pay for the traditional VBCs but also for new costs relating to litigation which requires that section 105(l) of the Indian Self-Determination Act mandates payment of leasing costs when Tribal facilities are used to operate IHS programs. The agency indicated that these costs may grow exponentially over time. While the Committee has not included proposed language in the budget request to overturn this decision it is concerned with the budgetary impacts of this case moving forward. Within 90 days of enactment of this act, the Service shall submit a report which indicates the current number of Tribes pursuing 105(l) leasing arrangements, where these Tribes are located by State, the associated costs, and proposals for addressing this issue in the budget beyond simply overturning a court decision. The Committee believes these costs should be included separately in the budget request from those funds needed for village built clinics. (S. Rept. p. 94)
Accreditation Emergencies. Both bills would provide $58 million for hospital accreditation emergencies, the same as the FY 2018 enacted level.
The House Report states:
Accreditation Emergencies.—The recommendation includes $58,000,000 as requested to assist IHS-operated facilities that have been terminated or received notice of termination from the Centers for Medicare & Medicaid Services (CMS) Medicare program. Funding shall be allocated to such facilities in amounts to: restore compliance; supplement purchased/referred care, including transportation, in the event of temporary closure of such facility or one or more of its departments; and compensate for third-party collection shortfalls resulting from being out of compliance. Primary consideration should be given to facilities that have been without certification the longest. Shortfalls shall be calculated relative to the average of the collections in each of the two fiscal years preceding the notice of termination. Funds allocated to a facility to address compliance issues shall be made available to Tribes newly assuming operation of such facilities pursuant to the Indian Self-Determination and Education Assistance Act of 1975 (P.L. 93-638). (H. Rept. pp 79-80)
The Senate Report expresses concern about the deficiencies identified by the Centers for Medicare and Medicaid Services at the Gallup Indian Medical Center and instructs IHS to take needed steps to come into compliance so that the facility does not lose its access to third party reimbursements and to address other deficiency issues.
New Tribes Funding. Both bills would provide $1.9 million, as requested, for the following newly-recognized or reinstated tribes: the Pamunkey Tribe of Virginia, the United Keetoowah Band of Cherokee Indians (Oklahoma) and the Paskenta Band of Nomlaki Indians (California) with the caveat in both Committee reports that they have recently been made aware of of the litigation between United Keetoowah Band and the Cherokee Nation. The Committees are taking a neutral stand on the litigation and report that they will “consult with all parties involved before taking final congressional action.”
Quality of Care. The Senate Committee states with regard to measurement of patient health:
The Committee finds that structural reforms are needed at the Indian Health Service, and directs IHS to work with the Committee to improve access to care and quality of services. The Committee also directs Indian Health Service to establish measurements for tracking the improvement of patient health, rather than defining increased funding alone as a metric for measuring improvements. (S. Rept. p. 93)
First Aid Kit Enhancements. The Senate Committee states with regard to first aid kit enhancements:
The Committee is aware that first aid products endorsed by the Department of Defense’s Committee on Tactical Combat Casualty Care [CoTCCC] help to reduce death or trauma as a result of bleeding. The Committee believe these products could help the agency save lives, especially in rural areas it might take significant time to transport a patient to a hospital and/or healthcare facility for appropriate treatment. Accordingly, the Committee encourages the Agency to analyze incorporating CoTCCC’s hemostatic dressing of choice in healthcare facilities and vehicles and provide a report to the Committee within 90 days of enactment. (S. Rept. p. 93)
FY 2018 Enacted $195,283,000
FY 2019 Admin. Request $203,783,000
FY 2019 House Committee $207,906,000
FY 2019 Senate Committee $203,872,000
Current Services/Staffing. The House Committee’s increase is for fixed costs, staffing of new facilities and an $800,000 transfer from the Direct Operations account to backfill vacant dental health position in Headquarters. The Senate Committee’s increase is for staffing of new facilities.
FY 2018 Enacted $ 99,900,000
FY 2019 Admin. Request $105,169,000
FY 2019 House Committee $106,752,000
FY 2019 Senate Committee $105,281,000
Current Services/Staffing. The House Committee increase is for staffing of new facilities and fixed costs; the Senate Committee increase is for staffing of new facilities.
ALCOHOL AND SUBSTANCE ABUSE
FY 2018 Enacted $227,788,000
FY 2019 Admin. Request $235,286,000
FY 2019 House Committee $238,560,000
FY 2019 Senate Committee $245,566,000
Current Services/Staffing. The House Committee’s increase is for the staffing of new facilities and built-in costs. The Senate Committee’s increase is for the staffing of new facilities and new funding of $10 million for opioid grants. Both Committee bills retain increases of FY 2018 of $6,500,000 for the Generation Indigenous initiative; $1,800,000 for the youth pilot project; and $2,000,000 to fund essential detoxification related services.
Opioid Grants. The Senate Committee’s bill includes $10 million for new opioid grants for a Special Behavioral Health Pilot Program aimed the opioid epidemic. The Senate Committee states:
Opioid Grants. —To better combat the opioid epidemic, the Committee has included an increase of $10,000,000 and instructs the Service, in coordination with the Assistant Secretary for Mental Health and Substance Abuse, to use the additional funds provided above the fiscal year 2018 level to create a Special Behavioral Health Pilot Program modeled after the Special Diabetes Program for Indians. This Special Behavioral Health Pilot Program for Indians should support the development, documentation, and sharing of more locally-designed and culturally appropriate prevention and treatment interventions for mental health and substance use disorders in Tribal and urban Indian communities. The Director of the Indian Health Service, in coordination with the Assistant Secretary for Mental Health and Substance Abuse, shall awards grants for providing services, provide technical assistance to grantees under this section collect, and evaluate performance of the program. (S. Rept. 92).
Development of Clinic Capacity Model. The Senate Committee provides the following continuing directions:
The Service shall continue its partnership with Na’Nizhoozhi Center in Gallup, N.M., and work with the Center and other Federal, State, local and Tribal partners to develop a sustainable model for clinical capacity, as provided by the statement to accompany Public Law 115–31.
Care and Treatment. The Senate Committee states:
The Committee is concerned that alcohol and opioid use disorders continue to be some of the most severe public health and safety problems facing American Indian and Alaska Native [AI/AN] individuals, families, and communities. To address this problem, the Committee directs IHS to increase its support for culturally competent preventive, educational, and treatment services programs and partner with academic institutions with established AI/AN training and health professions programs to research and promote culturally responsive Care. Additionally, the Committee encourages the IHS to employ the full spectrum of medication assisted treatments for alcohol and opioid use disorders, including non-narcotic treatment options that are less subject to diversion combined with counseling services. (S. Rept. p. 92).
Prescription Drug Monitoring. The Senate Committee states:
The Committee is concerned that IHS and tribally operated health facilities are not participating in State Prescription Drug Monitoring Programs and emergency department information exchanges. The Committee strongly encourages these facilities to participate in these programs. Accordingly, within 90 days of enactment of this act, the Service shall provide the Committee with a report outlining by State such facilities that are participating and those that are not, and any issues preventing facilities from uploading data to these programs or exchanges. (S. Rept. p. 93).
FY 2018 Enacted $962,695,000
FY 2019 Admin. Request $954,957,000
FY 2019 House Committee $964,819,000
FY 2019 Senate Committee $964,819,000
CHEF. Included in the total in both bills is $53 million for the Catastrophic Health Emergency Fund, the same as the FY 2018 enacted level.
INDIAN HEALTH CARE IMPROVEMENT FUND
The House Committee’s bill would provide $125,666,000 for the Indian Health Care Improvement Fund, which compares to a FY 2018 appropriation of $72,280,000. The Senate Committee’s bill does not include funding for this purpose. The House Report language notes the funds are provided “in order to reduce disparities across the IHS system.” The House 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 2018 Enacted $85,043,000
FY 2019 Admin. Request $87,023,000
FY 2019 House Committee $90,540,000
FY 2019 Senate Committee $89,159,000
Current Services/Staffing. The House and Senate Committees include staffing of new facilities costs and the House also includes built-in costs.
FY 2018 Enacted $19,871,000
FY 2019 Admin. Request -0-
FY 2019 House Committee $20,568,000
FY 2019 Senate Committee $20,568,000
The increase is for staffing of new facilities costs.
COMMUNITY HEALTH REPRESENTATIVES
FY 2018 Enacted $62,888,000
FY 2019 Admin. Request -0-
FY 2019 House Committee $62,888,000
FY 2019 Senate Committee $62,888,000
HEPATITIS B and HAEMOPHILUS
IMMUNIZATION (Hib) PROGRAMS IN ALASKA
FY 2018 Enacted $2,127,000
FY 2019 Admin. Request $2,035,000
FY 2019 House Committee $2,164,000
FY 2019 Senate Committee $2,127,000
URBAN INDIAN HEALTH
FY 2018 Enacted $49,315,000
FY 2019 Admin. Request $46,422,000
FY 2019 House Committee $60,000,000
FY 2019 Senate Committee $49,315,000
The House Committee states that “the Service is expected to include current services estimates for urban Indian health in annual budget requests.”
INDIAN HEALTH PROFESSIONS
FY 2018 Enacted $49,363,000
FY 2019 Admin. Request $43,394,000
FY 2019 House Committee $70,765,000
FY 2019 Senate Committee $49,558,000
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 House Committee’s bill would provide $55.7 million and the Senate Committee’s bill would provide $36 million (same as FY 2018 enacted) for the loan repayment program. The House bill would also provide an additional $1,650,000 for scholarships. The Senate increase would provide $195,000 to expand the Indians into Medicine Program to four sites.
FY 2018 Enacted $2,465,000
FY 2019 Admin. Request -0-
FY 2019 House Committee $2,465,000
FY 2019 Senate Committee $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 2018 Enacted $72,338,000
FY 2019 Admin. Request $73,431,000
FY 2019 House Committee $73,431,000
FY 2019 Senate Committee $73,338,000
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.
The House Committee increase is for built-in costs and in addition, $800,000 would be transferred to Dental Services to backfill dental vacancies in Headquarters.
FY 2018 Enacted $5,806,000
FY 2019 Admin. Request $4,787,000
FY 2019 House Committee $5,858,000
FY 2019 Senate Committee $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 2019 budget justification that in FY 2017, approximately
$2 billion was transferred to tribes to support 94 ISDEAA Title V compacts and 120 funding agreements.
Indian Health Care Improvement Act/Level of Need Funded. The House Committee again addresses the issue of underfunding of the Indian Health Care Improvement Act:
It has been over eight years since the permanent reauthorization of the Indian HealthCare Improvement Act (HCIA), 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 is aware of the work being done by the IHS in consultation with Tribes to re-evaluate the existing formula for calculating the level of need funded. The Service is expected to combine this calculation with other existing resource deficiency metrics to estimate a total amount necessary for fully funding existing health services, and report to the Committee no later than 180 days after enactment of this Act. (H. Rept. p. 80).
Maternal and Child Health Coordinator. The House Committee requests a report on the plan to hire a permanent Maternal and Child Health Coordinator:
The Committee is aware the Indian Health Service Chief Medical Officer (CMO) has established the hiring of a national maternal/child health coordinator as a top priority for the Office of Clinical and Preventive Services. In addition, the CMO has also appointed a Chief Clinical Consultant for Obstetrics and Gynecology for issues related to maternal health. Within 90 days of enactment of this Act, the Indian Health Service shall report on its progress to hire a permanent Maternal and Child Health Coordinator at Headquarters with experience working as a health care provider on maternal and child health issues. (H. Rept. p. 80).
FUNDING FOR INDIAN HEALTH FACILITIES
FY 2018 Enacted $867,504,000
FY 2019 Admin. Request $505,820,000
FY 2019 House Committee $882,748,000
FY 2009 Senate Committee $877,504,000
MAINTENANCE AND IMPROVEMENT
FY 2018 Enacted $167,527,000
FY 2019 Admin. Request $ 75,745,000
FY 2019 House Committee $167,527,000
FY 2019 Senate Committee $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.
FACILITIES AND ENVIRONMENTAL HEALTH SUPPORT
FY 2018 Enacted $240,758,000
FY 2019 Admin, Request $228,852,000
FY 2019 House Committee $256,002,000
FY 2019 Senate Committee $250,758,000
FY 2018 Enacted $23,706,000
FY 2019 Admin. Request $19,952,000
FY 2019 House Committee $23,706,000
FY 2019 Senate Committee $23,706,000
Both Committees’ bills would provide for $500,000 for the TRANSAM program and up to $2.7 million for the purchase of ambulances.
Construction of Sanitation Facilities
FY 2018 Enacted $192,033,000
FY 2019 Admin. Request $101,772,000
FY 2019 House Committee $192,033,000
FY 2019 Senate Committee $192,033,000
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 Department of Housing and Urban Development-built homes.
Construction of Health Care Facilities
FY 2018 Enacted $243,480,000
FY 2019 Admin. Request $ 79,500,000
FY 2019 House Committee $243,480,000
FY 2019 Senate Committee $243,480,000
Both Committees’ bills would provide $15 million for the Small Ambulatory Program, the same as the FY 2018 enacted level. The Senate Report also notes $6.5 million is for new and replacement quarters and $5 million “for healthcare facilities construction for the Service to enter into contracts with tribes or tribal organizations to carry out demonstration projects as authorized under the Indian Health Care Improvement Act.”
CONTINUING BILL LANGUAGE
The Committees would continue language from previously enacted bills, including the following:
Housing Allowances. Both bills provide that the IHS may provide to civilian medical personnel serving in IHS-operated hospitals housing allowances equivalent to those that would be provided to members of the Commissioned Corps of the Public Health Service serving in similar positions at such hospitals.
IDEA Data Collection Language. Continue 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. Continue the prohibition on the implementation of the eligibility regulations, published September 16, 1987.
Services for Non-Indians. Continue 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 HHS. Continue 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. Continue 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. Continue 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.
Please let us know if we may provide additional information or assistance regarding FY 2019 Indian Health Service appropriations.