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IHS acknowledges tribal copay 'elephant in the room'

WASHINGTON - Top IHS officials have again stated opposition to the practice of tribes collecting copayments from eligible beneficiaries to help make up for dramatic shortfalls in federal funding needed to offer health care services.

The agency has been holding consultations at IHS area offices nationwide since April in an attempt to determine the number of tribes conducting the practice.

In a June interview with Indian Country Today, Ronald B. Demaray, acting director of the agency's Office of Tribal Programs, said that Robert McSwain, the newly confirmed director of IHS, had been contemplating terminating relationships with tribes found to be collecting copays.

Several tribal officials have expressed opposition to IHS' position, noting that issues of tribal sovereignty and legal precedent appear to be being ignored. IHS lost a case earlier this year brought on by the Susanville Rancheria of California, in which the tribe won the legal right to require patient copays from certain members for certain services. IHS chose not to appeal the case.

Since Demaray's statement, McSwain has stated publicly that the agency, under its interpretation of federal law, does not have the authority to partner with tribes that conduct the practice - but he has seemingly backed away from the idea of ceasing any IHS relationships with tribes already conducting the practice.

At a Senate Indian Affairs Committee oversight hearing on contract health services held June 26, McSwain labeled the copay issue an ''elephant in the room,'' noting ''there's a piece of press out there on me right now that says that I said I would terminate contracts with programs that were, in fact, billing.''

''[W]hat, in fact, we are doing is we're having a dialogue with [tribes] to see the extent and why are they doing it, so we can have a discussion about where do we go next,'' McSwain testified. ''There's no decision made at this point, accepting the fact that by law, the Indian Health Service cannot bill.

''Our position is as tribes take over the programs, they should do likewise, which is not to bill. I mean, that's our position until the law changes. We'll see the outcome. I just wanted to clarify. ...

''I fully appreciate tribes trying to make it work, trying to look at copays as an answer to addressing the health needs that they're trying to deal with, and we'll continue to work with them.''

Despite McSwain's testimony, some tribal and health officials believe Demaray would not have made a pronouncement about IHS considering stopping funds if that idea were not indeed on the table.

''I think clearly something is under foot with the agency making a decision on this issue. Otherwise, Mr. Demaray wouldn't have made the statement that he did [in the previous ICT interview],'' said Jim Roberts, a policy analyst with the Northwest Portland Area Indian Health Board. ''I think a decision has been made.''

He added: ''I don't think their position has changed, as Mr. McSwain indicated. His position is clearly that the agency is not going to approve a funding agreement with a tribe that exercises a copayment program.''

The NPAIHB previously sent a letter to IHS on behalf of 43 tribes, expressing concern that tribes were not explicitly told why the agency was holding the copay consultations.

Despite the questions McSwain's testimony has raised, IHS spokesman Thomas W. Sweeney said in an e-mail message, ''Mr. McSwain's statement stands as it is.'' Further requests for clarification were not addressed as of press time.

Before McSwain offered his comments, Susanville Rancheria Chairman Stacy Dixon testified before the Senate Indian Affairs Committee that he questions whether IHS officials truly believe in tribal rights to self-governance.

''Despite the Susanville decision - and the plain language of the [Indian Self-Determination and Education Assistance Act] on which the decision was based - the IHS has sought to prohibit tribes other than our tribe from charging eligible beneficiaries,'' Dixon said in a prepared testimony.

''The IHS did not appeal the Susanville decision, yet the agency insists the court was wrong and has not heeded its ruling. In a series of recent 'consultation' sessions with tribes in various regions, the IHS has stated that the Susanville decision is limited to one tribe, and does not constitute binding precedent.''

Roberts said he believes the agency was ''caught off-guard'' as a result of the issue coming up at the CHS hearing, which might partially explain the conflicting messages that have come from IHS officials. He also said he wouldn't be surprised if another legal battle resulted, centered on IHS actions to stop funding at another tribe, which could result in the future.

Beyond the copay issue, several invited tribal and health participants offered testimony highlighting the dire state of contract health service funding. All testifiers agreed that federal funding has been sorely lacking and, as a result, difficult health care decisions have had to be made by many tribes.

Brenda Shore, director of a health support program for the United South and Eastern Tribes, said in prepared testimony that the CHS program is ''woefully underfunded,'' noting that it is largely believed to be funded at less than 50 percent of the level of need.

Shore, holding back tears, also testified that as a result of underfunding, one of her own family members has not been able to get adequate health services for a long-ailing knee problem that has caused him to suffer from much chronic pain.

Sens. Byron Dorgan, D-S.D., and Lisa Murkowski, D-Alaska, chair and vice-chair, respectively, of the Senate Indian Affairs Committee, responded in part to the testimony by requesting that McSwain and other IHS officials work harder to get the word out on the financially pressed nature of so many tribal health programs.

''I will work ... with our tribal partners to put together the story,'' McSwain responded. ''I really believe that if we tell the story clearly, my bosses and my superiors [in the Bush administration] would agree and would [be supportive]. I think that the administration would like a clear, compelling story.''