Tribes: Sovereignty, legal precedent being ignored
WASHINGTON - Several tribes have learned in recent weeks that they could be in danger of losing IHS funding within the next few months if they do not cease charging eligible beneficiaries for any portion of health services or medicine they receive at IHS-funded facilities.
It's unknown exactly how many tribes currently charge copayments from people who visit their health clinics, but enough are apparently doing so, or considering doing so, to have raised the attention and ire of IHS. The federal agency has been holding consultations with tribes nationwide since April to try to get a handle on the number of tribes conducting the practice.
''Indian Health Service believes that tribes should not be doing it,'' said Ronald B. Demaray, acting director of the agency's Office of Tribal Programs. ''It is inappropriate for tribes to be doing so.''
Robert McSwain, the newly confirmed director of IHS, has stated that his agency does not have the authority to partner with tribes that conduct the practice; he is also contemplating terminating relationships with tribes that have been discovered to be doing so, according to Demaray.
Under rules governing IHS, tribes have long been prohibited from collecting fees from eligible beneficiaries for their health care services. Historically, IHS has never charged eligible beneficiaries for any health care services, whether or not they have monies available to pay to enhance the quality of their care. Agency officials believe it is a crucial part of the federal government's trust responsibility to fulfill the health care needs of American Indians without requiring additional copays directly from Indian clients.
Since the inception of the Indian Self-Determination and Education Assistance Act of 1975, many tribes have been able to take over IHS programs to address the health care needs of their members. In fiscal year 2008, tribes are estimated to control roughly $1.8 billion, or approximately 54 percent, of the total IHS budget.
The act contains a specific provision that prohibits IHS from charging eligible beneficiaries, and that provision has long been interpreted as meaning the tribes it works with are also prohibited from collecting such payments as well.
In recent years, however, some tribal officials have tried to skirt the provision, noting that the IHS has been dramatically underfunded by Congress and the White House for years - and that reality, in turn, has limited their ability to provide quality health care.
Some tribal leaders are asking why IHS is now raising issues about tribally requested copays when most agency leaders themselves readily agree that IHS is dramatically underfunded and cannot fully assist in providing the best healthcare services to many tribal members.
Under the tenets of tribal sovereignty, some tribes also increasingly feel that they should be able to develop their own health contract rules, even if they receive IHS monies, so as to offer the best care they can to their members.
Such contracts reviewed by Indian Country Today suggest that tribes requesting copays are not doing so to make a quick buck - elders, younger people and the poorest tribal members are usually not required to make payments under such contracts, according to documentation from tribal health officials.
IHS leaders are especially concerned about copay situations due to recent circumstances involving the Susanville Rancheria of California. That tribe earlier this year won the legal right to require patient copays from certain members for certain services.
For more than 15 years, the tribe has been operating a small health program under a contract with IHS. As a result of a transition to a self-governance compact a couple of years back, the tribe was asked by IHS whether it charges beneficiary copays or pharmaceutical costs, which it had done for some time.
The tribe had never been allotted any IHS money to provide members with pharmaceutical supplies, and it had been cobbling together tribal resources for years to try to account for its increasing health costs. Officials there eventually determined that a lack of IHS and tribal money would require them to ask for patient copays if they were to continue offering quality health services.
IHS, citing its rules, declined to offer the tribe a compact in early 2007. As a result, the tribe ended up getting a temporary restraining order from federal district court that directed IHS to go forward with the partnership. In January, a final order vindicating the tribe's practices was issued by the court. The judge in the case found that while IHS is bound by Congress from requesting copays, tribes are not explicitly prohibited. The copay decision, in effect, was left for the tribe to make.
Demaray said that IHS, while not happy with the decision, decided not to pursue an appeal.
Agency officials instead decided to go with the position that the decision applies only to the Eastern District of California and the Susanville Rancheria. IHS does not view the decision as a nationwide precedent to allow tribes with IHS contracts to collect copays.
Knowing that some tribes have been following the case, IHS decided early this year to begin its current round of consultations, getting tribes up to speed on the agency's interpretation of the law.
In each of IHS' 12 area offices, agency officials have been busily explaining to tribal officials that treaty rights calling for federal trust responsibility are upended when copays are required of tribal members. Tribal officials have also been told that tribes that require copays could end up seeing a large number of their clients choose to go to other IHS clinics that don't require copays, and thus risk losing already-limited funds.
But one of the most important issues at hand, according to Demaray, is the fact that Congress could view widespread tribal copay collection as a big reason to further limit the agency's budget.
''We see this as kind of a slippery slope,'' Demaray said. Some Congress members, he noted, would like to see Indians paying for all of their health care needs out of their own pockets, despite treaty rights and federal trust responsibility.
The Senate's passed version of the Indian Health Care Improvement Act already contains language that would make tribal beneficiary copays lawful nationwide. IHS is opposed to the provision.
Some tribal health officials noted that tribes that don't require copays might be happy to go along with IHS' position since, if monies were limited to other tribes, more funds would theoretically be available to tribes that have followed the rules.
Demaray said the consultations have not been intended to be ''heavy-handed,'' and they will likely be completed in June. He added that a tribe wanting to add copay language to its IHS health service contract would usually receive a decision within 90 days from IHS as to whether it would be rejected. Thus, some tribal leaders believe it will be 90 days from the end of the current consultation process that tribes now requesting copays could be asked to terminate their relationships with IHS.