New IHS director faced difficult year

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WASHINGTON – Soon after Robert McSwain was sworn in as director of IHS May 7, he was an optimistic man. In an Indian Country Today interview, he said that he was looking forward to working under the Bush administration, and then “getting our issues lined up and presenting a strong face to the new administration.”

But McSwain was also wary. He said that his main challenge focused on IHS’ “very limited budget outlook” due to the Bush administration’s vision about the deficit reduction budgets. “It’s a budget that is flat,” McSwain noted.

Given that reality, McSwain said he was concerned about the agency’s lacking health service for urban Indians. He also noted that there had been a pause in construction of new IHS facilities for about three years now at the time of the interview.

McSwain raised another challenge involving agency’s aim of working with tribes on their decisions to assume their own health programs with support from IHS.

The self-determination topic would haunt McSwain later in the year when some tribes raised questions about consultation meetings held by the agency that seemed to indicate tribes would be in danger of losing IHS funding if they did not cease charging eligible beneficiaries for any portion of health services or medicine they receive at IHS-funded facilities.

“Indian Health Service believes that tribes should not be doing it,” Ronald B. Demaray, acting director of the agency’s Office of Tribal Programs, told ICT in June. “It is inappropriate for tribes to be doing so.”

Indeed, since the inception of the Indian Self-Determination and Education Assistance Act of 1975, IHS has interpreted the law as meaning the tribes it works with are prohibited from collecting copays.

Some tribal leaders asked why IHS would raise 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. Some also argued that tribal sovereignty and legal precedents that challenged the agency’s interpretation of the law were being ignored.

By late-June, the issue was brought before a hearing of the U.S. Senate Indian Affairs Committee. McSwain labeled the copay issue an “elephant in the room” during his testimony. “[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,” he testified. “There’s no decision made at this point, accepting the fact that by law, the Indian Health Service cannot bill.”

McSwain’s leadership faced its biggest round of fire in late July at another SIAC hearing, in which several senators indicated that alleged management misdeeds at the IHS were enough to warrant firings at the agency.

The senators’ statements beliefs came as a result of a report, released in June by the U.S. Government Accountability Office, which identified more than 5,000 lost or stolen property items from 2004 to 2007 alone at just a smattering of randomly sampled IHS facilities. The items were estimated by the GAO to be worth almost $16 million. GAO attributed problems of loss, theft and waste at the agency to a “weak internal control environment.”

McSwain admitted to mistakes in management during his testimony, but also listed many excuses – among them, ongoing challenges in implementing new accountability systems. He also said that some of the GAO research was flawed and that “not all concerns cited by the GAO in [its] report are current or defensible.”

Sen. Byron Dorgan, D-N.D., reacted harshly to McSwain’s explanations. “Your testimony. ... seems all too defensive of the existing system,” the SIAC chairman said, adding that he felt the behavior by IHS employees who may have fabricated documents “borders on criminal.”

Dorgan and other senators noted to McSwain that it will be all the more difficult to persuade members of Congress that IHS needs more dollars when the agency cannot account for millions of dollars of lost and stolen property. Many of the angry senators had long been advocates of the agency’s need for more funding.

As the year rounded out, IHS entered an assessment stage to account for the senators’ concerns – and to make up for lost ground.