In this Memorandum we report on the House Appropriations Committee (Committee) recommendations for FY 2018 funding for the Indian Health Service (IHS). The Interior, Environment, and Related Agencies Subcommittee marked up the bill on July 12 followed by the full Committee on July 18. The report accompanying the bill, HR 3354, is House Rept. 115-238.
The House Committee has marked up all twelve FY 2018 spending bills even though Congress has not yet adopted a Budget Resolution which sets the spending caps for the fiscal year, and hence adjustments may need to be made later in the year. Subcommittee Chairman Calvert (R-CA) stated with regard to a Budget Resolution he hopes we can have a “broader deal” as we move forward and re-visit some of the issues in the bill.
IHS OVERALL FUNDING
FY 2017 Enacted $5,039,886,000
FY 2018 Admin. Request $4,739,291,000
FY 2018 House Committee $5,136,873,000
The Committee proposes to reject the reductions from FY 2017 proposed by the Trump Administration and also rejected some of their bill language as well. In addition, the Committee recommended $130 million for the Indian Health Care Improvement Fund. We reported on the Administration’s proposed FY 2018 IHS budget in our General Memorandum 17-031 (June 13, 2017) and on the FY 2017 enacted IHS budget in General Memorandum 17-030 (June 5, 2017).
The Administration’s proposed decreases for behavioral health initiatives, accreditation emergencies, prescription drug monitoring, detoxification, small ambulatory construction program, domestic violence, and clinic leases, and the Facilities account would be rejected.
Pay Costs Increases. The Committee recommends $36.7 million for pay costs in the Services Account which compares to a FY 2017 enacted amount of $13.2 million. For the Facilities Account, the Committee recommended $3.6 million for pay costs which compares to an FY 2017 enacted amount of $1.2 million.
Staffing Packages. The Committee recommends $20 million for staffing of two newly constructed Joint Venture projects – the Flandreau Health Center in Flandreau, SD and the Choctaw Nation Regional Medical Center in Durant, OK. Of that amount $17.9 million is in the Services account and $2 million is in the Facilities Account. This is the same as the Administration’s request.
Indian Health Care Improvement Act Funding.—The Committee repeated the language from FY 2017 regarding funding for Indian Health Care Improvement Act (IHCIA) authorizations. In the FY 2018 Budget Justification, IHS noted that 90 days is an insufficient time for such a report and also that the cost of it would be significant. The Committee 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 Committee also directs the IHS to report on population and service growth over the past 10 years and the funding sources used to address these needs:
The Committee 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 Committee is 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 to supplementary funding sources. As a point of comparison, and to the extent possible, the Service shall compare these impacts across the twelve IHS areas, with the degree to which patient populations services in the respective states has increased.
Appropriations Structure.—The Committee proposes to continue 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.”
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 Committee Such sums as may be necessary
The Committee recommendation, consistent with the Administration’s request for IHS and the Bureau of Indian Affairs (BIA), does not make any major changes in the structure or amount of CSC appropriations—although the estimated expenditures are lower than predicted in FY 2017. Funding for CSC in each agency remains a separate appropriation account with an indefinite amount—”such sums as may be necessary.”
The Committee estimation for CSC spending for IHS is $717,970,000, the same as in the Administration’s budget justification.
The Committee rejected the Administration’s proposal to reinstate two provisions of the FY 2016 Appropriations Act that tribes succeeded in having removed from the Consolidated Appropriations Act for FY 2017:
• Carryover clause: The Administration’s proposal was to reinstate in the FY 2018 bill the FY 2016 Appropriations act language that could be read to deny the carryover authority granted by the Indian Self-Determination and Education Assistance Act: “amounts obligated but not expended by a tribe or tribal organization for contract support costs for such agreements for the current fiscal year shall be applied to contract support costs otherwise due for such agreements for subsequent fiscal years.”
• “Notwithstanding” clause: The Administration’s proposal was to also include language that the agency has used as part of the justification to not pay CSC on Substance Abuse and Suicide Prevention (SASP), Domestic Violence Prevention Initiative (DVPI), programs to improve collections public and private insurance, and for accreditation emergencies. The language which the IHS says precludes CSC for these programs is the phrase “Notwithstanding any other law,” the funding for these programs “shall be allocated at the discretion of the Director.” Congress dropped the “notwithstanding” phrase in the Consolidated Appropriations, FY 2017 Act, which gave tribes a better argument for CSC on these funds.
The FY 2018 budget proposal would continue prior language in the General Provisions section:
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 Committee $3,867,260,000
HOSPITALS AND CLINICS
FY 2017 Enacted $1,935,178,000
FY 2018 Admin. Request $1,870,405,000
FY 2018 House Committee $1,966,714,000
Tribal Clinic Leases. The House Committee would provide $11 million for tribal clinic leases, the same as FY 2017 enacted. The Administration proposed only $2 million for this purpose. The House Committee also 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 House Committee proposes $29 million for hospital accreditation emergencies, the same as the FY 2017 level. The Administration proposed only
$2 million for this purpose. The Committee Report states:
Accreditation Emergencies.—The Committee considers 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 recommendation includes a total of $29,000,000 for accreditation emergencies at an alarming number of facilities over the past year. Funds may be used for personnel or other expenses essential for sustaining operations of an affected service unit, including but not to exceed $4,000,000 for Purchased/Referred Care. These are not intended to be recurring base funds. The Director should reallocate the funds annually as necessary to ensure that agreements with CMS are reinstated, and to restore third-party collection shortfalls. Shortfalls should be calculated relative to a baseline, which should be the average of the collections in each of the two fiscal years preceding the year in which an agreement with CMS was terminated or put on notice of termination.
The following Report language is related to the accreditation crisis and related reform:
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 Committee recommends $12.9 million for this program, equal to the FY 2017 enacted level.
Prescription Drug Monitoring. The Committee recommends $1 million to fund the creation of a multi-state prescription drug monitoring program authorized by Section 196 of the Indian Health Care Improvement Act.
FY 2017 Enacted $182,597,000
FY 2018 Admin. Request $179,751,000
FY 2018 House Committee $185,920,000
Of the total, $1.46 million is for staffing of Joint Venture facilities ($1.1 million for the Choctaw Regional Medical Center and $330,000 for the Flandreau Health Center). The 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.
FY 2017 Enacted $94,080,000
FY 2018 Admin. Request $82,654,000
FY 2018 House Committee $95,450,000
Of the total, $554,000 is for staffing of Joint Venture facilities ($460,000 for the Choctaw Regional Medical Center and $94,000 for the Flandreau Health Center). Included in this is funding for a Behavioral Health Integration Initiative and the Zero Suicide Initiative ($21.4 million and $3.6 million, respectively, in FY 2017).
ALCOHOL AND SUBSTANCE ABUSE
FY 2017 Enacted $218,353,000
FY 2018 Admin. Request $205,593,000
FY 2018 House Committee $220,280,000
Of the total, $288,000 is for staffing of Joint Venture facilities ($186,000 for the Choctaw Regional Medical Center and $102,000 for the Flandreau Health Center).
IHS states that the request includes $101.5 million for drug control activities which will maintain the program’s progress “in addressing the alcohol and substance abuse needs by improving access to behavioral health services through tele-behavioral health efforts and providing a comprehensive array of preventive, educational and treatment services.”
FY 2017 Enacted $928,830,000
FY 2018 Admin. Request $914,139,000
FY 2018 House Committee $928,830,000
Of the total, $53 million is for the Catastrophic Health Emergency Program. The House Committee expresses concern regarding distribution of funds and encourages, in certain circumstances, agreements with non-IHS federal facilities:
The recommendation includes $928,830,000 for Purchased/Referred Care (PRC), equal to the fiscal year 2017 enacted level. 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 Committee recommended $130 million for the Indian Health Care Improvement Fund. It is listed as its own line item under the Services account. Report language notes it is provided “in order to reduce disparities across the IHS system.” Bill language would provide 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 Committee $80,372,000
Of the total, $875,000 is for staffing of Joint Venture facilities ($601,000 for the Choctaw Regional Medical Center and $274,000 for the Flandreau Health Center).
FY 2017 Enacted $18,663,000
FY 2018 Admin. Request $18,313,000
FY 2018 House Committee $18,896,000
Of the total, $58,000 is for staffing for the Choctaw Regional Medical Center.
COMMUNITY HEALTH REPRESENTATIVES
FY 2017 Enacted $60,325,000
FY 2018 Admin. Request $58,906,000
FY 2018 House Committee $60,825,000
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 Committee $2,058,000
URBAN INDIAN HEALTH
FY 2017 Enacted $47,678,000
FY 2018 Admin. Request $44,741,000
FY 2018 House Committee $47,943,000
The Committee comments on the need for culturally appropriate services for Native veterans and also notes the provision in the FY 2018 House Veterans Administration appropriations bill requiring a report regarding the cost differential for VA to reimburse IHS for services rather than to provide services directly to urban Indian veterans:
The recommendation includes $47,943,000 for Urban Indian Health, $3,202,000 above the budget request. IHS is expected to continue to include current services estimates for Urban Indian Health in future budget requests. 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 Committee $49,943,000
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. Bill language includes $36 million for the loan repayment program and the House Report notes that the American Indians into Psychology Program is continued at not less than $715,077. The House Committee also comments regarding the loan repayment program:
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.
FY 2017 Enacted $2,465,000
FY 2018 Admin. Request -0-
FY2018 House Committee $,2465,000
The Tribal Management grant program, authorized in 1975 under the authority of the Indian Self-Determination and Education Assistance Act (ISDEAA), provides competitive grants 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 Committee $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 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 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 routinely include support for this program in their testimony on IHS funding. SDPI is currently funded through FY 2017 at $150 million annually, and the Administration supports $150 million for FY 2018. The program needs to be extended this year.
FUNDING FOR INDIAN HEALTH FACILITIES
FY 2017 Enacted $545,424,000
FY 2018 Admin. Request $446,956,000
FY 2018 House Committee $551,643,000
The Administration’s proposal for the Facilities Account was especially harsh, proposing a $100 million reduction. The House Committee would restore the funding and add an additional $6 million.
MAINTENANCE AND IMPROVEMENT
FY 2017 Enacted $75,745,000
FY 2018 Admin. Request $60,000,000
FY 2018 House Committee $77,502,000
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 2017 Enacted $226,950,000
FY 2018 Admin. Request $192,022,000
FY 2018 House Committee $231,412,000
Of the total, $2 million is for staffing of Joint Venture facilities ($1.56 million for the Choctaw Regional Medical Center and $466,000 for the Flandreau Health Center).
FY 2017 Enacted $22,966,000
FY 2018 Admin. Request $19,511,000
FY 2018 House Committee $22,966,000
The House bill language would provide up to $500,000 for TRANSAM equipment and up to $2.7 million for purchase of ambulances. The IHS Budget Justification stated that IHS expects to provide $450,000 to purchase TRANSAM equipment from the Department of Defense and no funding for the purchase of ambulances, but the House would restore those amounts.
Construction of Sanitation Facilities
FY 2017 Enacted $101,772,000
FY 2018 Admin. Request $ 75,423,000
FY 2018 House Committee $101,772,000
The House Committee proposed funding level would reject the cuts the Administration proposed for projects to serve new or like-new housing; existing homes, emergency projects, and studies and training related to sanitation facilities construction projects.
The IHS sanitation facilities construction 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 Committee $117,991,000
The House Report does not specify specific construction projects; while The IHS proposes construction funding for the following specific projects:
• $45 million to complete construction of the Rapid City Health Center, Rapid City, SD;
• $50 million to continue construction of the Dikon Alternative Rural Health Center, Dikon, AZ; and
• $5 million for design/build activities for the Alamo Health Center, Alamo, NM
Small Ambulatory Program/New and Replacement Quarters. The House Report notes that their recommended funding level would restore FY 2017 funding levels which would therefore make available $5 million for the Small Ambulatory Program and $8.5 million for new and replacement quarters.
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 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.
CONTINUING BILL LANGUAGE
The proposed bill continues language from previously enacted bills, including the following:
IDEA Data Collection Language. The proposed budget would 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. The proposed budget would continue the prohibition on the implementation of the eligibility regulations, published September 16, 1987.
Services for Non-Indians. The proposed budget would 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 DHHS. The proposed budget would 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. The proposed budget would 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. The proposed budget would 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 2018 Indian Health Service appropriations.