Indian Health Service: Health Care Delivery, Status, Funding, and Legislative Issues
Indian Health Service: Health Care Delivery,
Status, Funding, and Legislative Issues
Updated June 11, 2008
Specialist in American Indian Policy
Domestic Social Policy Division
Indian Health Service: Health Care Delivery,
Status, Funding, and Legislative Issues
The Indian Health Service (IHS), an agency in the Department of Health and
Human Services (HHS), provides health care for eligible American Indians/Alaskan
Natives through a system of programs and facilities located on or near Indian
reservations and in certain urban areas. The IHS health delivery program is
organized into 12 regional area offices and 163 local service units, and serves federal
reservations, Indian communities, and urban Indians. In general, persons eligible for
IHS services must be in IHS service areas and belong to federally recognized tribes.
The IHS-served population generally has a higher incidence of illness and
premature mortality than the U.S. population as a whole. Several IHS publications
compare the health conditions and causes of death of the IHS service population with
those for the entire U.S. population. According to the latest of these, the average life
expectancy at birth for the IHS service area population in 1999-2001 was 74.5 years,
or 2.4 years less than the 76.9 years for the total U.S. population.
IHS appropriations are separated into two budget categories: health services and
health facilities. For FY2008, the total appropriation for IHS was $3.35 billion, of
which $2.97 billion (89%) was for health services and $374.6 million (11%) was for
health facilities. Other sources of IHS funding include a special diabetes program
and reimbursements from Medicare, Medicaid, and private insurance. Total IHS
“program-level” funding, including all sources, was $4.28 billion in FY2008. Indian
health advocates argue that IHS funding falls short of the need.
Although a number of legislative issues concerning IHS face the 110th Congress,
the primary focus has been on the reauthorization of the Indian Health Care
Improvement Act (IHCIA). Thus far two bills (S. 1200 and H.R. 1328) have been
introduced in the 110th Congress to reauthorize the IHCIA. Both reauthorization bills
would expand health services, ease processes for reimbursements from Medicaid and
other federal programs, coordinate behavioral health programs, and authorize other
actions. S. 1200 was reported, amended, by the Senate Indian Affairs Committee on
October 17, 2007 (S.Rept. 110-197). The Senate Finance Committee on September
12, 2007, ordered reported an original bill covering S. 1200’s Title II, which amends
the Social Security Act; the bill was introduced January 8, 2008, as S. 2532 and was
reported the same day (S.Rept. 110-255). S. 1200 was passed, amended, by the
Senate February 28, 2008, and sent to the House. H.R. 1328 was reported, amended,
by the House Natural Resources Committee on April 4, 2008 (H.Rept. 110-564, part
1). Separately H.R. 1328 was forwarded, amended, by the House Energy and
Commerce Committee’s Health Subcommittee to the full Committee on November
7, 2007. H.R. 1328 was discharged by the Energy and Commerce and Ways and
Means Committees on June 6, 2008, and the bill reported in April was placed on the
calendar. Concerns continue about many issues in the IHCIA bills, including
provisions on Medicaid and others listed in a January 2008 Statement of
Administration Policy on S. 1200, which threatened a veto of that bill. This report
will be updated.
In troduction ......................................................1
Health Care Delivery...............................................2
Organization of the IHS Health Delivery System.....................2
Range of Health Care Services...............................3
Contract Health Services (CHS)..............................4
Urban Indian Health Projects.................................5
Other Health-Related Activities...............................5
Limitations in Health Services....................................6
Appropriations and Funding........................................12
IHS Funding Allocations and Disparities......................16
Statutory Authority and Committee Jurisdiction.........................21
Snyder Act of 1921.......................................21
Transfer Act of 1954......................................21
Indian Sanitation Facilities Act of 1959.......................21
Indian Self-Determination and Education Assistance Act
(ISDEAA) of 1975....................................21
Indian Health Care Improvement Act (IHCIA) of 1976...........22
Congressional Committee Jurisdiction............................23
Current Legislative Issues..........................................24
Reauthorization of the Indian Health Care Improvement Act...........24
Indian Health Professional and Human Resources...............27
Health and Sanitation Facilities..............................30
Access to Federal Health Services and Reimbursements..........32
Urban Indian Health Services...............................37
IHS Organizational Changes................................38
Behavioral Health Programs................................38
Amendments to the Social Security Act...........................44
Increasing Indian Enrollment in Medicaid and SCHIP............47
Documentation of U.S. Citizenship for Medicaid................48
Exemptions from Medicaid Cost-Sharing Charges and Payments...49
Exclusion of Property from Medicaid and SCHIP
Exemption of Entities from State or Local Licensing.............51
Required Medicaid Consultations............................51
Safe Harbors from Criminal Prohibition of Remunerations........51
Indians and Medicaid and SCHIP Managed Care Organizations....52
Annual Report on Indian SSA Health Program Beneficiaries.......53
Other Legislative Issues........................................54
Contract Support Costs....................................54
Substance Abuse and Mental Health Program Consolidation.......55
Appendix A. Brief History of Federal Indian Health Services..............57
List of Figures
Figure 1. Counties Served by IHS-Funded Programs: IHS Service Areas
and Urban Indian Health Projects.................................3
Figure 2. IHS Funding: Total Program Funding and Budget Authority,
in Current and Constant 1994 Dollars, FY1994-FY2009R.............13
List of Tables
Table 1. Number of Facilities Operated by IHS and Tribes.................4
Table 2. Differing Indian Population Figures, Selected Years, 1990-2006.....9
Table 3. Mortality Rates for Indians in IHS Service Areas and for
U.S. Population (All Races), Total and for Selected Causes, 2001-2003..11
Table 4. Indian Health Service Funding, FY2000-FY2009R...............19
Indian Health Service:
Health Care Delivery, Status,
Funding, and Legislative Issues
The Indian Health Service (IHS), part of the Public Health Service (PHS) of the
Department of Health and Human Services (HHS), funds health services to about 1.8
million Indians, members of the nation’s 562 federally recognized American Indian23
and Alaska Native (AI/AN) tribes in IHS service delivery areas. Health services are
available to eligible residents of reservations, of non-reservation areas of those
counties that overlap or abut reservations, and of some urban areas with a significant
AI/AN population. Eligible Indians receive free IHS health services regardless of
their ability to pay (except in certain urban programs, or when a tribe chooses to
charge for services).4 The federal government considers its provision of these health
services to be based on its trust responsibility for Indian tribes, a responsibility
derived from federal statutes, treaties, court decisions, executive actions, and the5
Constitution (which assigns authority over Indian relations to Congress). Congress,
however, has only a moral obligation, not a legal one, to provide Indian health care.6
The Supreme Court has rejected the idea (absent congressional statement to the
1 Donna U. Vogt, retired CRS Specialist in Social Legislation, coauthored previous versions
of this report.
2 In this report, the terms “AI/AN” and “Indian” will be used interchangeably. They both
mean American Indians and Alaska Natives (“Alaska Natives” includes the American
Indians, Eskimos (Inuit and Yupik), and Aleuts of Alaska).
3 Certain other AI/AN including urban Indians may be eligible for health services. (See later
discussion on eligibility.)
4 The IHS is forbidden to charge Indians (see 25 U.S.C. 1681 and 25 USC 458aaa-14) but
a recent federal district court decision allows tribes providing certain IHS-funded services
to bill Indians (Susanville Indian Rancheria v. Leavitt et al., 2008 U.S. Dist. LEXIS 365).
See the discussion under “Charges for Health Care Services,” below.
5 “The Congress hereby declares that it is the policy of the Nation, in fulfillment of its
special responsibilities and legal obligations to the American Indian people, to meet the
national goal of providing the highest possible health status to Indians and to provide
existing Indian health services with all resources necessary to effect that policy” (§3, P.L.
6 See Felix S. Cohen, Felix S. Cohen’s Handbook of Federal Indian Law (1982 edition),
Rennard Strickland, editor-in-chief (Charlottesville, VA: Michie Bobbs-Merrill, 1982), p.
677; and Felix S. Cohen, Cohen’s Handbook of Federal Indian Law (2005 edition), Nell
Jessup Newton, editor-in-chief (Newark, NJ: LexisNexis [Matthew Bender & Company],
contrary) that IHS is under an obligation to provide any specific health program to
This report provides an overview of the Indian Health Service and how it
provides for the health care problems and needs of AI/AN. It also shows IHS
appropriations for recent years and discusses its current statutory authorities and
legislative issues, including the reauthorization of appropriations in the Indian Health
Care Improvement Act (IHCIA) and several other policy issues.
Health Care Delivery
The federal government’s delivery of health services to Indians, and funding of
tribal and urban Indian health programs, has developed over more than a century.
(Appendix A provides a brief history of the Indian Health Service.)
Organization of the IHS Health Delivery System
Currently, the IHS health care delivery system, a largely rural system, is
organized into regional area offices and, within each region, local service units.
There are 12 regional area offices and 163 local service units. The IHS system serves
federal reservations, Indian communities in Oklahoma and California, and Indian,
Eskimo (Inuit and Yupik), and Aleut communities in Alaska. Service units, as
geographic entities, may be made up of both whole counties and parts of counties.8
All counties in the national IHS service area are covered by one or more service
units.9 The map in Figure 1 shows the counties served by IHS-funded programs,
including both IHS service areas and IHS-funded urban projects. As a whole, the
IHS national service area roughly matches the distribution of federal Indian
reservations and communities, although in five states (Alaska, Arizona, Nevada,
Oklahoma, and South Carolina) every county is served by the IHS.
7 See Lincoln v. Vigil, 508 U.S. 182, 194-195 (1993). This sentence was prepared by Nathan
Brooks, Congressional Research Service Legislative Attorney, 2005.
8 IHS service units are administrative entities within a defined geographical area through
which services are directly or indirectly provided to eligible Indians. A service unit may
cover a number of small reservations, or, conversely, some large reservations may be
covered by several service units.
9 As discussed below, the overall national area of contract health service delivery areas is
identical to that of IHS service areas.
Figure 1. Counties Served by IHS-Funded Programs: IHS Service Areas
and Urban Indian Health Projects
IHS service Areas with NO Urban Indian Health ProjectsIHS service areas with Urban Indian Health Projects
Urban Indian Health Projects NOT in IHS service areas
Source: Information provided by United States Geological Survey, National Atlas, and Indian Health
Service. Map prepared by Library of Congress, Geography and Map Division, November 2001.
Range of Health Care Services. The IHS provides an array of medical
services, including inpatient, ambulatory, emergency, dental, and preventive health
care. Besides providing general clinical health services, the IHS also focuses on such
special Indian health problems as maternal and child health, fetal alcohol syndrome,
diabetes, hepatitis B, alcoholism, and mental health. The IHS provides these services
directly, and through tribes, tribal organizations, and urban Indian organizations. In
addition, both the IHS and tribes may contract for health services from private
Health Administration. As noted, IHS-funded health care is provided in
facilities administered through regional offices and service units. Service units and
facilities (but not regional offices) may be managed either by the IHS or by Indian
tribes and tribal organizations and consortia. Through self-determination contracts
and self-governance compacts negotiated with the IHS under the authority of the10
Indian Self-Determination and Education Assistance Act (ISDEAA), tribes and
tribal organizations have taken over from IHS the responsibility for operating many
service units and health facilities. (The ISDEAA is discussed at greater length below,
under “Statutory Authority.”) Currently, 106 of the 163 service units (65%) are
operated by tribes under ISDEAA, as are 565 of the 679 IHS-funded health facilities
10 P.L. 93-638, act of January 4, 1975, 88 Stat. 2203, as amended; 25 U.S.C. 450 et seq.
(83%) (see Table 1). Neither IHS nor tribes may bill Indians for health services
provided under the ISDEAA.11
Table 1. Number of Facilities Operated by IHS and Tribes
(as of October 1, 2006)
Type of FacilityTotalIHSOperatedTotalISDEAAISDEAA
Hospitals 46 31 15 15 0
Alaska village166 01661579
Source: U.S. Department of Health and Human Services, Indian Health Service, Justification of
Estimates for Appropriations Committees, Fiscal Year 2009, Feb. 2008, pp. CJ-218. Health facilities
totals calculated by Congressional Research Service.
Notes: ISDEAA = Indian Self-Determination and Education Assistance Act (P.L. 93-638), as
a. Used in Alaska to fund Alaska Native-operated clinics not eligible for funding under ISDEAA.
Sometimes these funding sources are called “non-638 contracts.”
Contract Health Services (CHS). In addition to care received from IHS
and tribal providers, health services are purchased by IHS and the tribes through
contracts with more than 2,000 private providers, if the local facility is unable to
provide the needed care.12 Not all areas of the country are covered by this service.
Areas where this IHS-funded contract health care is available are known as “contract
health service delivery areas” (CHSDAs), and are the same as the IHS service areas
shown in Figure 1. CHS providers may not bill Indians for CHS services authorized
by the IHS.13
11 25 U.S.C. 458aaa-14(c).
12 Contract health services are provided by non-IHS facilities or providers principally for
members of tribes who live in contract health service delivery areas. 42 C.F.R. §136.23.
13 25 U.S.C. 1621u.
Urban Indian Health Projects. Although most IHS facilities are located
on or near reservations, IHS also funds, with approximately 1% of its budget, 3414
urban Indian health projects (UIHPs), with operations at 41 locations. UIHPs are
funded by IHS with grants and contracts. In 2000 UIHPs served an estimated15
669,970 urban Indians living in IHS’s urban service areas. UIHPs also receive
funding from other sources, including state, private, and non-IHS federal programs,
and from patient fees.16 Figure 1 illustrates areas served by urban Indian health
projects. Some urban projects are inside CHSDAs and some are not.
Other Health-Related Activities. The IHS funds the construction,
equipping, and maintenance of hospitals, health centers, clinics, and other health care
delivery facilities, both those operated by the IHS and those operated by tribes.
Tribes may handle these activities under self-determination contracts or self-
Sanitation. Since 1960 the IHS has also funded the construction of water
supply and sewage facilities and solid waste disposal systems and has provided
technical assistance for the operation and maintenance of such facilities, under the
authority of the Indian Sanitation Facilities Act.17 Currently, according to the IHS,
about 12% of AI/AN homes lack safe drinking water supplies and adequate waste
disposal facilities, compared to about 1% of all U.S. homes.18 Because of improved
access to sanitation facilities, there has been about an 80% reduction in
gastrointestinal disease among AI/AN since 1973, according to the IHS.19
14 Funding for UIHPs is authorized under Title V of the Indian Health Care Improvement
Act (25 U.S.C. 1651-1660d), which directs the HHS Secretary to make grants to or contracts
with UIHPs under the authority of the Snyder Act (25 U.S.C. 13). Such grants or contracts
are not ISDEAA self-determination grants or contracts. See also Forquera, Urban Indian
Health, pp. 12-13.
15 U.S. Department of Health and Human Services, Indian Health Service, Trends in Indian
Health, 2000-2001 (Washington: GPO, 2004), p. 39.
16 IHS, Office of Urban Indian Health Programs, Urban Indian Health Program Statistics,
FY2005 ([Rockville, MD]: IHS, October 16, 2007), p. 4. Under Title V of the Indian Health
Care Improvement Act, UIHPs are not prohibited from charging their patients (IHS, personal
communication, November 20, 2007).
17 P.L. 86-121, act of July 31, 1959, 73 Stat. 267; 42 U.S.C. 2004a.
18 U.S. Indian Health Service, “Health and Heritage Brochure: Safe Water and Waste
Disposal Facilities,” available at [http://info.ihs.gov/Infrastructure/2_SafeWaterAnd
Waste-Jan2005.doc], last accessed February 20, 2006.
19 U.S. Department of Health and Human Services, Indian Health Service, Justification of
Estimates for Appropriations Committees, Fiscal Year 2007, pp. IHF-9 - IHF-10.
Limitations in Health Services
The IHS does not provide the same health care services in each area it serves.
Services vary from place to place and from time to time.20 In general, the services
provided to any particular Indian community will depend on financial resources (i.e.,
appropriations and third party reimbursements) and available personnel and
facilities.21 IHS has stated that its funding does not allow it to provide all the needed
care for eligible Indians.22 As a result, according to Indian health organizations, some
services are “rationed,” with the most critical care given first.23 IHS regulations
require that, when resources or funds are insufficient, the agency must set priorities
for both direct and contract health care based on “relative medical need.”24 In
addition, the drugs and medicines available from IHS pharmacies may not include
all drugs and medicines needed, although IHS says its pharmacies will stock most
drugs that have proven to be cost-effective and beneficial.25
IHS shortfalls in medical personnel contribute to this unevenness in health care
delivery. Where a health professional position is vacant, either the health care may
not be available or the facility will have to use CHS funds, which according to IHS
raises the costs of the care. In January 2008, the IHS had job vacancy rates of 31%
for dentists, 18% for nurses, 17% for physicians, 13% for optometrists, and 11% for
20 See U.S. Government Accountability Office, Indian Health Service: Health Care Services
Are Not Always Available to Native Americans, GAO-05-789, August 2005; and U.S.
Department of Human Health and Services, Indian Health Service, Office of Public Health,
Level of Need Funded Study, LNF Workgroup Report II, December 1999, p. 2; available at
[ h t t p : / / www.i h s . go v/ NonM e d i c a l Pr ogr a ms / Lnf / c ont P2Sum.ht m] .
21 42 C.F.R. §136.11(c).
22 U.S. Indian Health Service, News Release, Indian Health Service Receives 5% Funding
Increase for FY2002, December 17, 2001; available at [http://www.ihs.gov/PublicInfo/
23 “Tribes forced to ration funds for health services,” Indianz.com, February 2, 2007,
available at [http://www.indianz.com/News/2007/000701.asp]. See also U.S. Congress,
Senate Committee on Indian Affairs, Partnership for a New Millennium: Addressing thethnd
Unmet Health Care Needs in Indian Country, hearings, 105 Cong., 2 sess., May 21, 1998
(Washington: GPO, 1998), pp. 15, 297.
24 42 C.F.R. §§136.11(c), 136.23(e).
25 See [http://www.ihs.gov/GeneralWeb/HelpCenter/CustomerServices/approp.asp].
26 Randy Grinnell, Deputy Director, Management Operations, Indian Health Service, “Indian
Health — Challenges and Changes,” presentation at National Combined Councils Meeting,
February 4, 2008 (February 15, 2008), pp. 12-13; available at
last accessed April 1, 2008; and testimony of Robert G. McSwain, Acting Director, IHS,
before the House Interior, Environment, and Related Agencies Appropriations
Subcommittee, April 2, 2008.
In general, persons eligible for IHS services are members of federally
recognized tribes. They must also live on or near federal Indian reservations or in
traditional Indian communities, or within a county where IHS contract health services
are available. Eligible Indians include those of Indian descent belonging to the
Indian community who are regarded as Indian by the community in which they live.
Eligibility also is indicated by: (1) location within an IHS health service delivery
area; (2) residence on tax-exempt land or ownership of property on land for which
the federal government has a trust responsibility; (3) active participation in tribal
affairs; or (4) meeting other relevant factors in keeping with general Bureau of Indian
Affairs (BIA) practices in the jurisdiction for determining eligibility.27 Urban Indian
health programs funded by IHS may serve a wider range of eligible persons,
including members of terminated28 or state-recognized tribes and their children and
In addition, eligible persons may also include a non-Indian woman pregnant
with an eligible Indian’s child. She would be eligible for care during the pregnancy
and six weeks following birth, as long as paternity is acknowledged. The IHS also
serves non-Indians in specific circumstances particularly when an acute infectious
disease is involved.30
Most IHS services are intended for members of federally recognized tribes.
Since federal law does not restrict state recognition of tribes, some states grant
recognition to Indian groups that are not recognized by the federal government.
Members of such state-recognized tribes are ineligible for most IHS health services,
but are eligible for services at IHS-funded urban Indian health projects.
For the most part, tribal membership is determined by the tribe. Many tribes
require recognized descent from a particular tribal roll for membership. In tracing
descent, tribes follow paternal or maternal bloodlines, or both. Some tribes require
minimum percentages of genealogical descent, and others require only proof of
descent. For a few tribes, Congress has set membership criteria in statute.31
The IHS service population (as calculated by IHS) is not evenly distributed
throughout Indian country. In 2003, approximately 35% of the population served by
IHS resided in two IHS regions: 14.4% lived in the Navajo region (northwestern New
Mexico, southeastern Utah, and northeastern Arizona, excluding the Hopi
27 42 C.F.R. §136.12(a).
28 “Terminated” tribes are tribes whose federal recognition was withdrawn by statute.
29 25 U.S.C. 1603(f), 1651-1660d.
30 25 U.S.C. 1680c: Health Services for Ineligible Persons.
31 For instance, the act recognizing the Pascua Yaqui Tribe of Arizona set certain
membership criteria (see §3, P.L. 95-375, act of September 18, 1978, 92 Stat. 712; 25 U.S.C.
1300f-2), and an earlier act specified membership criteria for the Confederated Tribes and
Bands of the Yakama Nation of Washington (§1, act of August 9, 1946, Chap. 933, 60 Stat.
Reservation), and 20.7% lived in the Oklahoma region (Kansas, Oklahoma, and part
Population Data. Determining the actual number of people eligible for IHS
services is problematic. There is no U.S. census of members of federally recognized
tribes (or, for that matter, of members of terminated and state-recognized tribes who
might be eligible for UIHP services). IHS makes annual estimates of its eligible
“service population” based on decennial census data, adjusted for birth and death
rates and for the areas IHS serves (see Figure 1).33 The census, however, asks
respondents only to identify themselves by race,34 not by confirmed membership in
a federally recognized tribe.35 Hence IHS service population data are based on self-
identification as AI/AN by race, not on tribal membership. Not all persons self-
identifying as AI/AN are members of federally recognized tribes, so not all AI/AN
counted by the census are eligible for IHS services. The IHS also estimates its “user
population,” based on registered AI/AN patients who used IHS-funded services at
least once in the most recent three years,36 but this figure does not include all eligible
AI/AN. The BIA publishes biennial estimates of its own service population, based
on estimates received from BIA agencies and federally recognized tribes, but these
estimates are not based on actual censuses and cover only persons on or near
reservations.37 The BIA also lists tribes’ reports of their enrollment totals, but the
BIA conducts no census to confirm these figures, and its publication does not show
whether the enrollees enumerated live on or near reservations or inside or outside
IHS service areas. Table 2 compares recent IHS, BIA, and census population
Determining the urban Indian population eligible for UIHP services is equally
inexact. As noted above, UIHPs serve a wider range of eligible persons, including
members of terminated or state-recognized tribes and their children and
grandchildren. They are not, however, authorized to serve anyone who merely38
identifies themselves as racially Indian. BIA figures for service population and
tribal enrollment do not help determine the urban UIHP population, because, in
addition to the problems already mentioned, the BIA data are not broken down by
urban or metropolitan residence, nor do they cover terminated or state-recognized
32 IHS, Trends in Indian Health, 2000-2001, p. 33. Percentages calculated by CRS.
33 Ibid., pp. 32-33.
34 In the 2000 decennial census, respondents were for the first time permitted to identify
themselves by more than one race.
35 The census allows respondents to identify their tribe, but this is still self-identification.
The census does not confirm a respondent’s enrollment (or eligibility) in a federally
36 U.S. Department of Health and Human Services, Indian Health Service, Office of Public
Health, Division of Community and Environmental Health, Program Statistics Team,
Regional Differences in Indian Health, 1998-99 [Rockville, MD: IHS, (2000)], p. 11.
37 U.S. Department of the Interior, Bureau of Indian Affairs, Office of Tribal Services,
Indian Labor Force Report, 1999 (Washington: BIA, n.d.), pp. I-iii.
38 See 25 U.S.C. 1603(f), 1651 et seq.
tribes. Nor is an answer provided by Census Bureau data on Indians, since, although
the data are broken down by urban, metropolitan, city, and other types of residence,
they are still, as noted above, based on self-identification by race, not on tribal
membership, whether in federal, state, or terminated tribes. IHS figures for urban
Indian populations are based on these Census data.
While IHS, Census, and BIA figures for Indians, whether resident in urban areas
or not, may not be definitive for the IHS-eligible population, they provide useful
approximations of the population that IHS serves. Census data suggest that most
AI/AN live outside reservations and other census-identified Indian areas, that the
movement out of these areas is many decades old, and that a majority of census-
identified Indians live in census-identified urban areas.39 Many urban areas are
within CHSDAs, however, so further analysis may be needed to determine what
proportion of census-identified urban Indians are eligible for general IHS services.
Table 2. Differing Indian Population Figures,
Selected Years, 1990-2006
Indian Health ServiceBureau of Indian AffairsCensus Bureau
PopulationPopulationPopulationEnrollmentAI/ANAlone or in
Year(in IHS(at IHS(on or near(national;race aloneCombination
19901,207,2361,104,693 — — Decennial:1,959,234 —
19911,242,7451,134,6551,001,606 — — —
19971,427,4531,300,6341,442,7471,654,433 — —
19991,489,341 — 1,397,9311,698,483 — —
20001,515,594 — — — 2,475,9564,119,301Estimates:
2001 1,542,450 1,345,242 1,524,025 1,816,504 Estimates:2,712,506 4,281,458
20061,829,7921,461,639 — — Estimates:2,902,8514,497,895
IHS service population, 1990-2003: IHS, Trends in Indian Health, 1998-2003, various pages.
IHS service population, 2004: IHS, personal communication, Feb. 22, 2006. IHS user population,
1990-2001: IHS, Regional Differences in Indian Health, 1992-2001, various pages. IHS user
population, 2003: IHS, IHS Budget Breakout — Medical & Non-Medical [for 2003]. IHS user
population, 2006: IHS, personal communication, Oct. 22, 2007. All IHS publications are authored
by U.S. Department of Health and Human Services, Public Health Service, Indian Health Service,
Office of Planning, Evaluation, and Legislation, Division of Program Statistics, and published in
39 Forquera, Urban Indian Health, p. 1; and Appendix 1; and Marlita A. Reddy, ed.,
Statistical Record of Native North Americans (Detroit: Gale Research, 1993), p. 420.
BIA service population, 1991: Indian Service Population and Labor Force Estimates (1991),
Table 1 (recalculated by CRS). BIA service population and tribal enrollment, 1997: Indian Labor
Force Report: Portrait 1997, “National Totals” table. BIA service population and tribal enrollment,
1999: Indian Labor Force Report, 1999, “National Totals” table. BIA service population and tribal
enrollment, 2001: Indian Labor Force Report, 2001, “National Totals” table. BIA service population
and tribal enrollment, 2003: Indian Labor Force Report, 2003, “National Totals” table. All BIA
publications are authored by U.S. Department of the Interior, Bureau of Indian Affairs, and published
in Washington, D.C.
Census Bureau: 1990-2000 (April 1): U.S. Bureau of the Census, American Factfinder website
[http://factfinder.census.gov/home/saff/main.html?_lang=en]; 2001-2006 (July 1): Population
IHS comparisons of mortality measures indicate that the IHS service population
has historically had a greater incidence of illness and higher mortality rates than the
general U.S. population. The disparities in mortality rates have diminished in recent
years in such areas as infant and maternal mortality, and mortality associated with
homicide, suicide, injuries, firearms, tuberculosis, pneumonia, and other conditions.40
In comparison with the general population, however, Indians are 6.5 times more
likely to die from alcoholism, 6 times more likely to die from tuberculosis, almost
three times more likely to die from diabetes, and 2.5 times more likely to die in
accidents (see Table 3). Indians are less likely to die from some other major causes
of death, such as heart disease (0.97 chance) and cancers (0.94 chance). In terms of
life expectancy, IHS has found that “American Indians and Alaska Natives born
today have a life expectancy that is 2.4 years less than the U.S. all races population
(74.5 years to 76.9 years, respectively; 1999-2001 rates).”41 Studies suggest the
higher mortality rates for a number of leading causes of death among AI/AN are
related to alcohol abuse, including not only alcohol-related deaths but also accidents,42
suicide, and homicide.
Diabetes.43 Indians suffer from a disproportionately high and growing rate of
Type 2 diabetes, with its prevalence increasing 41% between 1997 and 2003 in all
service areas, particularly among young adults (persons aged 25-34). Between 1990
and 2003, for instance, the incidence of diabetes among these young AI/AN adults
40 IHS, Trends in Indian Health, 2000-2001, pp. 162-163.
41 U.S. Indian Health Service, Facts on Indian Health Disparities, IHS Fact Sheet, January
2007, available at [http://info.ihs.gov/Files/DisparitiesFacts -Jan2007.doc], last accessed
November 17, 2007.
42 Philip A. May, “Overview of Alcohol Abuse Epidemiology for American Indian
Populations,” in Gary D. Sandefur et al., eds., Changing Numbers, Changing Needs:
American Indian Demography and Public Health (Washington: National Academy Press,
43 Diabetes is a disease in which the body either does not produce the hormone insulin (Type
I) or does not produce enough insulin or does not properly use insulin (Type 2). Insulin
converts sugar, starches, and other foods into energy. About 90-95% of diabetics have Type
grew 135%.44 Diabetes mortality is 3.1 times higher in the AI/AN than in the general
U.S. population.45 Diabetes is a major cause of AI/AN morbidity, leading to
blindness, kidney failure, lower-extremity amputation, and cardiovascular disease.46
Table 3. Mortality Rates for Indians in IHS Service Areas
and for U.S. Population (All Races),
Total and for Selected Causes, 2001-2003
(Age-adjusted rates per 100,000 population unless otherwise noted)
IHS ServiceU.S. AllRatio of
Cause of DeathPopulation (Average,Races IHS Rate to
Alcoho l-related 43.6 6 .7 6.51
Diabetes 75.2 25.4 2 .96
Accidents (unintentional injury, 93.836.92.54
including motor vehicle)
Motor vehicle accident126.96.36.199
Ho micide 12.7 6 .1 2.08
Suicid e 17.1 10.9 1 .57
Pneumonia and influenza33.322.61.47
Cerebrovascular diseases (affecting blood54.756.20.97
supply to the brain)
Cancers (malignant neoplasms)181.8193.50.94
Cervical cancer (females)188.8.131.52
Breast cancer (females)15.425.60.60
HIV (human immunodeficiency virus)184.108.40.206
Maternal mortality (per 100,000 live births)220.127.116.11
Infant mortality (per 1,000 live births)9.87.01.40
Sources: U.S. Indian Health Service, Facts on Indian Health Disparities, IHS Fact Sheet, January 2007, table
entitled “Mortality Disparity Rates,” at [http://info.ihs.gov/Files/DisparitiesFacts -Jan2007.doc]; and U.S. Indian
Health Service, Division of Program Statistics, spreadsheet transmitted October 19, 2007.
Note: Mortality rates are age-adjusted to the national 2000 standard population. IHS service population’s
mortality rates are computed by applying the age-specific death rate for a given cause of death using the AI/AN
population residing in counties that make up the IHS service area. The rates were also adjusted for the miscoding
of Indian race on death certificates. Previously the national and AI/AN mortality rates were age-adjusted to the
national 1940 standard population. Ratios were calculated by CRS.
44 U.S. Department of Health and Human Services, Indian Health Service, Justification of
Estimates for Appropriations Committees, Fiscal Year 2007, p. IHS-71.
45 Ibid., p. 71.
46 U.S. Commission on Civil Rights, Broken Promises: Evaluating the Native American
Health Care System (Washington: The Commission, September 2004), p. 10 n.20; available
With the 1997 Balanced Budget Act, Congress began a Special Diabetes
Program for Indians (SDPI) as part of IHS’s ongoing National Diabetes Program.
With SDPI grant monies, the IHS, tribal health programs, and UIHPs have set up
diabetes programs to create an extensive support network that gives training, “best
practices,” and the latest scientific findings with area diabetes consultants, model
diabetes programs and other grant programs in 318 AI/AN communities in 35
states.47 The funding has enhanced patient care and education and created a needed
infrastructure for diabetes programs. With SDPI funding, IHS, Urban Indian
Organizations (UIOs), and tribes are able to support prevention programs which have
been shown to delay the onset of the disease through lifestyle changes or use of
medication.48 The program’s disease performance measures have tracked the success
of the SDPI efforts to fight diabetes. So far the program’s efforts have seen an
increase in the percentage of Indian diabetics maintaining blood sugar control from
25% in FY1997 to 34% in FY2004. In addition, there are other decreases in the
number of health incidents related to diabetes including kidney disease and
retinopathy. Other programs are tying diabetes screening with other diseases. For
example, on May 16, 2005, the National Institutes of Health announced the beginning
of an educational campaign to promote the message that AI/AN can reduce the risk
of a heart attack or stroke if they keep under control their blood glucose, blood
pressure, and cholesterol.49
Appropriations and Funding
IHS funding is separated into four budget categories: health services, facilities,
collections (reimbursements from Medicare and Medicaid, as well as private
insurance), and SDPI. Health services and facilities appropriations constitute IHS’s
budget authority; its budget authority plus collections and SDPI constitute IHS’s
program-level funding. Table 4 below shows detailed funding for IHS programs for
FY2000-FY2008, with the request for FY2009.50 Figure 2 shows the trends in IHS
budget authority and program-level funding for FY1994-FY2008, in current dollars
and constant 1994 dollars.51
47 U.S. Indian Health Service, National Diabetes Program, Interim Report to Congress:
Special Diabetes Program for Indians, December 2004, p. 161.
48 Diabetes Prevention Program Research Group, “Reduction in the Incidence of Type 2
Diabetes with Lifestyle Intervention or Metformin,” The New England Journal of Medicine,
vol. 346, no. 6, February 7, 2003, pp. 393-403.
49 U.S. Department of Health and Human Services, National Institute of Diabetes and
Digestive and Kidney Diseases, National Institutes of Health, “National Diabetes Education
Program Tailors Cardiovascular Disease Message for American Indians and Alaska
Natives,” NIH News, May 16, 2005.
50 For information on IHS FY2009 appropriations, see CRS Report RL34461, Interior,
Environment, and Related Agencies: FY2009 Appropriations, by Carol Hardy Vincent and
51 Current dollars were deflated to constant dollars using the Consumer Price Index for All
Urban Consumers (CPI-U) for All Items. Different price indexes are used to deflate medical
Figure 2. IHS Funding: Total Program Funding and Budget Authority,
in Current and Constant 1994 Dollars,
Tot al Tot alPr ogr am Budget BudgetAut hor i t y
$0.5Program(Curr $)(Const '94Authority(Curr $)(Const '94
94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09R
Sources: Table 4. Constant dollar figures calculated by the Congressional Research Service using
Consumer Price Index data provided in U.S. President, The Economic Report of the President, 2008
(Feb. 2008), Table B-60, and U.S. Congressional Budget Office, The Budget and Economic Outlook:
Fiscal Years 2008 to 2018 (Jan. 2008), Table 2.1.
Note: R = Request.
Collections. Indians are U.S. citizens, and hence many are eligible for
Medicare and Medicaid. Congress has authorized IHS and tribes operating IHS-
funded health facilities to collect reimbursements from Medicare and Medicaid, as
well as from non-federal sources (see “Statutory Authority,” below). Collections
funding has grown from 9% of the IHS program-level budget in FY1995 to 18% in
FY2007. Because many Indians on or near reservations lack employment-related
health insurance benefits, IHS collections come mostly from the Medicaid and
Medicare programs, of which Medicaid provides the majority. Medicaid payments
grew from 55% of collections in FY1995 to 71% in FY2003 (falling slightly to 69%
cost increases. IHS often uses the CPI-U for Medical Care. For this report, CRS considered
the CPI-U for All Items the most applicable price index.
in FY2007). “Overall,” said IHS in 2005, “Medicaid and Medicare collections
represent up to 50% of the hospital and clinic operating budgets.”52 (The Medicaid
program as a whole is funded by both state and federal governments, but states
receive 100% federal reimbursement for Medicaid services provided to eligible
Indians through facilities owned or operated by IHS or by tribes.53)
Diabetes Funding. In the Balanced Budget Act of 1997 (P.L. 105-33),
Congress amended the Public Health Service Act54 to create the IHS’s Special
Diabetes Program for Indians (SDPI). To fund SDPI, the act reduced the State
Children’s Health Insurance Program (SCHIP) appropriation for FY1998 through55
FY2002 by $30 million each year and transferred the funds to SDPI. In 2000, the
Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act (part of
P.L. 106-554) increased annual SDPI funding to $100 million for FY2001-FY2003.
Under the 2000 act, for FY2001-FY2002, $30 million of the $100 million for SDPI
came from the SCHIP appropriation and $70 million came from the general Treasury,
while for FY2003 the whole $100 million was drawn from the general Treasury.56
This funding from the general Treasury is separate from regular IHS appropriations
(as noted in Table 4). In 2002, Congress increased the annual funding for SDPI to
$150 million and extended the appropriation to FY2004-FY2008.57 Last year
Congress extended the appropriation to FY2009.58 Legislation in the 110th Congress
(H.R. 2762 and S. 1494) would increase the annual SDPI appropriation to $200
million and extend the appropriation to FY2013.
Funding Disparities. Groups supporting Indian health care have argued that
IHS per capita expenditures on health services are often less than per capita
expenditures in other federal health-related programs. The private nonprofit National
Indian Health Board, for example, pointed out that, in FY1997, IHS’s per capita
expenditures were $1,430 as compared with $3,489 per capita under the federal
Bureau of Prisons (BOP) and $5,458 under the Department of Veterans Affairs59
(VA). Three years later, however, in FY2000, IHS per capita spending had risen
52 U.S. Indian Health Service, “FY2006 Indian Health Service Budget Hearing: Questions
for the Record: Additional Committee Questions,” in U.S. Congress, House Committee on
Appropriations, Interior, Environment, and Related Agencies Appropriations for 2006,thst
hearings, Part 6, 109 Cong., 1 sess. (Washington: GPO, 2005), p. 270.
53 See 42 U.S.C. 1396d(b), third sentence.
54 P.L. 78-410, act of July 1, 1944, 58 Stat. 682, as amended; 42 U.S.C. 201 et seq.
55 P.L. 105-33, §4922, act of August 5, 1997, 111 Stat. 251, 574; 42 U.S.C. 254c-3, as
amended. Sec. 4921 of P.L. 105-33 created a similar special program for research on type
I diabetes in the National Institutes of Health (NIH).
56 P.L. 106-554, §1(a)(6), enacting H.R. 5661 [App. F; §931(b)], act of December 21, 2000,
57 P.L. 107-360, act of December 17, 2002, 116 Stat. 3019.
58 P.L. 110-173, §302(b), act of December 29, 2007, 121 Stat. 2492, 2515.
59 “Statement of Buford Rolin, Chairman, National Indian Health Board,” in U.S. Congress,
Senate Committee on Indian Affairs, Partnership for a New Millennium (1998), op. cit., pp.
9% to $1,577,60 while BOP’s had fallen 19% to $2,84061 and VA’s had fallen 7% to
$5,063.62 By FY2006, IHS per capita expenditures had risen 5% to $1,66463 while
VA’s had risen 13% to $5,799.64 Comparisons of per capita spending under different
federal health programs are problematic, however, because — as with BOP and VA
— the programs may serve different populations, with differing demographic
characteristics and health needs, and may provide different sets of health care
A multi-part study initiated in 1998 showed the disparities that exist in personal
medical services between IHS and mainstream health care systems. Initially called
the “Level of Need Funded” (LNF) study, and retitled the “FEHP Disparity Index”
(FDI) study, the study was produced by a tribal-IHS workgroup of 16 people (15
tribal representatives and one IHS official) charged with the responsibility by IHS,
and assisted by experts and consultants.65 The workgroup chose the Federal
Employees Health Benefits Plan (FEHBP) as the benchmark mainstream personal
medical services plan against which to compare IHS health services.66
The latest FDI study available on the IHS website found that in FY2004, the
total cost to give each AI/AN in the IHS user population coverage comparable with
that received by federal employees under the FEHBP would be $3,753 per AI/AN.
Of this amount, $2,815 would be from IHS appropriations and the rest from
279-280, 293. The IHS per capita figure is based on direct appropriations (including
construction but excluding reimbursements) divided by the IHS service population. See also
Jo Ann Kauffman, Reauthorization of the Indian Health Care Improvement Act:
Background and Issues (Henry J. Kaiser Family Foundation. October 1999),available at
[http://www. kf f . o r g/ mi n o r i t yh e a lth/loader.cfm?url=/commonspot/security/getfile.cfm&P
60 Calculated by CRS, in current dollars, using the same method as the National Indian
Health Board cited above. Appropriations figure is from Table 4; population data are from
61 Annual medical costs per inmate, as calculated by BOP. U.S. Federal Bureau of Prisons,
“1990-2000 Medical Per Capita Costs,” unpublished table transmitted to CRS February
62 VA medical care obligations per unique patient, in current dollars; per-capita calculated
by CRS. U.S. Department of Veterans Affairs, FY2002 Budget Submission. Medical
Programs, vol. 2 of 6. Office of the Assistant Secretary for Financial Management, pp.
63 Calculated by CRS using same method and sources as for FY2000.
64 VA medical care obligations per unique patient, in current dollars. U.S. Department of
Veterans Affairs, FY2008 Budget Submission. Medical Programs, vol. 4 of 4. Office of the
Assistant Secretary for Financial Management, pp. 1-46.
65 See the latest FDI report on the IHS website at [http://www.ihs.gov/NonMedicalPrograms
/Lnf/index.cfm]. Earlier reports are available at [http://www.ihs.gov/NonMedicalPrograms
66 The Federal Employees Health Benefits Plan is the program under which all non-military
federal employees obtain federal health coverage.
reimbursement programs such as Medicare, Medicaid, private insurance, and other
payments. FEHBP-level coverage for the 1.44 million IHS user population,
according to the FDI study, would call for IHS appropriations of about $3.97 billion
in FY2004 for personal medical services. The study found that actual FY2004 IHS
appropriations for personal medical services would provide 56.8% of the
appropriations needed to give IHS users personal medical services equivalent to the
FEHBP, and that an additional $1.7 billion would be needed to raise the level of IHS
personal medical services to 100% of the FEHBP’s.67
IHS Funding Allocations and Disparities. Most IHS funding for health
services is not allocated based on formulas but rather on historical patterns of
recurring base funding as adjusted by annual built-in increases to maintain programs
at current levels of service. Each year IHS area and service units receive their
previous year’s base funding, with built-in adjustments (if appropriated) allocated by
a fixed percentage increase that is the same across IHS. If Congress makes
appropriations above the adjusted base to increase particular services or meet unmet
needs, IHS allocates such increases using formulas, which have been developed in
consultation with tribes.68 Some IHS programs or parts of programs are allocated
solely by formulas, such as routine maintenance of facilities, some SDPI grants, some
sanitation facilities funds, the Indian Health Care Improvement Fund (discussed
below), and others. If Congress appropriates funds for specific facilities, the funds
are usually added into, and become part of, the base funding for the relevant service
unit and area.
Basing IHS allocations on historical patterns of base funding means the
allocations do not fully take into account changes in population, health needs, and
health services. One result has been that different IHS areas and service units receive
widely varying levels of funding, as measured by per-capita funding.69 FDI studies
found significant funding variations within the IHS — estimating, for instance, that
in FY2004 161 (61%) of the 266 operating units were funded at or below 60% of
FEHBP-equivalent services, while 49 (18%) operating units were funded at over 80%
IHS’s internal funding disparities have long been known. They were the subject
of a 1980 court case involving inequitably low funding allocations to the California
67 IHS, “FY2004 FDI Summary Results,” available at [http://www.ihs.gov/NonMedical
Programs/Lnf/2005/2004%20FDI%20SUmmary.pdf], last accessed October 27, 2007.
68 U.S. Department of Health and Human Services, Public Health Service, Indian Health
Service, Budget Execution Policy (Allocation of Resources), Indian Health Service Circular
No. 92-5, effective June 19, 1992, available at [http://www.ihs.gov/publicinfo/publications/
ihsmanual/Circulars/Circ92/Circ92_05/circ92_05.htm], last accessed October 28, 2007.
69 U.S. General Accounting Office, Indian Health Service: Funding Based on Historical
Patterns, Not Need, GAO/HRD-91-5, February 1991, p. 1.
70 IHS, “FY2004 FDI Summary Results,” available at [http://www.ihs.gov/NonMedical
Programs/Lnf/2005/2004%20FDI%20SUmmary.pdf], last accessed October 27, 2007; and
IHS Congressional and Legislative Affairs Office, personal communication, October 29,
area,71 which were studied by GAO in 1982 and 199172 and were studied by the
Office of Technology Assessment (OTA) in its 1986 report on Indian health care.73
The IHS and Congress have made several attempts to deal with the problem,
usually by appropriating additional “equity” funds for allocation according to needs-
based formulas, with the additional funds becoming part of the recipients’ recurring
base funding.74 The appropriations for such equity funds, however, were too low —
2% of total IHS funding between 1980 and 1990, GAO found — to make a
significant change in area-by-area allocation disparities.75 Major methodology
problems also became apparent, including how to measure health status and health
care needs, determine the services provided, and define the IHS-eligible population
whose needs must be met. Congress established a permanent equity fund in 1988,
the Indian Health Care Improvement Fund (IHCIF),76 to provide additional funding
to operating units that are most in need. (The FDI is the most recent methodology
developed to allocate these funds.) But when IHS had attempted in 1987 to apply
needs-based allocation formulas to part of areas’ base funding, some tribes and IHS
areas had lost funding and objected strongly.77 So Congress in 1988 also added a
partial “hold harmless” provision, prohibiting any allocation of IHS funding that
reduced any service unit’s recurring programs by 5% or more from the previous fiscal
year, unless HHS had reported to the President and Congress on the proposed change
and its likely effects.78
Although urban Indian health programs are not usually included in discussions
of IHS area funding disparities, FDI methodology has been applied to urban Indian
health needs. According to the IHS, FDI calculations for FY2000 suggested that the
urban Indian health program provided 4% of the FEHBP-equivalent funding
71 Rincon Band of Mission Indians v. Harris, 618 F.2d 569 (9th Cir. 1980).
72 U.S. General Accounting Office, Indian Health Service Not Yet Distributing Funds
Equitably Among Tribes, GAO/HRD-82-54, July 2, 1982; and GAO, Indian Health Service:
Funding Based on Historical Patterns, Not Need, op. cit.
73 U.S. Congress, Office of Technology Assessment, Indian Health Care, OTA-H-290
(Washington: GPO, 1986), pp. 27-30, 229-238, 345-349.
74 OTA, Indian Health Care, p. 28.
75 GAO, Indian Health Service: Funding Based on Historical Patterns, Not Need, p. 4; OTA
Indian Health Care, p. 238.
76 Indian Health Care Amendments of 1988, P.L. 100-713, §201(a), act of November 23,
77 GAO, Indian Health Service: Funding Based on Historical Patterns, Not Need, pp. 1, 5.
78 Indian Health Care Amendments of 1988, P.L. 100-713, §711, act of November 23, 1988,
79 U.S. Indian Health Service, “House Interior Appropriations, Committee Questions for the
Record,” in U.S. Congress, House Committee on Appropriations, Department of the Interiorthnd
and Related Agencies Appropriations for 2001, hearings, part 8, 106 Cong., 2 sess.
(Washington: GPO, 2000), pp. 364-365.
The IHS has previously identified funding shortfalls in other service areas. For
instance, facilities maintenance was funded at 27.5% of need for FY2004;
replacement of biomedical equipment was funded at about 20% of need in FY2004;
sanitation facilities for new homes is funded at 70%, and for existing homes at 5%,
of need in FY2005; and health professions scholarships are projected to be funded
at 10% of new applications in FY2005.80
80 U.S. Indian Health Service, personal communications, June 30 and July 1, 2005.
Table 4. Indian Health Service Funding, FY2000-FY2009R
(in millions of dollars)
F Y 2000 F Y 2001 F Y 2002 F Y 2003 F Y 2004 F Y 2005 F Y 2006 F Y 2007 F Y 2008 F Y 2009R
dget Authority (total)2,390.72,628.82,758.12,849.72,921.72,985.13,045.33,180.13,346.23,324.9
Health Services (subtotal):2,074.22,265.72,388.62,475.92,530.42,596.52,692.12,818.92,971.52,971.5
Hospitals and Health Clinics 1,005.41,084.21,153.21,212.01,249.81,289.41,339.51,411.31,484.01,521.9
Ind. Hlth. Care Improvmt. Fd.10.030.023.026.2011.300$13.824.0
leakAlcohol and Substance Abuse96.8130.3135.0136.8138.3139.1143.2148.2173.2162.0
://wikiContract Health Services406.8445.8460.8475.0479.1498.1517.3543.1579.3588.2
Public Health Nursing34.536.137.839.642.645.049.052.455.958.3
Community Health Reps46.448.149.850.451.051.452.954.954.955.8
Urban Indian Health27.829.830.931.331.631.832.733.734.50
Indian Health Professions30.530.518.104.22.1680.431.031.436.321.9
F Y 2000 F Y 2001 F Y 2002 F Y 2003 F Y 2004 F Y 2005 F Y 2006 F Y 2007 F Y 2008 F Y 2009R
Contract Support Costs228.8248.2268.2269.0267.4263.7264.7269.7267.4271.6
Maintenance and Improvement43.446.346.349.548.949.251.654.752.952.9
Health Care Facilities Construction50.485.586.381.694.688.637.825.736.615.8
iki/CRS-RL33022Facilities & Envtl. Health Support116.3121.3126.8132.3137.8141.7150.7165.3169.6169.1
g/wEquipment 14.3 16.3 16.3 17.2 17.1 17.3 20.9 21.6 21.3 21.3
://wikiMedicare 109.1 114.7 109.4 119.2 129.4 136.5 142.0 161.0 162.1 162.1
httpMedicaid 283.3 316.1 375.3 417.7 446.0 472.5 464.4 515.8 527.5 527.5
iabetes Program for Indians30.0100.0100.0100.0150.0150.0150.0150.0150.0150.0
rogram level (grand total)2,857.73,208.23,392.93,541.43,706.13,812.73,883.04,103.34,282.24,260.9
: U.S. Department of Health and Human Services, Indian Health Service, Justification of Estimates for Appropriations Committees, Fiscal Year 2009 (Feb. 2008, pp. CJ-3),
ious years’ IHS budget justifications; CRS Report RL32893 and CRS Report RL34011 on Interior, Environment, and Related Agencies Appropriations (except collections
); and collections and IHCIF data (FY2000-FY2006) from IHS Congressional and Legislative Affairs Office, Oct. 22 and 29, 2007.
Appropriations are after supplemental appropriations and rescissions. R = Request.
Statutory Authority and Committee Jurisdiction
Over the last eight decades, Congress has enacted a number of statutes providing
general or specific authorizations for health services to AI/ANs. Before that,
Congress directed the BIA to provide Indian health care and construct Indian health
facilities through annual Indian appropriations acts.
Currently, the IHS administers funds and policies under several statutes.
Snyder Act of 1921.81 This act provides a broad and permanent authorization
for federal Indian programs, including for “conservation of health.” In 1921 all such
programs were under the management of the BIA. The act was passed because
Congress had never enacted any specific statutory authorizations for most of the
many BIA activities that had developed after the Civil War as more and more tribes
were placed on reservations. Instead, Congress had made detailed annual
appropriations for these BIA activities. Authority for Indian appropriations in the
House had been assigned to the Indian Affairs Committee after 1885 (and in the
Senate to its Indian Affairs Committee after 1899). Rules changes in the House in
1920, however, moved Indian appropriations authority to the Appropriations
Committee, making Indian appropriations vulnerable to procedural objections
because they lacked authorizing acts. The Snyder Act was passed in order to
authorize all the activities the BIA was then carrying out. The act’s broad language,
however, may be read as authorizing — though not requiring — nearly any Indian
program, including health care, for which Congress enacts appropriations.
Transfer Act of 1954.82 The act transferred the responsibility for Indian
health care from the BIA to the PHS in the newly established Department of Health,
Education and Welfare (now HHS). Among other reasons, Congress felt the PHS
could do a better job of providing health care services to Indians.
Indian Sanitation Facilities Act of 1959.83 This act, amending the
Transfer Act, authorizes the PHS to construct sanitation facilities for Indian
communities and homes.
Indian Self-Determination and Education Assistance Act (ISDEAA)
of 1975.84 ISDEAA, as amended, provides for tribal administration of federal Indian
programs, especially BIA and IHS programs. The act allows tribes to assume some
control over the management of their health care services by negotiating “self-
determination contracts” with IHS for tribal management of specific IHS programs.
Under a self-determination contract, IHS transfers to tribal control the funds it would
81 Act of November 2, 1921, 42 Stat. 208, as amended; 25 U.S.C. 13.
82 P.L. 83-568, act of August 5, 1954, 68 Stat. 674, as amended; 42 U.S.C. 2001 et seq.
83 P.L. 86-121, act of July 31, 1959, 73 Stat. 267; 42 U.S.C. 2004a.
84 P.L. 93-638, act of January 4, 1975, 88 Stat. 2203, as amended; 25 U.S.C. 450 et seq.
have spent for the contracted program so the tribe might operate the program. Under
ISDEAA authority, IHS has also established a tribal consultation policy giving tribes
an opportunity to help formulate health priorities in the President’s annual budget
Tribal Self-Governance Program. Beginning in 1992, Congress amended
ISDEAA to allow tribal governments to consolidate IHS self-determination contracts
for multiple IHS programs into a single “self-governance compact.” Under a self-
governance compact, the same transfer of IHS funds and operating control takes
place as happens with a self-determination contract, but the compacting tribe is
authorized to redesign programs and services and to reallocate funds for those
programs and services. BIA programs had been authorized for compacting under a85
demonstration program in 1988, and similar authority was extended to IHS
programs in 1992.86 In 2000, the Tribal Self-Governance Amendments87 made the
IHS self-governance program permanent, as Title V of ISDEAA.
Indian Health Care Improvement Act (IHCIA) of 1976.88 IHCIA
authorizes many specific IHS activities, sets out the national policy for health
services administered to Indians, and sets health condition goals for the IHS service
population in order to “assure the highest possible health status for Indians and urban
Indians.”89 Most significantly, IHCIA authorizes direct collections from Medicare,
Medicaid, and other third party insurers. It also gives IHS authority to grant funding
to urban Indian organizations to provide health care services to urban Indians and
established substance abuse treatment programs, Indian health professions
recruitment programs, and many other programs. The IHCIA was last fully
reauthorized by the Indian Health Amendments of 1992,90 which extended
authorizations of its appropriations through FY2000. The authorizations for all
IHCIA programs were later extended through FY2001.91
Alaska Native and American Indian Direct Reimbursement Act of
2000.92 This act amended IHCIA to make permanent a demonstration program for
direct billing of Medicare, Medicaid, and other third-party payors by Indian tribes and
health organizations with self-determination contracts or self-governance compacts.
85 Title II of P.L. 100-472, act of October 5, 1988, 102 Stat. 2285, 2296.
86 §814 of P.L. 102-573, act of October 29, 1992, 106 Stat. 4526, 4590.
87 P.L. 106-260, act of August 18, 2000, 114 Stat. 711; 25 U.S.C. 458aaa et seq.
88 P.L. 94-437, act of September 30, 1976, 90 Stat. 1400, as amended; 25 U.S.C. 1601 et
seq., and 42 U.S.C. 1395qq, 1396j (and amending other sections).
89 IHCIA, §3(a); 25 U.S.C. 1602(a).
90 P.L. 102-573, act of October 29, 1992, 106 Stat. 4526. Previous reauthorizations occurred
in 1980 (P.L. 96-537) and 1988 (P.L. 100-713), and substantial amendments were made in
91 Omnibus Indian Advancement Act, P.L. 106-568, §815, act of December 27, 2000, 114
Stat. 2868, 2918.
92 P.L. 106-417, act of November 1, 2000, 114 Stat.1812; 25 U.S.C. 1645 and 1601 note, and
The demonstration program, involving four tribally operated IHS-owned hospitals
and clinics, had increased collections, reduced the turn-around time between billing
and receipt of payment, eased tracking of billings and collections, and reduced
Congressional Committee Jurisdiction
Currently a number of committees hold jurisdiction over legislation affecting
the Indian Health Service. In general, legislation amending an existing statute is
likely to be referred to the committees that held jurisdiction over the original
House Jurisdiction. Major jurisdiction over Native American issues, Indian
health care legislation, and self-governance is held by the Natural Resources
Committee. In matters of public health care and health facilities legislation and for93
programs such as Medicaid, Medicare Part B, and the State Children’s Health
Insurance Program (SCHIP), the Energy and Commerce Committee has jurisdiction.
However, the Energy and Commerce Committee shares jurisdiction with the
Committee on Ways and Means for legislation dealing with Medicare Part B. The
Committee on Ways and Means has exclusive jurisdiction over Medicare Part A.
Bills to reauthorize IHCIA have been referred to the Committee on Natural
Resources, and, in addition, to the Committees on Energy and Commerce and on
Ways and Means for consideration of provisions that come under their jurisdiction.
Recent IHCIA reauthorization bills also contain a provision to elevate the IHS
director to the level of an assistant secretary within HHS; a reauthorization bill withth
this provision in the 107 Congress (H.R. 1662) was referred to the Committee on
Government Reform (now the Committee on Oversight and Government Reform),thth
but bills with the same provision were not so referred in the 108-110 Congresses.
Senate Jurisdiction. In general, the Committee on Indian Affairs holds
jurisdiction over all Senate legislation relating to Indians. The Senate Health,
Education, Labor and Pensions Committee has jurisdiction over matters of public
health. The Senate Finance Committee has jurisdiction over Medicare, Medicaid,
and SCHIP. Recent Senate IHCIA reauthorization bills have been referred to the
Indian Affairs Committee alone, but in the 109th and 110th Congresses several bills
relating to provisions in the Social Security Act added by IHCIA, regarding Medicaid
and Medicare, originated in or were referred only to the Finance Committee.
Appropriations Jurisdiction. Although IHS is part of the Public Health
Service of HHS, its annual appropriation is under the jurisdiction of the Interior and
Environment subcommittees of the Appropriation Committees, in both houses.
93 Medicare Part B covers supplementary medical benefits such as physicians’ and
laboratory services; Medicare Part A covers inpatient hospital and certain related services.
For more detail, see CRS Report RL33712, Medicare: A Primer, by Jennifer O’Sullivan.
Current Legislative Issues
There are a number of Indian health issues that have been or likely will beth
debated in the 110 Congress. Foremost is the reauthorization of the IHCIA (and
related amendments to the Social Security Act (SSA)).
Reauthorization of the Indian Health Care Improvement Act
Although many, if not all, IHS programs may be considered permanently
authorized by the Snyder Act’s authorization of expenditures for “conservation of
health,”94 the IHCIA authorized a number of specific new programs and inserted
Indian provisions in the SSA. IHCIA’s specific authorizations of appropriations
expired at the end of FY2001. Congress has continued to appropriate funds for its
The current Senate IHCIA reauthorization bill, S. 1200, was introduced on April
24, 2007, and reported, with amendments, by the Senate Indian Affairs Committee
on October 16, 2007 (S.Rept. 110-197). The current House IHCIA reauthorization
bill, H.R. 1328, which is very similar to S. 1200, was introduced March 6, 2007, and
referred to the Natural Resources Committee, as well as to the Energy and Commerce
Committee and the Ways and Means Committee for provisions within their
jurisdictions. The Natural Resources Committee ordered H.R. 1328 reported, with
amendments, on April 25, 2007; the printed report was published April 4, 2008
(H.Rept. 110-564, part 1). The House Subcommittee on Health of the Energy and
Commerce Committee held hearings on H.R. 1328 on June 7, 2007, and marked up
the bill and forwarded it, amended, to the full committee on November 7, 2007.
Another Senate bill, which addresses only IHCIA-related amendments to the SSA,
was ordered reported by the Senate Finance Committee on September 12, 2007; this
bill was introduced January 8, 2008, as S. 2532 and was reported the same day
(S.Rept. 110-255). S. 2532’s provisions have already been incorporated into S. 1200
as reported and into H.R. 1328 as ordered reported by the House Natural Resources
S. 1200 was passed, amended, in the Senate on February 28, 2008. H.R. 1328
was discharged from the Energy and Commerce Committee and the Ways and Means
Committee on June 6, 2008, and the Natural Resources-reported bill was placed on
IHCIA reauthorization has been under consideration since 1999.
Reauthorization bills were introduced in the 106th (H.R. 3397 and S. 2526), 107th (S.
94 25 U.S.C. 13.
95 For a discussion of the relationship between appropriations and authorizations, see CRS
Report RS20371, Overview of the Authorization-Appropriations Process, by Bill Heniff Jr.
96 See U.S. Congressional Budget Office, “Cost Estimate: Medicare, Medicaid, and SCHIP
Indian Health Care Improvement Act of 2007, As Ordered Reported by the Senate
Committee on Finance on September 12, 2007,” October 10, 2007, p. 5.
3524, and S. 4122) Congresses. Negotiations among Indian health proponents, HHS
agencies, other departments, the Administration, and congressional committees and
offices have led to numerous changes in the bills from one Congress to the next.
Extensive hearings have been held on most bills, but only in the 108th-110th
Congresses have bills been reported from committee. The last IHCIA reauthorization
bill introduced in the 109th Congress, S. 4122, combined many of the changes made
to the earlier IHCIA bills during the 109th Congress (H.R. 5312, S. 1057, and S.
S. 1200 and H.R. 1328 have two health-related titles. Title I of each bill
contains three sections, one subsection of which (§101(a)) reauthorizes all of
IHCIA’s eight titles. The other subsections of Section 101 make technical
amendments elsewhere in federal law. Section 102 of Title I concerns sanitation
facilities for the Soboba Band of Luiseno Indians, and Section 103 amends the
ISDEAA to create a new Native American health and wellness foundation. The
Senate added to Title I of S. 1200 four more sections, two related to Indian health and
two to other matters. Title II of each bill contains amendments to the SSA, including
SSA provisions previously added or amended by the IHCIA. The Senate added to
Title II of S. 1200 six additional sections, two on Indian matters and four on
non-Indian Medicare and Medicaid issues. The Senate also added a Title III to S.
S. 1200, as passed by the Senate, and H.R. 1328, as reported, would make
numerous significant changes to current law. They would expand the roles of tribes,
tribal organizations (TOs), and urban Indian organizations (UIOs) in management
and decision-making; organize behavioral health services (alcohol and substance
abuse, social services, and mental health programs) into a “comprehensive
continuum” of prevention and treatment programs; create a construction priority
system for IHS-funded health facilities; authorize long-term and hospice care; exempt
Indians from Medicaid and SCHIP premiums and copayments; allow urban Indian
health programs (UIHPs) to get reimbursements from Medicare and other third
parties; and establish a commission on how to improve Indian health care delivery.
While retaining the same general structure of the current IHCIA, the bills would
rearrange many existing IHCIA sections so that provisions dealing with similar
topics, such as mental health or third-party reimbursements, are in the same title. The
bills would also centralize separate appropriations authorizations, now scattered
within each of IHCIA’s titles, into a single general authorization of appropriations
for each title and extend authorizations of appropriations through FY2017.
Issues and provisions are discussed below in their general order of occurrence
in the bills — S. 1200 as passed by the Senate and H.R. 1328 as reported. Changes
are also noted that were made in H.R. 1328 by the House Health Subcommittee of
the Energy and Commerce Committee, in the version it forwarded to the full
committee in November 2007.97 The bills are compared with current law and
97 See Manager’s amendments offered to H.R. 1328 in House Energy and Commerce
Committee’s Health Subcommittee, November 6, 2007, available at [http://energycommerce.
house.gov/cmte_mtgs/HESub110707MU/Manager’s%20amendment.pdf], last accessed June
sometimes with bills from previous Congresses. During the Senate’s consideration
of S. 1200, the Administration issued a “Statement of Administration Policy” (SAP)
on S. 1200.98 The SAP objected to about a dozen and a half items in S. 1200 and
threatened a veto over a provision involving the Davis-Bacon Act (see below). Some
of the new concerns raised by the SAP are noted in the discussions below.
Definitions. The bills add or amend many of the definitions used in the act,
set in IHCIA Section 4. Some of the changes may have program or policy
implications, discussed below.
Expansion of Services Definitions. The bills greatly expand the
definitions of health promotion and disease prevention, which increases the range of
services that Indians may demand of IHS, since the terms occur frequently in IHCIA.
For instance, IHCIA Section 203(b) of the bills would require that the HHS Secretary
“shall provide health promotion and disease prevention services to Indians.” The
term health promotion would be expanded from seven items to 34 and would
include general activities, such as “improving the physical, economic, cultural,
psychological, and social environment,” as well as many more specific programs,
such as abuse prevention, community health, and safe work environments (§4(11)).
The definition of disease prevention would be expanded to include limitation and
prevention of disease in general, not just of specific conditions (§4(9)). IHS fears it
may not have the funding or ability to provide all such expanded services (e.g., safe
housing or a safe work environment).99
Entities. The bills would add several new terms for Indian health services
managed by various entities: “Tribal Health Program” and “Indian Health Program.”
The term Tribal Health Program (THP) is defined as a tribe or TO that operates a
health program or facility funded partly or wholly by the IHS under an ISDEAA
funding agreement (§4(24)). An Indian Health Program (IHP) is defined as any
Indian health program administered directly by the IHS, by a THP, or by a tribe or
TO with HHS funding under the Buy Indian Act100 (§4(13)). Many references to
tribes and TOs in current law are changed to THPs in the bills; similarly, references
to the IHS, tribes, and TOs in current law are changed to IHPs. Current law already
authorizes TOs or tribes to operate some IHS-funded programs, but in the bills the
new terms often expand the types of entities eligible to receive funding or administer
98 U.S. Executive Office of the President, Office of Management and Budget, “Statement
of Administration Policy: S. 1200 — Indian Health Care Improvement Act Amendments of
99 Telephone conversation with an IHS spokesman, November 4, 2004.
100 Act of April 30, 1908, Chap. 153 (60th Cong.), 35 Stat. 70, 71; §23 of the act of June 25,
Traditional Health Care. The bills in several sections authorize or direct IHS
to fund traditional Indian health care practices, training, and practitioners. Some
earlier IHCIA reauthorization bills defined “traditional health care practices” as “the
application by Native healing practitioners of the Native healing sciences” asth
opposed to western medicine (e.g., S. 1057, 109 Congress, §4(23)), but the current
bills contain no definition of traditional health care practices. The SAP objected to
IHS-connected use of traditional health care practices without language protecting
the U.S. government from possible liability and litigation.
Indian Health Professional and Human Resources. As in current law,
Title I of both bills covers personnel recruitment, scholarships, and other educational
programs. The purpose of this title is to increase the number, and enhance the skills,
of Indian and non-Indian health professionals and other health personnel in the IHS.
To do this, the act authorizes scholarships for preparatory and professional schools.
The bills add UIO programs and employees, where possible, to be eligible for
involvement with training. They also expand the right to a “retention bonus” to all
health professionals employed in or assigned to IHP or UIO programs. They
eliminate nursing school clinics and restrict the existing community-college health
training programs to accredited community colleges on or near reservations.
Community Health. Title I of the bills also reauthorizes two programs, the
Community Health Representative Program and the Community Health
Aide/Practitioner (CHAP) program in Alaska. These two programs not only recruit
and train health representatives and aides, but also authorize them to provide health
care, health promotion, and disease prevention services (including some dental
services) to Indian communities, especially rural communities that have difficulty
accessing health services. A new provision in the CHAP authorization in the bills
authorizes a national CHAP program, although excluding certain community dental
Community Dental Health Services. The Alaska CHAP program recently101
started a new Alaska Dental Health Aide Therapist Program. The program seeks
to provide access to dental care for residents of remote Alaskan villages which cannot
support full-time dentists. It expands an existing CHAP program, which trains aides
in dental education, dental assistance, and preventive dental services, to allow the
aides to be trained as dental health aide therapists, who can perform more
complicated dental work. Although support exists for this expansion of
responsibilities for dental health aide therapists, including among dental hygienists
and the American Public Health Association, the American Dental Association
(ADA) is opposed, because of concerns that dental health aide therapists could be
performing dental work in Alaska that would not be up to the standards of care
offered to everyone else, and concerns that a CHAP dental health aide therapist
program may be extended to the lower 48 states. The ADA argues that because of
severe oral disease in the Alaskan Native population, highly skilled and trained
dentists are needed to solve these dental challenges. Supporters of the dental health
101 Eugene Sekiguchi, Albert H. Guay, L. Jackson Brown, and Thomas J. Spangler, Jr.,
“Improving the Oral Health of Alaska Natives,” American Journal of Public Health, vol. 95,
no. 5, May 2005, pp. 769-772.
aide therapist program, on the other hand, claim that the need is so great that
specially trained dental therapists could assist and solve many of the dental problems
faced by remote villages. Currently, Alaska CHAP dental health aide therapists
receive training outside the United States, because there are no U.S. programs
training such dental health aide therapists.
Both bills would allow the CHAP dental health aide therapist program in Alaska
to continue, but would prohibit any CHAP dental health aide therapists outside
Alaska, and would prohibit most oral surgery by therapists and limit their ability to
perform simple tooth extractions and pulpal therapy to situations certified as medical
emergencies by licensed dentists. Both bills would also require a study of the Alaska
CHAP dental health aide therapist program, to be conducted by a neutral panel of
“clinicians, economists, community practitioners, oral epidemiologists, and Alaska
Natives” (§121(c)(1)(B)), who would make several determinations on the quality and
adequacy of dental health aide therapist services and on safer and cheaper
alternatives, and report to Congress and the HHS Secretary.
Health Services. In current law, the health services title (Title II) authorizes
a number of specific health programs. In the bills Title II authorizes specific
physical, but not mental, health programs. Programs are moved in from other titles,
new programs are created, and a number of programs are moved to other titles; for
instance, most of the mental health provisions of this title in current law are moved
to the bills’ “behavioral health” title (Title VII), and provisions on third-party
reimbursements and managed care are moved to Title IV, which covers Medicare,
Medicaid, and other programs (see discussions below).
The provisions that remain in the health services title broaden the range of
health care services that the IHCIA authorizes IHS to provide. They add to the
purposes of the Indian Health Care Improvement Fund the elimination of funding
inequities for health care programs. They set out the requirements for the
Catastrophic Health Emergency Fund, including a new single-value threshold cost
($19,000) for treatment of victims. They broaden the provisions on diabetes
prevention, treatment, and control; create an IHS Office of Indian Men’s Health; and
add oral health and youth programs to Indian school health education programs.
They enlarge and combine the contract health service delivery areas (CHSDAs) in
North and South Dakota to become one CHSDA covering both states. Both bills
include the current requirement that the IHS establish an epidemiological center in
every IHS service area (§209).
Health-Care-Related Services. The current IHCIA authorizes an IHS
feasibility study of hospice care for terminally ill Indians and demonstration projects
for home- and community-based care for functionally disabled Indians. IHCIA
Section 213 in both S. 1200 and H.R. 1328 would substitute a general authorization
to fund, via IHS, tribes, and TOs, other health-care-related services and programs,
specifically including hospice care, home- and community-based services, assisted
living, and long-term care. The House Health Subcommittee’s version of H.R. 1328
would require that funding to flow only through the IHS. Concerns have been raised
about the standards under which these types of care would be provided, the specific
services that might be included, and the persons eligible for such care. H.R. 1328 but
not S. 1200 requires conformance with the “accepted and appropriate standards” for
the type of care provided and requires that the relevant state’s standards apply to the
care provided (unless the HHS Secretary establishes standards by regulation, which
may be no more stringent than state standards). S. 1200 only requires that assisted
living and home- and community-based services meet “applicable standards.” Both
bills define the services included through definitions; both bills define hospice care
and home- and community-based services by reference to the SSA (and, for hospice
care, other services that a tribe or TO determines necessary). S. 1200 but not H.R.
1328 defines assisted living services and long-term care services by references to
other laws. While silent on services to ineligible persons, both bills specify that
individuals eligible for long-term care must meet certain disability criteria, or be
determined eligible by an IHP, and do not require IHS eligibility. The
Administration’s SAP, however, objects to the possibility that currently ineligible
persons may become eligible for IHS-funded services, and also objects to the
expansion to new services.
S. 1200, but not H.R. 1328, authorizes funding for IHP “convenient care
services” programs, which are defined elsewhere in the bill as primary health care
services (such as urgent care, and “non-emergent” care, prevention, and screening)
that are provided outside regular operating hours or at alternative settings (IHCIA
§§213(d) and 306(c)(2) in S. 1200).
Diabetes. IHCIA Section 204 of S. 1200 (as passed by the Senate) and H.R.
1328 (as reported) replaces the existing diabetes provision with new language that
would require that IHS screen each eligible Indian for diabetes, determine the
prevalence of and the types of complications of this disease, and take steps to reduce
the incidence of diabetes. These bills would also require the Secretary to continue
funding all IHS diabetes programs in existence on the date of enactment or
established thereafter, a provision to which the Administration objects. The House
Health Subcommittee version of H.R. 1328 limits the funding requirement to model
diabetes prevention programs in existence on the date of enactment, and adds an end
date of FY2017. The bills would authorize the establishment of dialysis programs,
including purchasing equipment and providing necessary staffing. In addition, if
funding is available, the Secretary is required to consult with THPs in each IHS area
to establish a registry of diabetics in order to track the incidence and complications
of diabetes in the area and further to ensure that the data are disseminated among all
other area offices. The IHS could also establish a diabetes control officer in each IHS
area office. The bills would also authorize IHS to establish criteria under which
urban Indian organizations could receive grant funding for the prevention, treatment,
and control of diabetes.
Licensing of Health Professionals. Under current IHS rules, health
professionals employed directly by IHS are required to have a state license,102
certificate, or registration for their professional field, but the rules do not require
state licensure from each state in which an IHS health professional may practice.
Hence an IHS-employed health professional, if licensed by any one state, may
102 U.S. Dept. of Health and Human Services, Indian Health Service, Indian Health Manual,
Part 3, Chap. 1, Section 3-1.3(B)(5); available at [http://www.ihs.gov/publicinfo/
provide services in an IHS facility in the same or any other state.103 Both bills (§222
of H.R. 1328 as reported, and §221 of S. 1200 and the House Health Subcommittee
version of H.R. 1328) would extend this licensing exemption to THP-employed
health professionals, to provide services under the THP’s ISDEAA contract or
compact in any state served by that THP. Concerns have been expressed that this
provision of the bills may reduce the quality of health care to Indians. The House
Health Subcommittee version of H.R. 1328 limits the exemption to licensed health
professionals and to the services provided in the THP’s facilities.
Health and Sanitation Facilities. In current law, health and sanitation
facilities are covered in Title III. In the bills, several programs are transferred into
Title III from other titles and new programs are created. Among the new provisions
in the bills are a requirement (instead of a discretionary authorization) that the
Secretary provide financial and technical assistance to tribes, TOs, and Indian
communities to establish utility organizations to operate and maintain sanitation
facilities; an authorization for short-term, emergency IHS assistance to tribes in the
operation of sanitation facilities; a requirement for a feasibility study for a new
health-facility construction loan fund for tribes and TOs; authority for THPs to set
rents on staff quarters; and authority for IHS to accept funding for health care facility
construction from federal, state, and non-governmental sources. The current IHCIA
prohibits closure of all or part of an IHS-operated health care facility unless an
impact report has been submitted to Congress at least one year in advance, but, to
prevent facility closures based on reports done many years previously, the bills add
a requirement that the impact report be submitted no more than two years in advance
(S. 1200 applies these strictures to reductions in service hours as well as closures).
Allocation of Funds. Another new provision is a requirement that the
Secretary develop a priority system for health-care facility construction, instead of
just reporting on the priority system now in use (§301(c)). The bills, however, retain
current priority levels for the top 10 projects in four categories of facilities (inpatient,
outpatient, staff quarters, and youth treatment centers), to avoid penalizing projects
that have been slowly rising up the current priority ladder. This retention, or
“grandfathering,” of certain projects’ current priority levels concerns tribes whose
projects might be delayed even if, under a new system, they were to be assigned
higher priority levels than current top-10 projects. Both bills require the Secretary
to consult with tribes, TOs, and UIOs in developing innovative approaches to
meeting unmet facility needs, but S. 1200 specifies that this may include an “area
distribution fund,” composed of part of health facilities funding, under which each
IHS area would receive at least some health facilities funding (which is not the case
under the current priority system).
Small Ambulatory Care Facilities. Section 305 of S. 1200 and H.R. 1328
(as reported) amends a current provision, which authorizes grants to tribes and TOs
to construct or modernize small ambulatory care facilities, to reduce the minimum
service-population size for the grants and change the minimum user-population size
to a minimum number of visits. It also expands an exemption from these minimum-
size requirements, from (under current law) tribes or TOs on islands, to tribal or TO
103 IHS, personal communication, November 19, 2007.
facilities that are either on islands or on road systems that do not give direct access
to inpatient hospitals. The bills also expand the allowable uses of the grants to
include the reduction of tribal or TO debt incurred to construct or modernize such
ambulatory facilities. The House Health Subcommittee’s version of H.R. 1328
restores current language regarding minimum population sizes and deletes the use for
debt reduction, but adds a set-aside for grants to Indian communities below a
Convenient Care Facilities. S. 1200, but not H.R. 1328, authorizes
demonstration grants for convenient care services at IHS-funded facilities. S. 1200
defines convenient care services as primary health care services, including urgent and
nonemergent care, prevention services, screenings, and health promotion and disease
prevention services that are “provided outside the regular hours of operation of a
health care facility; or offered at an alternative setting” (IHCIA §306(c)(2)(A)).
Sanitation Facility Loans. Section 302(c) of H.R. 1328 adds new authority
to use appropriations for IHS sanitation-facilities construction to fund tribes’ loans
for sanitation facility construction and to meet other programs’ matching or cost-
participation requirements. Section 302(c) of S. 1200 changes this to an
authorization for the Secretary to guarantee loans made to tribes to construct
sanitation facilities, in accordance with Section 302(c) and certain sections of the
Public Health Service Act, and to the extent appropriations are specifically provided
and appropriations for IHS sanitation-facilities construction are not reduced. The
House Health Subcommittee version of H.R. 1328 deletes the authorization to fund
tribal loans from sanitation-facilities appropriations.
HUD Housing Sanitation. Both bills prohibit the use of IHS sanitation-
facilities funding to provide sanitation facilities for new homes funded by the
Department of Housing and Urban Development (HUD) (§302(c)(3)). Congress has
included a similar prohibition in annual IHS appropriations acts since FY2003. The
goal of this provision is for HUD to fund sanitation facilities for HUD-financed new
homes, so that IHS funds can be used to provide sanitation upgrades or initial
sanitation services to existing Indian homes and to homes built or improved by tribes,
the BIA, individuals, or other non-HUD public or private programs.
Davis-Bacon Act Application. The Davis-Bacon Act104 requires the
payment of “prevailing wages” in construction and renovation contracts to which the
federal government is a party and authorizes the Secretary of Labor to determine the
prevailing wages for a project. The current IHCIA applies the Davis-Bacon Act to
facility construction or renovation funded in whole or part by funds authorized under
Title III. Provisions in the ISDEAA exempt tribes and TOs from Davis-Bacon if they
both perform the construction under a self-determination contract or self-governance
compact and use their own employees.105 Critics of Davis-Bacon argue that the act’s
104 P.L. 71-798, act of March 3, 1931, 46 Stat. 1494, as amended; 40 U.S.C., Chap. 31,
105 25 U.S.C. 450e(a) and 25 U.S.C. 458aaa-8(g). For regulations on the application of
Davis-Bacon to IHS construction under the ISDEAA, see 25 CFR 900.125(c)(4) and 42 CFR
effect is to increase construction costs and reduce the volume of construction, while
proponents of Davis-Bacon argue that it prevents unfair competition and improves
craftsmanship and efficiency.106 Both bills retain the current application of Davis-
Bacon. The Senate-reported version of S. 1200, however, had added exemptions
from Davis-Bacon if a tribe or TO either carried out the project with its own
employees (whether under ISDEAA or not) or else contracted for the work with
ISDEAA (or other federal) funds and made its own determination of prevailing
wages. The January 2008 Statement of Administration Policy had objected to S.
1200’s Davis-Bacon provision as an expansion of Davis-Bacon requirements, and the
Senate replaced the reported language with current law.
Negotiated Rulemaking for Facilities. Title III of some earlier versionsth
of IHCIA reauthorization, such as S. 1057 (109 Congress), greatly expanded the
application of negotiated rulemaking for IHS facilities.107 Negotiated rulemaking
would have been required in establishing construction standards, sanitation facility
needs, criteria for participating in IHS-tribal joint ventures, and the priority systems
for facilities construction and for IHS funding to operate tribally constructed
facilities, as well as in applying Indian preference in construction or renovation of
IHS facilities and approving applications for Indian health care delivery
demonstration projects. The Administration objected, arguing that requiring
negotiated rulemaking was resource-intensive and unnecessary. S. 1200 and H.R.
1328 drop almost all the requirements for negotiated rulemaking, except in the
setting of the maximum renovation cost threshold for a health care facility above
which a tribe may use maintenance and improvement funds to replace the facility,
where the bills require that the threshold be determined through negotiated
rulemaking (§313(c)). The House Health Subcommittee version of H.R. 1328 drops
this remaining requirement for negotiated rulemaking.
Access to Federal Health Services and Reimbursements. Authority
for IHS health-care facilities to receive reimbursements from SSA’s Medicare and
Medicaid programs, contained in IHCIA’s Title IV in current law, was a major
component of the original IHCIA. The current bills consolidate provisions covering
reimbursements from third parties, whether from SSA programs or private parties,
into both Title II of the bills and IHCIA’s Title IV as rewritten in Section 101(a) of
137.379; for regulations on Davis-Bacon application to non-ISDEAA construction, see 42
106 For more complete discussion of these issues, see CRS Report 94-408, The Davis-Bacon
Act: Institutional Evolution and Public Policy, and CRS Report 94-908, Davis-Bacon: The
Act and the Literature, both by William G. Whittaker.
107 Negotiated rulemaking is a process for making federal regulations in which the federal
agency and representatives of interested groups (e.g., the group or industry to be regulated,
community and public interest groups, or state or local governments) meet as a committee
to reach consensus on a proposed regulation, before the proposal is published in the Federal
Register (Negotiated Rulemaking Act of 1990, P.L. 101-648, act of November 29, 1990, 104
Stat. 4970; 5 U.S.C., Chap. 5, Subchap. III). For a discussion of issues related to this
method of creating regulations, see CRS Report RL32452, Negotiated Rulemaking, by
Curtis W. Copeland.
the bills. Several programs are moved in from other titles of current law, especially
from the health services and miscellaneous provisions titles (IHCIA Titles II and
VIII, respectively), and new provisions are added.
Jurisdiction over Medicare, Medicaid, and SCHIP in the Senate is assigned to
the Finance Committee, which reported bills in the 109th (S. 3524) and 110th (S.
2532) Congresses that moved all IHCIA provisions (whether in current law or
proposed) that amend the SSA out of the IHCIA proper and placed them in a distinct
part of the reauthorization bills.108 In the 109th Congress, several of the IHCIA
reauthorization bills (H.R. 5312 as reported and S. 4122 as introduced) later
incorporated much of the Finance Committee proposals as Title II of each bill. S.
1200 and H.R. 1328 in the 110th Congress followed suit, retaining in IHCIA’s Title
IV only those provisions related to Medicare, Medicaid, and SCHIP that do not
amend the SSA, and placing amendments to the SSA in Title II of each bill.109
To reduce confusion, this section of the report (as well as the section below
titled “Amendments to the Social Security Act”) distinguishes between “Title II of
the bills,” where the bills place SSA amendments, and “IHCIA Title IV,” which is
amended in Title I of the bills. This section discusses only provisions in IHCIA’s
Several of the revised IHCIA provisions would change the status of tribes and
TOs with regard to recovering funds under federal health care programs, in particular
Medicare, Medicaid, and SCHIP. (These programs are administered in HHS’s
Centers for Medicare and Medicaid Services, or CMS, and so are called CMS
programs.) For example, IHCIA Section 401(a) in S. 1200 and H.R. 1328 adds UIOs
and SCHIP to existing IHCIA Title IV language excluding Medicare or Medicaid
reimbursements from being considered when determining annual Indian health
appropriations. Additional changes to IHCIA’s Title IV are discussed below.
Special Fund for Reimbursements. IHCIA Section 401(c) in S. 1200 and
H.R. 1328 (as reported) continues the authority for a special fund (administered by
the HHS Secretary) into which must be paid Medicaid reimbursements for services
provided by IHS facilities, but expands the special fund’s reach to include not only
Medicaid payments but also payments from any SSA program. Payments from the
special fund go to IHS service units, and Section 401(c) of the bills increases from
80% to 100% the proportion of any reimbursement that must go to the service unit
that provided the health services. Section 401(c) also broadens the allowable uses
of the reimbursement funds to authorize expenditures to reduce health resource
108 U.S. Congress, Senate Committee on Finance, Medicare, Medicaid, and SCHIP Indian
Health Care Improvement Act of 2006, report to accompany S. 3524, 109th Cong., 2nd sess.,
S.Rept. 109-278 (Washington: GPO, 2006); and U.S. Congress, Senate Committee on
Finance, Medicare, Medicaid, and SCHIP Indian Health Care Improvement Act of 2007,thnd
report to accompany S. 2532, 110 Cong., 2 sess., S.Rept. 110-255 (Washington: GPO,
109 In current IHCIA law, several sections in Title IV amend the SSA. S. 1200 and H.R.
1328 remove SSA amendments from IHCIA Title IV and change the sections so they simply
cross-reference the relevant SSA provision in Title II of each bill.
deficiencies in the tribe(s) served, once expenditures sufficient for compliance with
Medicare and Medicaid requirements have been made. The House Health
Subcommittee version of H.R. 1328 limits the SSA programs that pay
reimbursements into the special fund to Medicare and Medicaid, and limits the
allowable uses (after compliance expenditures) to increasing the capacity, quality,
and accessibility of the facility’s services.
Direct Reimbursement. The Alaska Native and American Indian Direct
Reimbursement Act of 2000 (see “Statutory Authority” above) amended the IHCIA
to require HHS to establish a program under which THPs might directly bill and
receive reimbursements from Medicare, Medicaid, and other third-party payors, for
prescribed services provided to eligible participants.110 Under current IHCIA law,
reimbursements for THPs choosing direct billing go directly to the THP, not into the
special fund. HHS must approve THPs’ applications to participate and must monitor
participating health facilities’ performance. Participating health facilities must report
annually to HHS and must expend reimbursements first to achieve or maintain
compliance with Medicare and Medicaid requirements, and may expend the funds
to improve the tribe’s health resources deficiency level only if there are funds left
In the bills, IHCIA Section 401(d) provides THPs with direct authority to do
direct billing and deletes current requirements for HHS approval, monitoring, and
reports. It expands the allowable uses of the reimbursements to include not only
complying with CMS programs’ requirements but also providing additional health
care services, improving health care facilities and programs, achieving any of the
IHCIA objectives listed in IHCIA Section 3, or carrying out “any health care related
purpose.” It also subjects reimbursements to all applicable auditing requirements.
HHS has objected to expanding the allowable uses beyond the original purpose of
meeting CMS program requirements; specifically it objects to the inclusion of any
IHCIA Section 3 objective and “any health care related purpose” as allowable uses.
The House Health Subcommittee version of H.R. 1328 expands the programs
covered to include SCHIP and limits the allowable uses to the same ones as the
special fund (compliance expenditures and increasing the capacity, quality, and
accessibility of the services).
Outreach Grants. IHCIA Section 402 of the bills expands the current
program of grants to TOs for outreach — intended to encourage Indian enrollment
in Medicare and Medicaid, including by paying premiums and processing
applications — to cover SCHIP enrollment and to include grants to UIOs. H.R.
1328 (as reported) requires that HHS facilitate cooperation with and agreements
between the states and IHS, tribes, TOs, and UIOs (a parallel provision is contained
in Section 202 of Title II of the bills). S. 1200 and the House Health Subcommittee
version of H.R. 1328 change the requirement to facilitate cooperation to a
requirement to develop and disseminate best practices for facilitating agreements (the
Health Subcommittee version further requires the Secretary, acting through CMS, to
consult with states, IHS, tribes, TOs, and UIOs on this activity). The application
processing provision in current law is moved to Title II of the bills.
110 See 25 U.S.C. 1645.
Rights to Reimbursements from Third Parties. Current IHCIA law
gives the United States, tribes, and TOs the right to recover the “reasonable expenses
incurred” in providing health services to individuals, including through civil actions
in court (except the United States may not recover against a tribal or TO self-
insurance plan). IHCIA Section 403 in the bills expands the right to recover to UIOs,
changes the right to recover to “reasonable charges billed,” and grants tribes and TOs
the same rights of recovery from any persons with liability (or their insurers) under
the Federal Medical Care Recovery Act111 as the United States would have. HHS is
concerned that the change from “expenses incurred” to “charges billed” may —
because IHPs do not bill for services to IHS-eligible persons — allow responsible
third parties to argue that they are not liable because no charges have been billed.
The House Health Subcommittee version of H.R. 1328 allows recovery of the
highest amount the third party would pay for care by nongovernmental providers
(even if higher than reasonable charges billed).
Purchase of Health Coverage with Federal Funds. A new provision
in the bills, IHCIA Section 405, allows tribes, TOs, and UIOs to use federal health
services funds and reimbursements to purchase health benefits coverage, such as
through a tribal health care plan, a health insurance provider or managed care plan,
or a self-insurance plan. Tribes, TOs, and UIOs are allowed to base the purchase of
health care coverage on beneficiaries’ financial need. S. 1200 allows purchase of
coverage through high deductible or health savings account plans, while the House
Health Subcommittee version of H.R. 1328 excludes purchase of coverage through
high-deductible health plans (or through health flexible spending arrangements). The
House Health Subcommittee version of H.R. 1328 adds a requirement that the
coverage must qualify as “creditable coverage” as defined in the Public Health112
Sharing Arrangements with Veterans Affairs and Defense
Departments. Another new provision in the bills, IHCIA Section 406, authorizes
HHS to enter agreements for IHS, tribes, and TOs to share medical facilities and
services with the VA and the Defense Department. This provision also creates a new
requirement that the VA and the Defense Department reimburse IHS, tribes, or TOs
for services provided to beneficiaries eligible for services from either the VA or
Defense. The House Health Subcommittee version of H.R. 1328 deletes this
requirement for VA and Defense reimbursements. The Administration’s SAP
objected to the reimbursement provision as a change to the allocation of costs for
Indian veterans’ health care costs between IHS and the VA under current law.
S. 1200 adds a new Section 407 that reaffirms the goals of a 2003 memorandum
of understanding between IHS and VA’s Veterans Health Administration regarding
VA treatment of eligible Indian veterans at IHS facilities. New Section 407 requires
the HHS Secretary to provide for payment for such treatment and to establish
guidelines for such payments to the VA, and prohibits use of funds appropriated for
IHS facilities, CHS, or contract support costs to make such payments. The section
also authorizes local memoranda of understanding, requires consultation with
111 P.L. 87-693, act of September 25, 1962, 76 Stat. 593, as amended; 42 U.S.C. 2651 et seq.
112 42 U.S.C. 300gg(c)(1).
affected tribes in negotiating such local memoranda, and defines “eligible Indian
veteran.” H.R. 1328 has no similar provision.
Payor of Last Resort. If an Indian is eligible for health care services under
any other federal or state program, the IHS may assist that Indian to enroll in the
program and collect for that Indian’s health services provided through the IHS. After
all other sources of payment are applied (including Medicaid, Medicare, SCHIP, any
state program, or any private insurance), the IHS pays for services or costs not
covered by those programs. Under a regulation in the current Code of Federal
Regulations, the IHS is designated as the payor of last resort, although only for113
contract health services. New IHCIA Section 408 in S. 1200 and Section 407 in
H.R. 1328 broaden the “payor of last resort” designation to cover all services
provided to eligible persons and extend the designation from the IHS to THPs and
UIO health care programs. The House Health Subcommittee version of H.R. 1328
adds an exception, specifying that IHPs and UIOs are not payors of last resort for
services to individuals eligible for VA or Defense health services.
Exemption of Entities from State or Local Licensing. IHS-operated
entities are exempt from state licensure requirements because of their federal
status.114 Facilities funded by IHS but operated by tribes, TOs, or UIOs are not so
exempt. New IHCIA Section 408 in H.R. 1328 and Section 409 in S. 1200 exempt
entities operated by the IHS, tribes, TOs, and UIOs from having to be licensed or
recognized under state or local laws as a condition for eligibility for reimbursement
from any federal health care program. Instead, such an entity shall be deemed to
have met such state or local licensing requirements if it is determined that the entity
“meets all applicable standards for such licensure.” If any staff member of the entity
lacks a state or local license required for its location, that fact may not be taken into
account if the staff member has a valid license from another state. The bills prohibit
payments by federal health care programs to entities or individuals who have been
excluded from participation in any federal health care program or whose license is
under suspension by the state. A parallel amendment to the SSA is in Section 205
of Title II of the bills.
HHS opposes exemption of tribal, TO, and UIO entities from state licensure,
arguing that it would not be consistent with maintaining quality of care. The bills do
not state who determines that an entity meets all the applicable standards, and place
no limits on the number or proportion of entity staffers who may not have state or
local licenses. The House Health Subcommittee version of H.R. 1328 deletes both
this section and Section 205 in Title II of the bills.
Feasibility Study of Treating the Navajo Nation as a State under
Medicaid. Both bills require the Secretary to study the feasibility of allowing the
Navajo Nation — a tribe with significant reservation land and population in three
states (Arizona, New Mexico, and Utah) — to be treated as a state for the purposes
of Medicaid services for all Indians within its boundaries. The study would assess
whether an entity should be established to which, like a state Medicaid agency, the
113 See 42 C.F.R. 136.61.
114 IHS, personal communication, November 19, 2007. See also 42 CFR 431.110(b).
Secretary could pay all Medicaid and related administrative expenditures that would
ordinarily go to the states of Arizona, New Mexico, and Utah for Indians living
within Navajo boundaries.
Urban Indian Health Services. In current law, IHS funding for urban
Indian health programs is authorized in IHCIA Title V. The same title in the bills
contains new and more inclusive programs for urban Indians and establishes a
Division of Urban Indian Health in IHS. It also adds several new programs and
greatly revises others. The bills authorize a UIO to provide health care services in
any urban center, instead of just in the urban center where the UIO is located, and
also authorize HHS funding for the construction and operation of at least two (in S.
1200, one) residential treatment centers in each state, for urban Indian youth who
need culturally competent alcohol and substance abuse treatment services. Besides
the annual onsite evaluations of UIHPs required in current law, the bills add as an
alternative the option of accepting evidence of the UIO’s accreditation by a
recognized Medicare review entity (the House Health Subcommittee version of H.R.
1328 deletes this alternative option). Grants to UIOs are authorized for diabetes
prevention, treatment, and control, similar to existing diabetes grants to tribes and
TOs under IHCIA Title II. UIOs are given access to the Community Health
Representatives program (see IHCIA Title I). Both bills authorize HHS to study the
feasibility of federal direct or guaranteed loans for UIO facilities construction, and
require that IHS consult (or, in S. 1200, confer) with UIOs “to the greatest extent
practicable.” The bills make all changes effective immediately upon enactment,
whether any implementing regulations have been promulgated or not.
Some previous bills reauthorizing the IHCIA would have extended to UIOs the115
protections of the Federal Tort Claims Act (FTCA), given UIOs access to federal
vendors and suppliers on the same basis as federal executive agencies, and expanded
the current authorization for UIOs to use HHS federal facilities to include equipment
and other personal property in the facilities. None of these proposals are included in
S. 1200 or H.R. 1328.
Constitutionality of Urban Indian Health Program. IHCIA extends
eligibility for its urban Indian health program not only to members of federally
recognized tribes but also to persons who are not members of such tribes, including
members of state recognized tribes, members of tribes whose federal recognition was
terminated after 1940, non-member descendants of tribes, and individuals who are
Alaska Native or are considered to be Indian by the Secretary of the Interior or the
HHS Secretary.116 Federally recognized Indian tribes are considered political entities
by the federal government, so federal assistance to such tribes and their members is
115 Act of August 2, 1946, Chap. 753 (79th Cong.), Title IV, 60 Stat. 842, as amended; 28
U.S.C., Chap. 171. IHS employees, as federal employees, are covered by the FTCA. Tribes
and tribal organizations with ISDEAA contracts or compacts, and their employees, are also
covered by the FTCA (25 U.S.C. 450f(d), 25 U.S.C. 450f note). See GAO, Federal Tort
Claims Act: Issues Affecting Coverage for Tribal Self-Determination Contracts
(GAO/RCED-00-169, July 2000), available at [http://www.gao.gov/archive/2000/rc00169.
pdf]. UIOs with contracts under IHCIA Title V are not covered.
116 25 U.S.C. 1603(c), (f).
not based on race. The U.S. Department of Justice has questioned whether the urban
Indian eligibility standards, insofar as they go beyond federally recognized tribes, are
racially based, and thus whether the current urban Indian health program meets
Constitutional equal protection standards.117 Proponents of the urban Indian health
program argue that state-recognized tribes are also political entities and that the
IHCIA’s definition of urban Indians meets the necessary legal tests.118 In the years
since the urban Indian health program was authorized in the original IHCIA in 1976,
there have been no challenges to the constitutionality of the urban Indian health
program, so there are no federal court decisions on the questions raised by the Justice
IHS Organizational Changes. The bills make no change in IHS’s
organizational status as a part of the PHS within HHS, but H.R. 1328 establishes a
new position of Assistant Secretary of Indian Health. The bills also authorize
contracts and agreements with federal and state agencies and private and nonprofit
organizations for enhancing information technology and add requirements that the
automated management information system include a training component and an
interface mechanism for the patient billing and accounts receivable system.
Elevation of the Director. Section 601 of H.R. 1328, in all versions,
elevates the Director of IHS to the new position of Assistant Secretary of Indian
Health under the Secretary of Health and Human Services. The new assistant
secretary would be responsible for reporting to the Secretary on all policy and budget
matters relating to Indian health, coordinating department activities on Indian health
matters, advising on all Indian health matters, and representing Indian issues to the
heads of other HHS agencies and programs. S. 1200 as passed by the Senate dropped
Behavioral Health Programs. Current law has a title (IHCIA Title VII)
covering alcohol and substance abuse programs. The bills expand the existing title
to cover all mental and behavioral health programs, not just alcohol and substance
abuse. The aim is to create a “comprehensive behavioral health prevention and
treatment program” (see Sections 701 and 703 in the bills). Title VII in the bills
brings together all the mental and behavioral health programs that are in other titles
of current law, generally substitutes the term “behavioral health” for the terms
“mental health” and “alcohol and substance abuse,” expands eligibility and additional
practices, and adds mandates to consult with tribes and TOs on policy decisions.
117 “Prepared Statement of C. Frederick Beckner III, Deputy Assistant Attorney General,
Civil Division, Department of Justice,” in U.S. Congress, Senate Committee on Indianthst
Affairs, Indian Health Care Improvement, hearings, 110 Cong., 1 sess., March 8, 2007,
S.Hrg. 110-53 (Washington: GPO, 2007), pp. 41-42. See also “Department of Justice White
Paper,” available at [http://www.nihb.org/docs/ihcia_doj_2006-10_ opposition_paper.pdf],
pp. 2-3; the unofficial release of this unofficial Justice Department paper was discussed in
the March 8, 2007, hearings (S.Hrg. 110-53, pp. 16-18).
118 “Statement of Edward P. Lazarus, Partner, Akin Gump Strauss Hauer & Feld, LLP,” in
U.S. Congress, Senate Committee on Indian Affairs, Indian Health Care Improvement,
S.Hrg. 110-53, pp. 81-100.
The bills require HHS to provide a “comprehensive continuum of behavioral
health care “ (within feasibility and appropriations limitations) that includes nine
specified sets of services, including outpatient and residential treatment, acute
hospitalization, detoxification, emergency shelter, transitional living, and
community-based prevention, intervention, and aftercare (§701). The section also
requires various specific behavioral health services for Indian children, adults,
families, and elders. Section 703 expands the current requirement for a
comprehensive alcohol and substance abuse prevention and treatment program to a
comprehensive behavioral health, prevention, treatment, and aftercare program.
Section 703 in S. 1200 and H.R. 1328 (as reported, but not the House Health
Subcommittee version) adds tribes and TOs to the current authorization for IHS to
use CHS for treatment services. Section 709 of the bills authorizes HHS to provide
one inpatient mental health care facility in each IHS service area (with California
being divided into two areas). Section 708 creates a youth telemental health
demonstration project targeting Indian youth suicide. In addition, Title VII of the
bills expands the alcohol and substance abuse programs for women and youth to
cover all behavioral health problems and adds a set-aside for UIOs in the women’s
program (§§706-707). Title VII also expands the program for community education
and involvement to all behavioral health issues and allows (in S. 1200 and H.R. 1328
as reported but not in the House Health Subcommittee version) implementation by
tribes and TOs (§710); changes the fetal alcohol disorder (FAD) program to add
diagnostic clinics, early intervention projects, and FAD housing (§712); requires
(current law authorizes) establishment in every IHS service area of treatment
programs for both child sexual abuse victims and (in H.R. 1328 but not S. 1200)
child sexual abuse perpetrators (§713); and changes the behavioral health research
program by making tribes, TOs, and UIOs, instead of the IHS, the contractors with
research institutions (§714 in H.R. 1328 and §716 in S. 1200).
Other Issues. In current law, a number of separate provisions covering
reports, regulations, and a variety of other topics are included in a “Miscellaneous”
title (IHCIA Title VIII). The bills retain this title, but add a number of new programs
and move many provisions of current law to other titles.
Reports. Many titles of the current IHCIA contain requirements for annual or
one-time reports to Congress, and current IHCIA Title VIII requires additional
reports and directs that most of the reports be transmitted to Congress with the
President’s annual submission of the U.S. government budget (§801). S. 1200 and
H.R. 1328 retain this pattern, but they require the reports to be transmitted directly
to Congress; expand the required report on the impact of new national health-care
programs to cover HHS consultation with TOs and UIOs; add SCHIP to the
accounting on reimbursements from other CMS programs (Medicaid and Medicare);
and add a report on Indian use of contract health services. The bills drop a provision
of earlier versions (e.g., H.R. 5312 and S. 1057 in the 109th Congress) requiring a
comparison of actual Indian health appropriations with the amounts needed to
achieve Indian parity with the general population in health status and services. The
House Health Subcommittee version of H.R. 1328 adds a report on compliance by
IHS, tribal, TO, and UIO facilities with IHS credentialing and state licensure
requirements. It also moves to the CMS accounting report (from Title II, Section
their use of IHS, and their health status. The Statement of Administration Policy
objects to requirements for new reports, arguing that they restrict HHS flexibility to
deliver health care services.
Negotiated Rulemaking for Regulations. S. 1200 and H.R. 1328 increase119
the number of instances where IHS must conduct negotiated rulemaking to create
programs’ regulations. Under the current IHCIA (§802), the requirements for
regulations are that IHS must first consult with tribes and TOs and must publish final
regulations in the Federal Register at least 60 days prior to their effective date. The
new IHCIA Section 802 in the bills requires negotiated rulemaking for regulations
relating to health services (Title II), behavioral health (Title VII), and Section 313(c)
(see “Health and Sanitation Facilities,” above) and Section 807 (regarding health
services for IHS-ineligible persons), and allows discretionary rulemaking under the120
Administrative Procedure Act for human resources (Title I), facilities (Title III),
reimbursements (Title IV), and urban Indian health (Title V). Earlier versions of
IHCIA reauthorization (e.g., S. 1057 in the 109th Congress) required negotiated
rulemaking in many more programs, including most of human resources (Title I) and
facilities (Title III), and also prohibited rulemaking on IHS organization (Title VI)
and for the miscellaneous-provisions title (Title VIII). Section 802 in the bills also
sets a deadline for publication of all proposed regulations of two years after
enactment, requires a minimum time length for comment periods, and sets a deadline
for publication of all final regulations of three years after enactment. A provision in
earlier bills, setting a deadline after which HHS authority to make IHCIA regulations
would expire, is not included in H.R 1328 or S. 1200.
As noted above, the Administration opposed many negotiated rulemaking
requirements, arguing that negotiated rulemaking was more resource-intensive and
was not necessary.
Abortion. Under current IHCIA law, funds appropriated for the IHS must
follow whatever limitations on funding for abortions there are in the HHS121
appropriations act for the same time period. This restriction, added in its current
form to the IHCIA in 1988, applies to any IHS funds expended by IHPs and UIHPs.
Such limitations on federal funding for abortion are usually known as “Hyde
Amendments.” The Hyde Amendment in the current HHS appropriations act forbids
funding for abortion — or for health benefits coverage (defined as the package of
services provided by a managed care organization) that includes coverage of abortion
— except in cases of rape or incest or when the mother has a physical condition that
would endanger her life unless an abortion were performed.122
119 5 U.S.C., Chap. 5, Subchap. III. See “Negotiated Rulemaking for Facilities,” above.
120 Act of June 11, 1946, Chap. 324 (79th Cong.), 60 Stat. 237, as amended; 5 U.S.C., Chap.
121 IHCIA §806; 25 U.S.C. 1676.
122 Consolidated Appropriations Act, 2007, P.L. 110-161, Div. G, Title V, §§507-508, 121
Stat. 1844, 2208-2209. For fuller discussion of the Hyde Amendments, see CRS Report
RL33467, Abortion: Legislative Response, by Jon O. Shimabukuro and Karen J. Lewis.
S. 1200 was amended on the Senate floor to add a provision (Sec. 805(a)-(b))
that replaces the current law with language similar but not identical to the current
Hyde Amendment. The provision differs from the Hyde Amendment in two respects:
the incest exception is applied only to incest against a minor, and the term “health
benefits coverage” is redefined to include services under a contract, compact, grant,
or other agreement. Proponents of the provision argued that, because the Hyde
Amendment in HHS appropriations acts must be voted on every year, it is subject to
change every year, while the provision would make the Hyde Amendment permanent
in its application to the IHS. An opponent of the provision, the private nonprofit
National Indian Health Board, argued that the IHS already complies with the Hyde
Amendment and should not be held to different standards from other HHS programs,
and that the amendment is unnecessary and duplicative insofar as it is the same as the
H.R. 1328, in both the introduced and House Health Subcommittee versions,
retains the abortion provision in current law.
Eligibility for Services. Section 811 of H.R. 1328 (but not S. 1200) adds to
IHCIA a provision postponing the application of a 1987 IHS regulation on health
services eligibility until IHS submits to the House and Senate Appropriations
Committees a budget proposal that reflects any increased costs associated with the
proposed changes in eligibility, and the budget proposal has been enacted into law.
Application of the 1987 regulation has been continually postponed in annual
appropriations acts. (See “Eligible Population,” above.)
Labor Law Exemption. Section 811 of S. 1200, as passed by the Senate,
extends to tribes and TOs carrying out self-determination contracts or self-
governance compacts the same exemptions from the National Labor Relations Act123
that federal, state, and local governments enjoy. H.R. 1328 has no similar provision,
in any of its versions, nor does current IHCIA law. Section 811 of S. 1200 does not
limit the application of this exemption to ISDEAA contracts or compacts with IHS
or HHS, so the exemption may apply to ISDEAA contracts and compacts with all
Entitlement or Non-Entitlement.124 IHCIA Section 813 of S. 1200 and
H.R. 1328 as reported (Section 812 of the House Health Subcommittee version of
H.R. 1328) would establish a national bi-partisan commission on the delivery of
Indian health care. Earlier versions of IHCIA reauthorization, introduced in the 108th
and preceding Congresses, would have created a commission focused entirely on
Indian health care entitlement, with directions to recommend whether health services
could be provided to Indians under an entitlement program.
123 Act of July 5, 1935, Chap. 372 (74th Cong.), 49 Stat. 450, as amended; 29 U.S.C., Chap.
124 See the discussions at Jo Ann Kauffman, Reauthorization of the Indian Health Care
Improvement Act: Background and Issues (Henry J. Kaiser Family Foundation, October
of-the- Indian-Health-Care-Improvement-Act-Background-and-Issues-Report.pdf]; and U.S.
Commission on Civil Rights, Broken Promises, pp. 107-108.
The IHS health care delivery program is not an entitlement under federal law.
IHS cannot commit funding for services if that funding has not been appropriated.
Consequently, IHS health services depend each year on the annual appropriation. An
entitlement program, on the other hand, such as Medicaid and Medicare, statutorily
obligates the federal government to make payments to any person who meets the
legal criteria for eligibility. An entitlement program may be funded through either
permanent or annual appropriations, but the program’s law requires that Congress
appropriate whatever funds are needed. One of the major issues addressed in the
IHCIA reauthorization bills before Congress is the tension between (1) the choices
that must be made under the constraints of a finite annual appropriation and (2) the
view of many Indians that their health care services are (or should be) an entitlement
and, as such, are the sole responsibility of the federal government under trust or treaty
To its proponents, the advantage of an entitlement program for Indians would
be that federal spending on eligible Indians’ health care would not be limited to a
specific appropriated amount. Spending controls on entitlement programs are done
either by reducing benefits, limiting the conditions covered, changing the eligibility
requirements for beneficiaries, or generating new revenues, so among the issues to
be considered would be whether and how to limit the entitlement’s level of spending.
Entitlement proponents argue that Indians’ loss of land and resources justifies making
Indian health care an entitlement program, despite the cost. Some advocates are
concerned about how a “beneficiary” would be defined, and whether Congress would
require “means testing” as part of the eligibility criteria. These supporters argue that
if Congress imposed means testing, those Indians not meeting the means test would
have their treaty rights abrogated. Some opponents argue that federal Indian treaties
and agreements did not promise unlimited health care services to all Indians, or else
that Indians have already been compensated for lost lands and resources. Other
opponents question whether an entitlement’s “benefit package” would cover the non-
clinical services (e.g., sanitation facilities) provided now through IHS. If non-clinical
services were not provided, some believe that the quality of care would diminish
under an entitlement program.
The commission authorized under S. 1200 and H.R. 1328 would make
recommendations on Indian health care delivery and related issues, including “the
optimal manner” — such as entitlement — in which to provide Indian health care.
The Administration’s SAP objected to the commission, arguing it was unnecessary
because HHS and IHS continually try to improve health care services delivery to
Charges for Health Care Services (Cost-Sharing). Currently the IHS
is forbidden to charge eligible Indians for services, nor can it require tribes and TOs125
with ISDEAA arrangements to charge them. IHS policy since at least 1967 had
been that it was not required to charge Indians for services.126 Congress added annual
125 25 U.S.C. 1681 and 25 U.S.C. 458aaa-14(c).
126 U.S. Department of Health and Human Services, Indian Health Service, Indian Health
Manual, Part 2, Chap. 2, “Payment for Services,” last updated November 2, 1967; available
prohibitions against IHS charging for services in the annual appropriations acts for
IHS for FY1985-FY1995, before making the prohibition permanent in 1996.127 Four
years later Congress also forbade IHS from billing under ISDEAA and from requiring
tribes or TOs to do so.128
IHS had assumed that the statutory prohibitions against its charging for services
also covered tribes and TOs with ISDEAA arrangements, as had been confirmed in
a 1996 ruling by the HHS Departmental Appeals Board.129 In January 2008, however,
in a case involving a California tribe negotiating an ISDEAA self-governance
compact with IHS, a federal district court rejected that argument, finding that IHS
could not deny the tribe’s compact merely because the tribe planned to charge Indians
for services for which IHS could not charge.130 IHS did not appeal this ruling.
The Senate amended S. 1200 to add a new provision, Sec. 816, that specifies
that nothing in the IHCIA limits the ability of a THP operating an IHS-funded
program through an ISDEAA self-governance compact to charge an Indian for
services it provides. (Section 816 also adds that nothing in the IHCIA authorizes
IHS either to charge an Indian for services or to require a THP to charge an Indian
for services.) The provision does not address whether THPs operating programs
under an ISDEAA self-determination contract may charge Indians for services, and
leaves to compacting THPs the decisions on the amounts to charge, the criteria for
charging, or the programs for which to charge. The Senate passed S. 1200 with this
amendment. H.R. 1328 has no similar provision, in either the reported version or the
House Health Subcommittee’s version.
Cherokee Freedmen. A membership dispute within the Cherokee Nation
of Oklahoma (CNO) may lead to the addition of a provision to an IHCIA
reauthorization bill that would restrict CNO access to IHS funding and services.131
The Cherokee Nation, one of the two largest federally recognized tribes, voted in
March 2007 to amend the membership criteria in its tribal constitution so as to limit
membership to descendants of only one of the CNO “Dawes Rolls” (compiled by the
federal government in the early 20th century), namely the so-called “blood roll.” The
effect of the amendment is to drop from tribal membership all those descended solely
from another Dawes Roll, the so-called “Freedmen roll.” The previous tribal
last accessed April 11, 2008.
127 25 U.S.C. 1681 notes.
128 25 U.S.C. 458aaa-14(c).
129 Nizhoni Smiles, Inc. v. Indian Health Services, DAB CR450 (1996); available at
130 Susanville Indian Rancheria v. Leavitt et al., 2008 U.S. Dist. LEXIS 365 (E.D. Cal.,
January 3, 2008, No. 2:07-cv-259-GEB-DAD).
131 “Cherokee Freedmen Issue Affects Debate on Hill,” Indianz.com, April 14, 2008,
available at [http://www.indianz.com/News/2008/008164.asp]; and “House Committees
Given Extension on IHCIA,” Indianz.com, April 28, 2008, available at [http://www.indianz.
constitution approved in 1976 included descendants of either roll as members. The
Cherokee Freedmen oppose the 2007 amendment, arguing that it is discriminatory132
and violates an 1866 treaty between the United States and the Cherokee Nation.133
The CNO argues that a tribe should be able to determine its own membership and
that the amendment simply limits CNO membership to persons with Cherokee
ancestry.134 Both CNO courts and federal courts are considering cases related to
Cherokee Freedmen membership in the CNO. A May 2007 CNO court injunction
reinstated the Cherokee Freedmen’s tribal membership until the court decided
whether the 2007 amendment was legal.135
Legislation already introduced (H.R. 2824, 110th Cong.) would sever the CNO’s
government-to-government relationship with the federal government (making the
CNO ineligible for federal Indian programs), and suspend the CNO’s right to conduct
gaming under the Indian Gaming Regulatory Act,136 until the CNO is in compliance
with the 1866 treaty and the Cherokee Freedmen’s tribal membership is restored.
Amendments to House bills concerning Indian housing (H.R. 2786) and economic
development (H.R. 3002) programs would also make the CNO ineligible for these
programs pending CNO compliance with the 1866 treaty and restoration of Cherokee
Freedmen membership (although H.R. 2786 would suspend CNO ineligibility while
the CNO court injunction against the 2007 amendment is in force). It is likely that
a Cherokee Freedmen provision, were it offered as an amendment to an IHCIA
reauthorization bill, would place restrictions on IHS and other federal health funding
for the CNO similar to those in these three bills.
Amendments to the Social Security Act
Separate from the reauthorization of the IHCIA, S. 1200 and H.R. 1328 amend
several sections of titles XVIII (Medicare), XIX (Medicaid), XXI (SCHIP), and XI
(general provisions) of the Social Security Act. As noted above (“Access to Federal
Health Services and Reimbursements”), amendments to SSA were removed from the
IHCIA proper and incorporated into a Title II of the bills in the 109th Congress. SSA
amendments remain in Title II in both S. 1200 and H.R. 1328 in the 110th Congress.
As in the above section, this section of the report distinguishes between “Title II of
the bills,” where the bills place SSA amendments, and “IHCIA’s Title IV,” which is
132 See Descendants Of Freedmen Of The Five Civilized Tribes, “Why,” available at
[http://www.freedmen5tribes.com/Why.htm], last accessed April 30, 2008.
133 Treaty with the Cherokee, July 19, 1866, 14 Stat. 799. In Article 9 of the treaty the
Cherokee Nation agreed that all freedmen (liberated slaves and “free colored persons”) who
met certain conditions, and their descendants, “shall have all the rights of native
Cherokees...” (14 Stat. 801).
134 See Cherokee Nation, “Citizenship Status of Non-Indians,” available at
[http://freedmen.cherokee.org/], last accessed April 30, 2008.
135 For more detailed discussion, see CRS Report RL34321, The Cherokee Freedmen
Dispute: Legal Background, Analysis, and Proposed Legislation in the 110th Congress, by
136 P.L. 100-497, act of October 17, 1988, 102 Stat. 2467, as amended; 25 U.S.C., Chap. 29,
and 18 U.S.C. 1166-1168.
amended in Title I of the bills. This section discusses provisions in Title II of the
Medicaid. Under current law, Section 1911 of the SSA137 — added to the SSA
by the 1976 IHCIA — makes IHS health facilities, whether operated by IHS, a tribe,
or a TO, eligible for reimbursement from Medicaid for coverable services, and
authorizes HHS to make agreements to reimburse states for Medicaid-eligible
services provided by IHS, tribal, and TO facilities.138
Title II, Section 201(a), of the bills amends SSA Section 1911 to extend
Medicaid eligibility to UIOs. It also changes the eligible entities from IHS facilities
to IHS, tribes, TOs, and UIOs as organizations, whether or not the organizations are
IHPs (i.e., provide health services under ISDEAA or the Buy Indian Act — see
“Definitions,” above). This change may broaden the range of eligible health services,
facilities, and entities. HHS objects to the addition of UIOs, arguing that eligible
UIOs can already get Medicaid reimbursements through states. It also objects to the
extension of eligibility beyond IHPs, to organizations. The House Health
Subcommittee version of H.R. 1328 drops the addition of UIOs and limits eligibility
for Medicaid reimbursement to IHPs.
Other amendments by Section 201(a) of Title II of the bills to SSA Section 1911
require reimbursements for benefits covered under a state Medicaid waiver as well
as under a state plan, and specify that health services may be covered whether the
delivery of the services is direct, through referral, or under contract or other
arrangements. HHS considers the new service delivery language confusing, and the
House Health Subcommittee version of H.R. 1328 deletes this language.
Section 201(a) of the bills also renews a long-dormant provision in Section
1911, which gave facilities up to 18 months from IHCIA’s 1976 enactment to meet
Medicaid requirements, by bringing the provision up to date, adding tribes, TOs, and
UIOs, and adding to the original requirement for a plan to meet Medicaid conditions
a further requirement that a facility make improvements in accordance with the plan.
HHS opposes this renewal, arguing that current IHS and tribal facilities have long
been in compliance with Medicaid requirements and that IHS and CMS processes are
sufficient to resolve any compliance problems. The House Health Subcommittee
version of H.R. 1328 drops the renewal, deleting the provision altogether.
Section 201(a) also adds definitions of “Indian tribe,” “Indian Health Program,”
“Tribal Health Program,” and other terms to Section 1911 by referral to definitions
in IHCIA Section 4. The House Health Subcommittee version of H.R. 1328 moves
the definitions to the general SSA definitions section in Title XI of the SSA.
137 42 U.S.C. 1396j.
138 Section 1905(b) of the SSA sets the federal reimbursement rate to states for such
IHS-funded facilities at 100% (42 U.S.C. 1396d(b)).
Medicare. Under current law, Section 1880 of the SSA139 — added to the SSA
by the 1976 IHCIA — makes IHS health facilities, whether operated by IHS, a tribe,
or a TO, eligible for reimbursement from Medicare for coverable services, as long
as they meet applicable Medicare requirements. The 1976 IHCIA amendment was
necessary because the SSA prohibits payment to a federal agency for
Medicare-covered services (with exceptions for VA hospitals and certain hospital140
emergency services). Section 201(b) of Title II of the bills makes amendments to
current Medicare law that parallel many of the amendments made by Section 201(a)
to the Medicaid section.
Section 201(b) of Title II of the bills amends Section 1880 to add facilities
operated by UIOs as eligible for Medicare reimbursements, and to cover all
Medicare-covered items and services provided by IHS or a tribe, TO, or UIO, without
reference to a health facility. HHS opposes inclusion of UIOs under Section 1880
because they are eligible under general Medicare law. HHS also argues that the
language covering IHS, tribes, and TOs is too broad, suggesting IHPs as a narrower
term. As with Medicaid, the House Health Subcommittee version of H.R. 1328
drops the addition of UIOs and limits eligibility for Medicare reimbursement to IHPs.
Section 201(b) of the bills also renews a dormant provision in Section 1880,
similar to that in the Medicaid section, giving facilities 18 months from IHCIA’s
1976 enactment to meet Medicare requirements and makes the same amendments as
in the Medicaid section. HHS has the same objections to this renewal as to the
Medicaid renewal, and the House Health Subcommittee version of H.R. 1328 drops
Title II of the bills also adds the same definitions as for Medicaid, which the
House Health Subcommittee version of H.R. 1328 moves to the general SSA
SCHIP. Currently, Section 2105 of the SSA141 exempts an IHS-operated or
IHS-funded insurance program from the SCHIP prohibition on federal
reimbursements to states for child health services where another federal health
insurance program has paid or is expected to make the payment. Section 203(c) of
Title II of the bills adds tribes, TOs, and UIOs to SSA Section 2105 and changes the
type of program for which reimbursements are allowed from insurance to health care.
Section 201(c) of Title II of the bills amends SSA Section 2107, which lists SSA
sections that apply to SCHIP in the same way as they do to the Medicaid program,
to add most of the amended SSA Section 1911’s Medicaid provisions to the
provisions that apply to SCHIP. This includes such provisions as eligibility (thus
extending eligibility from IHS alone to tribes, TOs, and UIOs), HHS agreements with
states for reimbursement to Indian entities, direct billing by Indian entities, and
definitions of Indian entities. The provision regarding payment of reimbursements
into the special fund would not apply to SCHIP. The House Health Subcommittee
139 42 U.S.C. 1395qq.
140 42 U.S.C. 1395f(c).
141 42 U.S.C. 1397ee(c)(6)(B).
version of H.R. 1328, by changing the bills’ amendments to SSA Section 1911, drops
UIOs from SSA Section 2107.
Increasing Indian Enrollment in Medicaid and SCHIP. Title II of the
bills amends the SSA, including replacing current SSA Section 1139, to add a
number of new provisions intended to improve outreach to and enrollment of Indians
in Medicaid and SCHIP. Section 202 of Title II of the bills amends a provision in
IHCIA Title IV of current law — which allows HHS agreements with tribes, TOs,
and UIOs for receipt and processing of applications for Medicare and Medicaid at
IHS-funded facilities — to require HHS to encourage states to provide for Medicaid
and SCHIP enrollment on or near Indian reservations, including state agreements
with IHS, tribes, TOs, and UIOs for the Indian entities to provide outreach services
including enrollment. Existing arrangements between states and IHS, tribes, TOs,
and UIOs regarding such administrative activities are not to be affected. Section 202
of the bills also requires the HHS Secretary, through CMS, to “take such steps as are
necessary to facilitate cooperation with, and agreements between” states and the IHS,
tribes, TOs, and UIOs regarding provision of health care under the CMS programs
(similar language is included in IHCIA Section 402 of the bills).142 HHS objects to
the mandate that HHS take whatever steps are necessary to facilitate cooperation and
agreements, arguing that the provision invites litigation over whether HHS has taken
sufficient steps to meet the mandate. The House Health Subcommittee version of
H.R. 1328 changes the requirement to facilitate cooperation to a requirement that
HHS consult with states, IHS, tribes, TOs, and UIOs in the development and
dissemination of best practices for facilitating agreements.
The SSA currently sets a cap on expenditures for outreach and other specified143
purposes at 10% of federal payments to a state for SCHIP benefits. Section 203(a)
of Title II of the bills excludes from the 10% cap expenditures for outreach activities
to families of Indian children likely to be eligible for SCHIP or Medicaid, including
outreach under agreements under Section 202 of Title II of the bills.144 HHS opposes
the exclusion from the 10% cap, arguing that it would permit unlimited expenditures
from a state’s federal SCHIP allotment for outreach to Indian families, and further
that such unlimited expenditures might be used for Medicaid outreach, which might
expand the federal reimbursements for Medicaid beyond normal expenditures.
142 Nearly identical language to §202 of Title II of the bills is included in §202(a) of H.R.
which recently passed the House and Senate and was cleared for the White House on
November 1, 2007. For more information on H.R. 3963, see CRS Report RL30473, State
Children’s Health Insurance Program (SCHIP): A Brief Overview, by Elicia J. Herz et al.
(updated November 14, 2007) and CRS Report RS22746, SCHIP: Differences Between H.R.
143 42 U.S.C. 1397ee(c)(2).
144 Nearly identical language to §203(a), Title II, of the bills is included in §202(b) of H.R.
See note 141, above.
Documentation of U.S. Citizenship for Medicaid. The SSA requires that
states, to receive federal reimbursement for Medicaid services, must obtain
satisfactory documentary evidence of citizenship and identity for all Medicaid
applicants who have declared they are U.S. citizens or nationals. SSA specifies
certain documents as satisfying this requirement to demonstrate citizenship and
identity, including U.S. passports, certain DHS naturalization and citizenship
certificates, state driver’s licenses for those states that require either proof of U.S.
citizenship or a verified social security number, or other documentation to be145
established by HHS regulations. Many Indian citizens, especially older ones,
because of their current and past remote locations and poverty, lack such standard
documents as birth certificates, Social Security cards, driver’s licenses, or passports.
Moreover, some Indian groups were divided by U.S. international borders, and their
descendant tribes may have members who are not U.S. citizens.
Section 203(d) of Title II of the bills amends SSA’s list of satisfactory
documentation, at SSA Section 1903(x), to add documents from a federally
recognized Indian tribe evidencing membership or enrollment in, or affiliation with,
that tribe. Under this amendment, for Medicaid citizenship and identity purposes,
such tribal membership documents would be treated as equivalent to U.S. passports,
the DHS certificates, and driver’s licenses from states that require proof of U.S.
citizenship or a verified social security number. For tribes that both are in states with
international borders and have members who are not U.S. citizens, Section 203(d)
requires HHS to issue regulations authorizing use of other documentation of U.S.
citizenship (including, if appropriate, tribal documents); until the regulations are
issued, members of such border tribes could use the same tribal documents as other
HHS opposes Section 203(d), arguing that the language is unworkable and that146
the HHS regulations implementing SSA Section 1903(x) took tribal members’
situation into account and included satisfactory tribal documentation of U.S.
citizenship. Some opponents question whether tribal membership documents provide
reliable proof of citizenship and identity and also resist counterfeiting. The HHS
regulations make tribal documents acceptable for purposes of identity (but not
citizenship) if they carry a photograph or other personal identifying information (e.g.,147
weight, height, race, age, sex). For a similar function — proving citizenship and
identity for border-crossing purposes — the Department of Homeland Security
(DHS) makes tribal documents acceptable for citizenship and identity if the
documents are designated by DHS as meeting DHS document security standards;
145 SSA, §1903(x), as added by the Deficit Reduction Act of 2005, P.L. 109-171, §6036, act
of February 8, 2006, 120 Stat. 4, 80, as amended; 42 U.S.C. 1396b(x). For more
information, see CRS Report RS22629, Medicaid Citizenship Documentation, by April
146 42 CFR 435.407.
147 42 CFR 435.407(e)(1)(vi).
DHS promises to work with tribes to develop, test, and produce tribal documents
compliant with its standards.148
Both S. 1200 and the House Health Subcommittee version of H.R. 1328 add
examples of tribal documentation to Section 203(d),149 but S. 1200, for border tribes
with non-citizen members, adds a requirement for interim final HHS regulations
within 90 days and also requires that, during the period before these regulations are
issued, tribal documents be accompanied by a signed attestation of U.S. citizenship
and a tribal certificate that the member was born in the United States.
Exemptions from Medicaid Cost-Sharing Charges and Payments.
Section 204(a) of Title II of the bills amends SSA Section 1916150 to exempt Indians
from deductibles, co-payments, coinsurance payments, premiums, enrollment fees,
or other cost-sharing charges under Medicaid for items and services provided by (or
on a CHS referral by) IHS, a tribe, TO, or UIO. No means test is required. S. 1200,
but not H.R. 1328, excludes from this exemption Indians who would only be eligible
for such programs and services under IHCIA Sections 102 and 103 (Indian health
professions recruitment and undergraduate scholarships) or IHCIA Title V (urban
Indian health programs); this would exclude those members of terminated,
state-recognized, or other non-federally-recognized tribes (or their children and
grandchildren), as well as Alaska Natives and persons considered Indian by HHS or
DOI, who are not otherwise eligible for IHS-funded health care services. Section
204(a) prohibits Medicaid reimbursements to IHS, a tribe, TO, UIO, or CHS provider
from being reduced by the amount of any cost-sharing otherwise due. S. 1200, but
not H.R. 1328, also specifies that Section 204(a) takes effect October 1, 2009.
Earlier versions of this provision (e.g., in S. 1057 as reported in the 109th Congress)
included SCHIP as well as Medicaid and did not limit the exemption to services and
items provided by or through IHS, a tribe, TO, or UIO.
Under current Medicaid law, most cost-sharing is nominal or prohibited for151
many categories of beneficiaries. The most recent estimate by the Congressional
Budget Office (CBO) for S. 1200 is that the cost-sharing exemption in Section 204(a)
would increase federal Medicaid spending by $5 million in FY2008 and $74 million
over FY2008-FY2017.152 (For the broader exemption in S. 1057, 109th Congress,
148 73 FR 18384-18418, April 3, 2008, esp. pp. 18397-18399, 18406, 18417-18418.
149 The House Health Subcommittee version of H.R. 1328 also adds a prohibition on
execution of §203(d) if the Children’s Health Insurance Program Reauthorization Act of
2007 — currently H.R. 3963 — is enacted first. H.R. 3963, at §211(b), amends SSA
Section 1903(x) using language identical to §203(d) of the House Health Subcommittee
version of H.R. 1328. See also note 141, above.
150 42 U.S.C. 1396o.
151 For discussion of cost-sharing under Medicaid, see CRS Report RS22578, Medicaid
Cost-Sharing Under the Deficit Reduction Act of 2005 (DRA), by Elicia J. Herz, and CRS
Report RL33202, Medicaid: A Primer, by Elicia J. Herz.
152 U.S. Congressional Budget Office, “Cost Estimate: S. 1200, Indian Health Care
Improvement Act Amendments of 2007, As Ordered Reported by the Senate Committee on
CBO estimated its cost would have increased Medicaid and SCHIP spending by $26
million in FY2007 and by $357 million over the period FY2007-FY2016.153)
Exclusion of Property from Medicaid and SCHIP Eligibility
Determinations. Section 204(b) of Title II of the bills amends SSA Section 1902
to exclude certain Indian property from being considered in determining Medicaid
or SCHIP eligibility. Property to be excluded in determining eligibility would
include all real property and improvements, in trust or restricted status,154 located
within current Indian reservations, former reservations in Oklahoma (which may
cover almost all of the state except the Panhandle and perhaps certain lands in
southwestern Oklahoma), Alaska Native regions established under the Alaska Native
Claims Settlement Act155 (which cover all of Alaska), and BIA-approved Indian
allotments on or near reservations. For members of a federally recognized tribe that
is not covered by the preceding sentence, any property, whether in trust or restricted
status or not, located within the most recent boundaries of a prior federal reservation
is excluded. Also excluded are ownership interests in income from natural-resource
properties when the income results from exercising federally protected rights, and
interests or use rights in property that is of “unique religious, spiritual, traditional, or
cultural significance” or that is used for subsistence or to support traditional
lifestyles, according to tribal law or custom. Section 204(b) contains a definition of
“Indian” (by reference to the ISDEAA definition) that is deleted in the House Health
Subcommittee version of H.R. 1328.
Current Medicaid law provides numerous eligibility categories, for some of
which states are required to apply asset or property tests, and for some of which such
tests are optional for states. For many of the asset tests, states may choose different
Indian Affairs on May 10, 2007,” revised September 11, 2007, pp. 5-6. Earlier, CBO
estimated the FY2008 cost as $6 million and the FY2008-FY2017 cost as $82 million; see
U.S. Congressional Budget Office, “Cost Estimate: H.R. 1328, Indian Health Care
Improvement Act Amendments of 2007, As Ordered Reported by the House Committee on
Natural Resources on April 25, 2007,” June 8, 2007 (pp. 5-6); and U.S. Congressional
Budget Office, “Cost Estimate: S. 1200, Indian Health Care Improvement Act Amendments
of 2007, As Ordered Reported by the Senate Committee on Indian Affairs on May 10,
153 U.S. Congressional Budget Office, “Cost Estimate: S. 1057, Indian Health Care
Improvement Act Amendments of 2005, As Reported by the Senate Committee on Indian
Affairs on March 16, 2006,” April 26, 2006, pp. 5-6.
154 “Trust property” means property owned by the federal government in trust for an Indian
tribe or individual. “Restricted property” means property owned by an Indian tribe or
individual subject to federal restrictions on sale or mortgage or other encumbrance. See 25
155 P.L. 92-203, act of December 18, 1971, 85 Stat. 688, as amended; 43 U.S.C., Chap. 33.
The act created regional, village, and other Native corporations in which member Alaska
Natives owned stock. Together, the regions assigned by the act to each of the 12 regional
corporations cover the entire state. Native corporation stock is inalienable unless the Native
corporation’s stockholders vote otherwise.
guidelines in counting or disregarding assets.156 One guideline frequently used by
states, that for Supplemental Security Income,157 excludes trust property of Indians
in (or descended from) federally recognized tribes158 and Alaska Natives’ stock in
Native regional or village corporations.159 To some extent, then, Indian trust property
and similar Alaska Native property may already be excluded in defining Medicaid
eligibility, at least in some states. Section 204(b)’s provision would expand the types
of property excluded from Medicaid eligibility tests and require all states to exclude
such property. CBO’s cost estimates have not addressed any costs connected to the
Exemption of Entities from State or Local Licensing. Section 205 of
Title II of the bills — exempting IHS, tribal, TO, and UIO entities from state or local
licensing to be eligible for reimbursement from federal health programs — is nearly
identical to IHCIA Title IV, Section 408. See the discussion in “Exemption of
Entities from State or Local Licensing,” above. The House Health Subcommittee
version of H.R. 1328 deletes both this section and IHCIA Section 408.
Required Medicaid Consultations. Section 206 of Title II of the bills
(Section 205 in the Health Subcommittee version of H.R. 1328) requires the
Secretary to maintain an existing national Tribal Technical Advisory Group within
CMS, in accordance with a charter dated September 30, 2003, with IHS and UIO as
well as tribal and TO representatives. No other state or entity has such access given
by statute. Section 206 also authorizes a state receiving Medicaid or SCHIP
payments to establish a consultation process with IHPs and UIOs that provide health
care for which Medicaid assistance is available within that state. The state should
consult regularly with these federal and Indian entities, especially before it submits
any Medicaid plan amendments, waiver requests, or proposals for demonstration
projects that are likely to have a direct effect on IHPs or UIOs. S. 1200, but not H.R.
Safe Harbors from Criminal Prohibition of Remunerations. Current
SSA, Title XI, has an anti-kickback provision that authorizes criminal penalties for
soliciting or receiving remuneration in return for either referrals for services or
purchases, leases, or orders for goods, facilities, services, or items, when the payment
for the services, items, etc., may be made under a federal health care program.160 The
156 For further discussion of Medicaid eligibility asset tests, see CRS Report RL33019,
Medicaid Eligibility for Adults and Children, by Jean Hearne, and CRS Report RL33593,
Medicaid Coverage for Long-Term Care: Eligibility, Asset Transfers, and Estate Recovery,
by Julie Stone.
157 Social Security Act, Title XVI; 42 U.S.C., Chap. 7, Subch. XVI, §§1381 et seq.
158 20 CFR 416.1234.
159 42 U.S.C. 1382b(a)(5). These are the two major types corporations established under the
Alaska Native Claims Settlement Act.
160 42 U.S.C. 1320a-7b.
provision allows for a number of exceptions,161 and the HHS Secretary must annually
solicit proposals for additions or amendments to such “safe harbors” (i.e., payments
not considered kickbacks).162
Section 207(b) of Title II of S. 1200 and H.R. 1328 (as reported) amends the
SSA anti-kickback provision to add safe harbors from criminal prosecution for
certain transactions (1) among IHPs, tribes, TOs, and UIOs (covered are transfers of
inventory or supplies, staff, waiver of premiums or cost sharing, and the collection,
transport, analysis, or interpretation of diagnostic specimens or test data); (2) among
patients and IHPs, tribes, TOs, and UIOs (covered are transfers for expenditures for
patient transportation, patient or family housing, escorts, or payment of cost sharing);
(3) between an IHP, tribe, TO, or UIO under a contract, or between IHS and an
outside health care provider under a CHS contract (covered are transfers of anything
of value, provided the transfer is not tied to referrals or other business and is limited
to fair market value); and (4) any other transfer of anything of value involving an
IHP, tribe, TO, UIO, or patient that the HHS Secretary, in consultation with the U.S.
Attorney General, determines is appropriate.
According to its supporters, the intent of the safe harbor provision is “to
eliminate any ambiguity about whether tribal health programs can continue to share
resources after assuming the programs from IHS. Such interactions are an integral
part of the Indian health system funded by IHS and are essential to maintaining
continuity of care for patients and efficient, cost effective operations.”163 HHS
opposes this safe harbor provision, stating that it does not know what problems the
provision is supposed to address, that statutory exceptions may undermine the
criminal prohibition, that lack of a statutory safe harbor may not make a particular
transaction or arrangement illegal, and that current law authorizes the HHS Secretary
to create safe harbors through regulations. The House Health Subcommittee version
of H.R. 1328 deletes the language in this section of Title II of the bills, substituting
instead (as Section 206 of the Health Subcommittee version) a requirement that the
HHS Secretary, through the HHS Inspector General, solicit a proposal for safe
harbors related to IHP and UIO health care items and services.
Indians and Medicaid and SCHIP Managed Care Organizations. The
SSA, Title XIX, authorizes states to elect to provide Medicaid services through
Medicaid managed care organizations or entities (MCEs), in which Medicaid164
beneficiaries enroll to receive Medicaid services. Section 208 of Title II of the
bills (Section 207 of the House Health Subcommittee version of H.R. 1328) makes
two sets of changes regarding Indian health entities and Medicaid managed care.
161 See 42 U.S.C. 1320a-7b(b)(3) and 42 CFR 1001.952.
162 42 U.S.C. 1320a-7d.
163 Testimony of Myra M. Munson, in U.S. Congress, Senate Committee on Indian Affairs,
Reauthorization of the Indian Health Care Improvement Act, hearing on S. 556, 108th Cong.,st
164 For a discussion of Medicaid managed care, see CRS Report RL33711, Medicaid
Managed Care: An Overview and Key Issues for Congress, by Elicia J. Herz.
First, Section 208 adds Medicaid and SCHIP rules applying to all Medicaid
MCEs. The rules require non-Indian Medicaid MCEs to allow IHS-eligible Indian
enrollees to choose an “Indian health care provider” (defined as an IHP or UIO) as
their primary care provider. The rules also place additional requirements on an MCE
with a “significant percentage” of enrollees who are Indian; the additional
requirements concern such issues as the number of Indian health care providers in the
MCE’s network, rates and promptness of payments to Indian health care providers
(whether participating in the MCE network or not), exemption of Indian health care
providers from compliance with an MCE requirement if it conflicted with a statute
or regulation, satisfaction of Indian enrollees’ claim-submission requirements by
submission of claims by Indian health care providers, and use of FTCA coverage to
allow an Indian health care provider to meet requirements for medical malpractice
insurance. The House Health Subcommittee version of H.R. 1328 drops the
Medicaid compliance exemption, claims submission, and malpractice coverage
provisions, and also drops the requirement that MCEs subject to the remaining rules
have a significant percentage of Indian enrollees.
Second, Section 208 adds rules regarding Indian Medicaid MCEs. It requires
that a state offer to make agreements to allow an Indian Medicaid MCE (as defined
in the section) to serve as the Medicaid or SCHIP MCE for eligible Indians, if (1) the
state has elected to provide Medicaid services through MCEs and (2) an Indian health
care provider (funded wholly or partly by IHS) or a consortium of IHPs or UIOs has
established an Indian Medicaid MCE that meets the relevant required quality
standards. Section 208 establishes special rules for these Indian Medicaid MCEs,
covering such areas as enrollment restrictions by Indian Medicaid MCEs or states,
default enrollment of Indians in Indian Medicaid MCEs, application of Medicaid
solvency standards by HHS instead of the state, status of the Indian Medicaid MCE
as a “public entity” under Medicaid law (hence exemption from certain state solvency
standards and risk-related licensing requirements), waiver of certain requirements for
patients’ advance directives, and modification of MCE marketing and information
rules to allow culturally appropriate and understandable materials. The House Health
Subcommittee version of H.R. 1328 deletes the requirement for states to offer to
make agreements with Indian Medicaid MCEs, and drops all the special rules for
Indian Medicaid MCEs except the rule regarding enrollment restrictions.
S. 1200, but not H.R. 1328, specifies that Section 208 takes effect October 1,
HHS worked with Indian health care proponents on many of Section 208’s
provisions, but opposes requiring states to take the actions envisioned in Section 208
and has other, more specific objections.
Annual Report on Indian SSA Health Program Beneficiaries. Section
209 of Title II of S. 1200 and H.R. 1328 (as reported) amends SSA to require the
HHS Secretary, acting through CMS and IHS, to report annually to Congress on the
enrollment and health status of Indians receiving items or services under SSA health
benefits programs during the previous year. Among the subjects to be covered would
be the number of Indians receiving benefits under each SSA health program, the
health status of such Indians (disaggregated by specific diseases or conditions), the
number of Indians who receive benefits from both IHS and SSA health programs, and
the status of IHP and UIO facilities’ compliance with CMS conditions and
requirements. HHS opposes this provision, stating that neither CMS nor IHS has the
data and arguing that collecting the data would be burdensome. The House Health
Subcommittee version of H.R. 1328 (in Section 208 of this version) drops the report
on facilities’ compliance with CMS requirements; moves to IHCIA Title VIII the
requirement for information on Indians who use CMS programs, their use of IHS,
and their health status; and adds a requirement that CMS and IHS collect data on
provision of CMS services to Indians in a way that provides for the Title VIII report.
Other Legislative Issues
Congress has also considered other legislative initiatives that have a direct
impact on Indian health.
Contract Support Costs. Under the ISDEAA, IHS pays annual contract
support costs to a tribe to cover the tribe’s expenses for administering IHS programs
under a self-determination contract (ISDEAA Title I) or a self-governance compact
(ISDEAA Title V). Contract support costs are separate from direct program
operating costs. They include pre-award costs (such as planning), one-time start-up
costs (such as office-equipment purchases), direct costs (such as unemployment taxes
on program salaries or training required for program personnel certification), and
indirect costs (overhead costs shared with other programs, such as financial
management, data processing, utilities, and janitorial services).165 The amount of
each tribe’s contract support costs for IHS programs is negotiated between the tribe
and IHS. The ISDEAA, however, makes the funding of contract support costs166
dependent on “the availability of appropriations.”
Funding has been insufficient to cover tribal contract support costs. While
appropriations for IHS contract support costs have risen over time (see Table 4
above), they have seldom covered 100% of the total contract support costs negotiated
with tribes.167 Moreover, the expenses that contract support costs are to pay have also
gone up, because more tribes are electing to operate health delivery services, the total
amount of program dollars contracted by the tribes has increased, and administrative168
costs have risen.
When tribes’ contract support costs are not fully funded through appropriations,
the tribes must either use program funds to make up the difference or forego the
administrative support. Contracting and compacting tribes argue that usage of
program funds for contract support costs means less health treatment can be offered
at IHS-funded facilities. They have argued further that federal failure to pay contract
165 U.S. General Accounting Office, Indian Self-Determination Act: Shortfalls in Indian
Contract Support Costs Need to Be Addressed, Report to Congressional Requestors,
GAO/RCED-99-150, June 1999, Washington, 1999. See Table 1.1, p. 18.
166 ISDEAA, §106(b); 25 U.S.C. 450j-1(b).
167 GAO, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs, pp.
168 Ibid., p. 3.
support costs is a breach of federal contract law. The Cherokee Nation of Oklahoma
and the Duck Valley Shoshone-Paiute Tribes of Nevada filed suits against the United
States in the late 1990s over IHS failure to fully fund the tribe’s contract support
costs, and eventually won their case before the U.S. Supreme Court.169
The tribes’ victory in court does not appear, however, to fix the problem of the
underfunding of contract support costs. The Supreme Court noted that the entire IHS
appropriation from which contract support costs are drawn is available to pay the
costs, but only if the appropriations act does not cap the amount appropriated for
contract support costs.170 Even before the Court decision, however, from FY1998 on,
Congress began including language in appropriation acts that explicitly limited
amounts for IHS contract support costs.
The main proposals for fully funding contract support costs — besides
increasing the appropriations — involve making them an entitlement. Proponents
of entitlement argue that contracting and compacting tribes are operating federal
programs and carrying out federal responsibilities and that tribes should not have to
use tribal financial resources to subsidize federal contract support costs.171 Critics
warn the proposal would be extremely expensive and argue that making an
entitlement for one IHS funding source would jeopardize funding for other programs.
Bills introduced in the 106th and 108th Congresses (H.R. 4148 and S. 2172,
respectively) would have made these costs an entitlement for IHS and BIA contracts
and compacts, but neither bill was enacted.
Substance Abuse and Mental Health Program Consolidation. Indian
communities are plagued by mental health problems and alcohol and substance
abuse, at rates generally far greater than those of the general population. Alcohol
continues to be an important risk factor associated with the top three killers of AI/AN172
youth — accidents, suicide, and homicide. In fact, in 2002, alcohol was the
primary abuse substance over illicit drugs among all AI/AN.173 Compared to the
169 Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, WL464860 (March 1, 2005). For
further analysis of this case, see CRS Report RL32681, Indian Self-Determination and
Education Assistance Act Contracts and Cherokee Nation of Oklahoma v. Leavitt: Agency
Discretion to Fund Contract Support Costs, by Nathan Brooks.
170 Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, WL464860 (2005) (slip opinion
171 U.S. Congress, House Committee on Resources, Tribal Contract Support Cost Technical
Amendments of 2000, report to accompany H.R. 4148, 106th Cong., 2nd sess., H.Rept. 106-
172 U.S. Congress, Senate Committee on Indian Affairs, To Authorize the Integration and
Consolidation of Alcohol and Substance Abuse Programs and Services Provided by Indianth
Tribal Governments, and for Other Purposes, a report to accompany S. 285, 108 Cong.,st
1 sess., S.Rept. 108-75 (Washington: GPO, 2003), p. 2 (hereafter cited as Senate
Committee on Indian Affairs, Alcohol and Substance Abuse Programs).
173 “Substance Abuse Treatment Admissions among American Indians and Alaska Natives:
Department of Health and Human Services, Substance Abuse and Mental Health Services
average American, AI/AN are 6.5 times more likely to die from alcoholism-related
diseases or accidents (see Table 3 above). According to a 2003 Senate Committee
on Indian Affairs report, mental health and social problems are associated with more
than one-third of the demands made on Indian health facilities for services.174 An
HHS report states that, although little evidence is available, the existing data suggest
that AI/AN youth and adults suffer a disproportionate burden of mental health175
problems when compared with other ethnic and racial groups in the United States.
Recognizing that there is significant co-morbidity of mental and substance abuse
disorders, particularly alcohol abuse, the federal government offers several disparate
mental health and substance abuse prevention and treatment programs for which
Indian tribes and tribal health organizations are eligible to receive funding.
According to the 2003 Senate Committee on Indian Affairs report, however, the
funding available for the operation of these programs is generally very small.176
According to the Senate Committee report, when Indian tribes and tribal
organizations are able to access program funding from several different sources, the
amounts are generally so meager, and the auditing and reporting requirements so
onerous, that it is simply not cost effective to attempt to operate a program which
combines multiple sources of available funding. The Senate Committee report also
stated that an HHS study identified those department programs that could be
consolidated by tribes into a self-governance compact, or that would be useful to a
self-governance compact, but could not be consolidated due to statutory177
Legislation was introduced in the 106th (S. 1507), 107th (S. 210), and 108th (S.
285) Congresses to allow Indian tribes or TOs operating federal substance abuse and
mental health programs to consolidate them into a single program for administrative
purposes. The new IHCIA Title VII in S. 1200 and H.R. 1328 (110th Congress)
emphasizes coordination of behavioral health care, but does not authorize
consolidation of federal program funding. Separate legislation may be introduced to
authorize tribal consolidation of federal substance abuse and mental health funding.
Administration, Office of Applied Studies, February 11, 2005), pp. 1-2; available at
174 Senate Committee on Indian Affairs, Alcohol and Substance Abuse Programs, p. 2.
175 U.S. Department of Health and Human Services, Mental Health: Culture, Race, and
Ethnicity — A Supplement to Mental Health: A Report of the Surgeon General (Rockville,
MD: U.S. Department of Health and Human Services, Substance Abuse and Mental Health
Services Administration, Center for Mental Health Services, 2001), p. 96; available at
176 Senate Committee on Indian Affairs, Alcohol and Substance Abuse Programs, p. 2.
Appendix A. Brief History of
Federal Indian Health Services
From 1789 to 1849, the Department of War was charged by Congress with
handling Indian affairs (1 Stat. 49), so early federal health services to Indians were
most likely to be provided by military doctors and were probably chiefly to prevent
the spread of infectious diseases. Congressional appropriations for the War
Department in this period did not mention Indian health care. In addition to whatever
the War Department spent, some of the funds the federal government provided to
missionaries for educating Indians may have been used for medical care of Indian
The earliest statutory authorization (and appropriation) explicitly for federal
Indian health care was the act of May 5,1832 (4 Stat. 514), which authorized Indian
agents to employ local or U.S. Army doctors to provide smallpox vaccinations to
Indians, and appropriated $12,000 for the purpose. Additional appropriations for
smallpox vaccinations were made in 1839 (5 Stat. 328), 1853 (10 Stat. 226), and
annually from 1860 to 1915.
The earliest Indian treaty providing for health services was signed on September
15, 1832 (7 Stat. 370), with the Winnebago of Wisconsin; it included funding for two
physicians for 27 years as part of the compensation for a land cession. Of the
approximately 210 treaties made with Indian tribes after this 1832 treaty until 1871
(when Congress ended Indian treaty-making), about 44 treaties committed the federal
government to provide the signatory tribe(s) a physician, a hospital, medicines, or
vaccine, or some combination of these, usually for a delimited period of time.
After 1849, when Indian affairs were transferred from the War Department to
the new Department of the Interior (9 Stat. 395), federal executive activities
regarding Indian health care fell under civilian rather than military authority. As the
placement of Indian tribes on reservations accelerated in the second half of the 19th
century, the federal government gradually became aware of the need for medical care
on reservations. As noted, Congress made annual appropriations for Indian
vaccination against smallpox from 1860 to 1915. By the 1860s Congress was also
making appropriations for doctors and medicine for some agencies, and the BIA was
appointing physicians, although only at some agencies. The number of medical
employees in BIA agencies and schools increased from at least 12 in 1865 to 86 in
1897, and by 1888 there were four BIA hospitals. By 1884 the BIA published
regulations specifying physicians’ responsibilities. Except for 1873-1877, however,
BIA had no organized medical division. It was not until 1908 that Commissioner of
Indian Affairs first appointed a chief medical supervisor.
Critics and studies inside and outside the BIA pointed out the severity of health
problems, especially tuberculosis, in Indian schools and reservations. Between 1900
and 1911, the number of BIA hospitals and sanatoria jumped from five to 50.
In 1910 Congress enacted its first appropriation for general Indian medical
needs (36 Stat. 271), as opposed to appropriations for specific reservations or
diseases, for $40,000. By 1920 Congress had increased this overall Indian health
appropriation to $375,000, and had also added appropriations specifically for hospital
construction and operation and for general medical treatment of Indians (and, for a
few years, “correction of sanitary defects in Indian homes”).
In 1921, Congress passed the Snyder Act (P.L. 67-85), a general authorization
of appropriations for Indian health services, without time or dollar limitations (see
“Statutory Authority,” above). Despite these actions and further appropriations
increases, criticism of BIA health services continued, including suggestions to
transfer BIA medical services to the Public Health Service (PHS). In 1926 a PHS
surgeon was assigned to supervise the BIA medical division. In 1929 Congress
authorized the Secretary of the Interior to permit state agents to inspect AI/AN health
and education conditions and to enforce sanitation and quarantine regulations (P.L.
70-760), and in 1934, through the Johnson-O’Malley Act (P.L. 73-167), Congress
gave the BIA authority to contract for medical services from states, local
governments, and private organizations.
Indian health problems were still severe, however. In 1955, under authority of
the Transfer Act of 1954 (P.L. 83-568), the BIA’s Indian health programs were
transferred to the PHS in the then-new Department of Health, Education and Welfare,
now HHS (see “Statutory Authority,” above). Indian Health Service appropriations
increased markedly after the transfer,178 and Indians’ health status improved greatly
in the next 20 years. It still lagged behind that of the American population, however,
and in 1976 Congress enacted the Indian Health Care Improvement Act (P.L. 94-
437), authorizing new programs and IHS access to Medicaid and Medicare funds (see
“Statutory Authority”). A year earlier, Congress had enacted the Indian Self-
Determination and Education Assistance Act (P.L. 93-638), whose authorization of
self-determination contracts and, through amendments, self-governance compacts has
led to tribal operation of a majority of IHS facilities.
Kappler, Charles J., comp. Indian Affairs: Laws and Treaties, 7 vols. (Washington:
Pfefferbaum, Betty, et al. “Learning How to Heal: An Analysis of the History,
Policy, and Framework of Indian Health Care,” American Indian Law Review,
vol. 20, no. 2, 1995-1996, pp. 365-397.
Prucha, Francis Paul. The Great Father: The United States Government and the
American Indians (Lincoln: University of Nebraska Press, 1984).
178 IHS’s transfer to HEW became effective at the beginning of FY1956. Jurisdiction over
IHS appropriations was transferred from the Interior appropriations subcommittees to the
Labor-HEW subcommittees for FY1956-FY1961, but for FY1962 was transferred back to
the Interior appropriations subcommittees and has remained there ever since. See U.S.
Congress, House Committee on Appropriations, Department of the Interior and Relatedthst
Agencies Appropriations Bill, 1962, 87 Cong., 1 sess., H.Rept. 87-233 (Washington: GPO,
Schmeckebier, Laurence F. The Office of Indian Affairs: Its History, Activities, and
Organization (Baltimore: Johns Hopkins Press, 1927).
Stuart, Paul. The Indian Office: Growth and Development of an American
Institution, 1865-1900 (Ann Arbor, MI: UMI Research Press, 1978).
—— Nations Within a Nation, Historical Statistics of American Indians (New York,
Greenwood Press, 1987).
United States, United States Statutes At Large (Boston: Little, Brown, 1851-1869,
and Washington: GPO, 1875-present).
U.S. American Indian Policy Review Commission, Task Force Six: Indian Health,
Report on Indian Health. Final Report to the American Indian Policy Review
Commission, July 1976 (Washington: GPO, 1978).
U.S. Congress. House of Representatives. Committee on Energy and Commerce.
Subcommittee on Health and the Environment. Indian Health Care: An
Overview of the Federal Government’s Role, 98th Cong., 2nd sess. H.Prt. 98-Y,
April 1984 (Washington: GPO, 1984).
United States Statutes At Large, in the Library of Congress’s American Memory site,
“A Century of Lawmaking For a New Nation: U.S. Congressional Documents
and Debates,” at [http://memory.loc.gov/ammem/amlaw/lwsl.html].
Kappler’s Indian Affairs: Laws and Treaties, at [http://digital.library.okstate.edu/