On Monday, March 25, the U.S. Supreme Court heard oral arguments for a case titled Becerra v. San Carlos Apache Tribe, which revolves around questions of funding for tribally-run health care from the federal Indian Health Service (IHS). The case consolidates arguments from two previous lower circuit cases, titled Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe.
Some tribal members go to IHS-run health care programs and then those programs bill Medicare, Medicaid, or third-party private insurance for those services. To enhance tribal sovereignty, Congress passed the Indian Self-Determination and Education Assistance Act (ISDA) in 1975, which now allows tribes themselves to administer healthcare programs themselves rather than go through the IHS.
Roughly 60 percent of tribal nations in the U.S. now contract with the federal government to administer their own health care programs. The IHS provides the same amount of funding directly to tribes that the agency would have otherwise spent if it had administered the programs itself. Since tribes often lack the cost-saving legal advantages and connections, the federal government is required to provide what are known as contract support costs, which cover the additional costs tribes undertake to administer the programs and interface with third-party insurers themselves.
In a nutshell, the Supreme Court case asks whether or not tribes should receive reimbursement for these so-called “contract support costs,” specifically when they are billing insurers like Medicare or Medicaid directly and then retain the resulting third-party revenue, which Congress has dictated must be spent on healthcare.
Attorney Adam Unikowsky represented the Northern Arapaho Tribe. He argued to the Supreme Court that these costs – and therefore their reimbursements – are in-line with the goal of tribes providing health care for their own communities.
“Such costs are recoverable if they're incurred in connection with the operation of the federal program function, service or activity pursuant to the contract. The disputed costs in this case meet that description,” he said.
Attorney Caroline A. Flynn from the Department of Justice represented the U.S. government. She said the use of the money is incongruent with how it’s been allocated in the past.
“What the tribes are arguing here is that [the Indian Self-Determination Act] also obligates IHS to subsidize the tribes’ expenditures of funds that they don't receive from IHS under the contract. but rather collect from third parties as supplemental revenue. Statutory text and context refute that theory, which would upend how the statute has been administered for thirty-five years,” she said.
Unikowsky said the costs should still be covered under the government’s obligation, through the ISDA, to support tribal sovereignty.
“Ruling in the tribe’s favor would further the purposes of the ISDA by promoting tribal self-determination and ensuring that adequate resources are available for health care in chronically-underserved communities,” he said.
The attorney for the U.S. government said that the IHS’ current contract support cost obligation budget is roughly $1 billion per year and that its total funding is about $8 billion. She said if contract support costs drastically increase for the tribes that are running their own health care programs, that might take funds from tribes choosing to work directly with the IHS.
“We believe there's a real danger that that funding is going to come from the other 40 percent of the IHS budget, which is providing direct services to tribes that decide not to enter into these contracts,” Flynn said.
The Supreme Court will likely decide on the case by the end of June.
