Tribes react to IHS copay position

Rob Capriccioso
6/27/08

Leaders and health officials say they feel they've been misled

WASHINGTON - Several tribal officials are opposed to a decision being contemplated by IHS officials to stop funding for tribes that charge eligible beneficiaries for portions of health services or medicine they receive at IHS-funded facilities.

Indian Country Today reported recently that the federal agency has been holding consultations at IHS regional offices nationwide since April in an attempt to determine the number of tribes conducting the practice.

Robert McSwain, the newly confirmed director of IHS, has stated that the agency, under its interpretation of federal law, does not have the authority to partner with tribes that conduct the practice. Ronald B. Demaray, acting director of the agency's Office of Tribal Programs, said, too, that McSwain is contemplating terminating relationships with tribes that are doing so.

IHS is largely concerned that Congress could view widespread tribal copay collection as a reason to further limit the agency' s already tight budget.

Many tribes are not swayed that their sovereignty should take a backseat to IHS' position - and some are downright angry that IHS didn't explicitly spell out its reasons for consultation, at least in some instances. Since the consultation process commenced, tribal and health officials representing dozens of tribes have sent letters to IHS officials, explaining their concerns.

Arch Super, chairman of the Karuk Tribe of California, wrote in a recent letter to IHS that his tribe is ''resolute in regards to issues of trust to tribes by the U.S. government.'' He believes that self-governing tribes should have the option to bill patients for services, especially since IHS ''has never been able to appropriate sufficient funds'' to meet the health needs of his tribe.

He said in his letter that Indian patients will end up paying with their health if his tribe is not allowed to charge copays for essential health services, such as pharmaceuticals.

Joe Finkbonner, director of the Northwest Portland Area Indian Health Board, also recently expressed his concerns on behalf of 43 tribes. He said in a letter to IHS that many tribes have not been fully briefed on the agency's position, and he felt that the agency had a ''hidden agenda'' because officials in his area conducted consultations without expressly noting that the agency was considering stopping funds for tribes that collect copays from eligible beneficiaries.

Jim Roberts, a policy analyst with the NPAIHB, elaborated on Finkbonner's concern.

''The agency is supposed to conduct consultations when it makes a decision that would change an existing policy, adopt a new policy, or remove a current practice. In the course of the consultation that was held [in the Portland area], it was conveyed that a decision hadn't been made on this issue.''

He added, ''The agency, we now know, seems to have had an ulterior motive, or may have already made a pre-existing decision and perhaps was just getting a pulse on how this would play out in Indian country.''

Roberts noted that some tribal officials were hesitant to provide input during the unclearly defined Portland area consultation, since they felt like they might be offering comment ''on a moving target that could come back to negatively impact them.''

Finkbonner also said in his letter that several tribal officials feel that if IHS ceases funding for tribes requesting copays, the agency will find itself at odds with a legal precedent set in a recent court case involving the Susanville Rancheria of California.

In that case, which IHS lost earlier this year and decided not to appeal, the tribe won the legal right to require patient copays from certain members for certain services.

Demaray previously told ICT that the agency's position is that the decision applies only to the Eastern District of California and the Susanville Rancheria. In other words, IHS officials do not view the decision as a nationwide precedent to allow tribes with IHS contracts to collect copays.

But Finkbonner indicated in his letter that the undisputed court resolution in the Susanville Rancheria case is evidence that IHS has misinterpreted federal law - and thus may end up treading on tribal sovereignty with other tribes if agency officials decide to stop their funding.

Steven Moe, a lawyer for the Hoopa Valley Indian Reservation, also recently provided a statement to the IHS California area office, which paid special attention to the Susanville Rancheria case.

''The federal district court's decision in Susanville v. Leavitt confirms a fundamental self-governance principle: Tribes must have control of health care revenues,'' Moe said in his statement. ''This includes the option to ask patients to invest in their health care using a sliding scale, a copay or other mechanism.''

Moe noted, too, that ''the federal bureaucracy is constrained by many limitations and inefficiencies.''

Many tribal leaders queried said the main limitation regarding IHS is that its funding has been vastly restricted by Congress and the White House.

The IHS area consultations were expected to be completed by the end of June. A decision on whether the agency will stop funding for certain tribes could come as early as October.

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