Urban Indians let down by IHS advance appropriations response

'The federal government continues to prove that the safety of Native lives is not a concern.'

U.S. Department of Health and Human Services Secretary Xavier Becerra and IHS Director Roselyn Tso. (courtesy HHS)

WASHINGTON — Native health advocates are disappointed by a response from the Indian Health Service (IHS) to their request for the agency to allow urban Indian organizations (UIOs) to receive timely federal funding to address Indigenous health needs.

Given the looming possibility of a federal government shutdown in the near future over whether the U.S. Congress will raise the national debt limit ceiling, the issue has become all the more pressing.

If a shutdown happens, UIOs and other tribal health facilities could be immediately impacted because some of their federal funding would cease. Indian health needs would not cease, however, nor would the federal trust responsibility meant to account for those needs.

The National Council of Urban Indian Health (NCUIH) advocacy organization had been asking the Biden administration’s IHS since Sepember to utilize already on-the-books policy to help secure yearly advance appropriations for UIOs in an effort to avoid such scenarios altogether.

Advance appropriations for IHS-funded tribal and urban facilities have yet to pass legislatively, so tribal health advocates have been attempting an Executive Branch solution.

But IHS Director Roselyn Tso says that such an idea is a no-go. The NCUIH shared her full letter, dated Nov. 16, below:

Dear Ms. Crevier:

I am responding to your September 23, 2022, letter, regarding an exception apportionment for Urban Indian Organizations (UIOs). The Indian Health Service (IHS) is committed to hearing concerns about the effect of the Fiscal Year (FY) 2023 Continuing Resolution on UIOs.

Urban Indian Organizations are a critical component of the Indian health care system. The Indian Health Service’s top priority is to avoid disruptions in operations and to lift the unnecessary administrative burden that comes with Continuing Resolutions (CRs), sequestration, and government shutdowns for the entire Indian health system, including UIOs.

In your letter, you highlight actions that the current and prior Administrations implemented to limit budgetary uncertainty and ensure continuity of operations for IHS and Tribal Health Programs during government shutdowns. You also request that the IHS seek an exception apportionment under the “safety of human life” justification to provide UIOs with funding above the pro-rata amount appropriated under a CR.

An exception apportionment describes a type of account-specific apportionment that can be issued for operations under a CR [continuing resolution] in lieu of the Office of Management and Budget (OMB) issued automatic apportionment, which provides the pro-rata funding level available under a CR. Exception apportionments must be requested and approved by OMB each year. The IHS has received an exception apportionment for a portion of its funding since FY 2020.

The exception apportionment allows the IHS to provide the full year Secretarial Amount to Tribal Health Programs with Indian Self-Determination and Education Assistance Act (ISDEAA) contracts and compacts with performance periods that start under the period of a given CR, as opposed to the pro-rata funding amount that is otherwise available under a CR. The exception apportionment does not apply to IHS-operated health programs or UIOs. It is important to note that the IHS exception apportionment does not fall under the “safety of human life” exception for apportionments.

The OMB Circular No. A-11: Preparation, Submission, and Execution of the Budget, the basis for a Safety of Human Life and Protection of Federal Property (“life and safety”) establishes that exception apportionments may be granted in extraordinary circumstances where the safety of human life or protection of Federal property is a concern during a government-wide lapse of appropriations.

Instead, the IHS exception apportionment authority is rooted in the unique nature of ISDEAA funding agreements, and the timing of such funding agreements. This is why the exception apportionment only applies to Tribal Health Programs whose ISDEAA agreements have a performance period that begins during the period of the CR. Urban Indian Organizations receive their funding through Federal Acquisition Regulation (FAR) contracts, consistent with Title V of the Indian Health Care Improvement Act, and therefore are not eligible for funding above the pro-rata amount available during a CR under this exception apportionment authority.

Your letter references “excepted programs” under the Antideficiency Act (ADA) during the 2018 – 2019 government shutdown. Indian Health Service operated health care programs are “excepted” during a government shutdown, which means that IHS-operated health programs must continue to provide direct health care services in the absence of an appropriation. The exception under a government shutdown does not provide additional funding during the period of a government shutdown. This exception only applies to Federal functions, and does not apply to Tribal Health Programs. Under this exception, IHS-operated health programs continue to provide services in the absence of appropriations, even if the health programs are unable to pay health care professionals and related staff, pay invoices for referred care, and purchase supplies and medicines.

The criteria for safety of human life excepted programs under a government shutdown is not always the same as the criteria for receiving a safety of human life exception apportionment. Programs that are excepted for safety of human life reasons under a government shutdown generally do not receive exception apportionments. For example, although IHS-operated health programs are excepted during a government shutdown and must continue providing direct health care services in the absence of appropriations, IHS-operated health programs do not receive an exception apportionment. The safety of human life exception for apportionment purposes is used in very narrow circumstances.

The exception apportionment authority provides a partial solution to the unpredictability of Federal appropriations for the IHS, and is likely the extent of what the Agency can achieve within existing authorities. While an exception apportionment does resolve some of the unpredictability in the IHS budget for some Tribal Health Programs, it is not a full solution to the challenges the IHS faces as a result of continuing resolutions. The exception apportionment also does nothing to prevent the negative consequences of government shutdowns for IHS-operated health programs and UIOs; it only prevents those consequences for Tribal Health Programs in some circumstances. The consequences of a government shutdown directly impact the ability of IHS-operated health programs, Tribal Health Programs, and UIOs to provide high quality health care to the American Indian and Alaska Native communities we serve.

The Biden Administration has taken the historic steps of requesting advance appropriations in FY 2022 and a fully mandatory budget in FY 2023 for the IHS to fundamentally change the way the Agency receives its appropriations and resolve the negative impacts of budget uncertainty. We sincerely appreciate your support as we work toward achieving these goals.

Thank you for your continued support on our shared mission to raise the health status of urban Indians to the highest possible level. If you have additional concerns, please directly contact Ms. Jillian Curtis, Chief Financial Officer, Office of Finance and Accounting, IHS, by telephone at (301) 443-0167, or by e-mail at jillian.curtis@ihs.gov.

Sincerely,
Roselyn Tso
Director

In response to Tso's letter, NCUIH Chief Executive Officer Francys Crevier (Algonquin) released the following statement:
 
“During the last government shutdown in 2019, five patients died. These are five relatives — mothers, fathers, grandparents— who are no longer part of our community and unable to pass on our cultural traditions that they hold, all because of federal budget disputes. It is atrocious and tragic that the government expects Indian health providers to continue providing services to the most vulnerable population in the country without an enacted budget.

“Congress regularly fails to reach a budget agreement in time year after year, and Native people are the ones that suffer. Budget delays hinder healthcare delivery, and it’s unacceptable.

“To truly honor its commitment to Native people, the government must act to end budget delays that cost lives. Indian Country has tirelessly advocated for secure funding through advance appropriations for IHS, which is the only major federal healthcare provider funded through annual appropriations. The federal government continues to prove that the safety of Native lives is not a concern, as the government fails to fund IHS in a timely manner and does not provide exception apportionment to the programs that carry out healthcare services to the over 70% Native population living in urban areas.”

More on the ongoing advance appropriations battle here.