November 19, 2019

Protecting Health Care Funding for Tribal Communities

Advance Appropriations Will Help

After years of inaction, legislation that would protect tribal communities from funding disruptions has received a surprising boost in attention as a result of renewed concerns that there may be another government shutdown. P.L. 116-59, the FY 2020 stopgap funding measure, which was enacted on the last day of the 2019 fiscal year to keep the government running, is set to expire on November 21.  Having made only modest progress toward a final year-end spending deal, Congress is expected to resort to another stopgap measure to fund the government through December 20.

The House Natural Resources Subcommittee for Indigenous Peoples of the United States held a hearing in late September to examine two bipartisan bills that would protect tribal communities from the effects of a government shutdown by authorizing advance appropriations for essential Indian programs:  H.R. 1135 (Young, R-AK), which would authorize a two-year appropriation cycle for the Indian Health Service; and H.R. 1128 (McCollum, D-MN), a broader bill, which also would provide advance appropriations authority for certain services provided by the Bureau of Indian Affairs and the Bureau of Indian Education. Representative Young has introduced similar legislation every Congress since 2013, but this is the first time that Congress has taken any action.

The ABA has long advocated for the federal government to fulfill its unique federal trust and treaty obligations owed to Indian tribes, including its responsibility to provide adequate and equitable funding for health services for American Indians and Alaska Natives.

In furtherance of these objectives, the ABA adopted policy this past summer urging Congress to prevent disruptions to the delivery of Indian health care by enacting legislation that authorizes advance appropriations for Indian Health Services (IHS) within the Department of Health and Human Resources and exempts its appropriation from reductions mandated by budget sequestration.

The model for these proposed changes to IHS funding is the Veterans Health Administration (VHA) within the Department of Veterans Affairs. While VHA, like IHS, provides direct health care services to designated populations in support of federal policy objectives, its funding was not jeopardized during the crisis because Congress, in 2010, enacted legislation providing advance funding authority and exemption from sequestration for the VHA.

Tribal leaders and experts and Administration officials testified at the subcommittee hearing. Victoria Kitcheyan, a witness for the National Indian Health Board (NIHB), told the subcommittee, “NIHB strongly believes that authorizing advance appropriations for Indian programs would bolster continuity of care, enable greater long-term planning, improve the stability of the Indian health system, and reduce health disparities.” Testimony submitted by the United South and Eastern Tribes Sovereignty Protection Fund framed support for the legislation in a broader context, stating, “This is ultimately a question about honor, about fulfilling commitments and promises. A nation’s exceptionalism is grounded in these principles. Inadequate and unstable Indian Country funding needs to be viewed as unfilled treaty and trust obligations.”

Both Administration officials acknowledged that lapses in funding and the uncertainty created by stopgap measures create significant challenges within Indian Country. RADM Michael Weahkee, Principal Deputy Director of the Indian Health Service, said that advance appropriations could mitigate the effects of budget uncertainty and pointed out that events like the lapse in appropriations experienced during the 35-day government shut-down last December undermined their efforts to recruit and retain a quality workforce and provide a continuum of care that Tribal members deserve.

In a recent letter to the House Natural Resources Committee, Judy Perry Martinez, president of the American Bar Association, said, “The possibility of another government shutdown in the coming months brings a renewed sense of urgency to the need for your Committee to act promptly to provide health care funding security for programs that serve American Indians and Alaska Natives. While the ABA supports H.R. 1135 and those provisions in H.R. 1128 that authorize advance appropriations for IHS, we note that neither bill exempts IHS from budget sequestration. We therefore urge your Committee to amend the bills to address sequestration and to favorably report them to the floor.”

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