A federal judge has ruled that the U.S. Indian Health Service unlawfully refused to reimburse the Cook Inlet Tribal Council for over $467,000 in costs of a federal contract to provide substance abuse treatment.
In a 39-page decision handed down on Nov. 7 in U.S. District Court in Washington D.C., Judge Emmet G. Sullivan remanded the case back to IHS to look over the numbers and to get more precision, because he didn’t think the record was clear enough on that point, said Attorney Lloyd Miller, who represented CITC with attorney Becca Patterson, both of Sonosky Chambers, a national law firm, with offices in Anchorage, devoted to representing Native American interests.
IHS awarded the contract for the tribal council to provide alcohol and other addiction treatment services in 2014 under the federal Indian Self-Determination Act.
That statute requires that IHS must reimburse a contractor for its overhead costs, in this case the cost of the Ernie Turner Treatment Center where CITC treats its clients.
Sullivan ruled that the health service’s position was inconsistent both with its own regulations and the IHS internal manual, and contrary to the controlling statute.
Miller hailed the ruling as a decisive victory.
“The decision sets a national precedent,” because the agency had for years enforced a policy of denying all tribes in the country their full facility costs in certain circumstances, he said.
Although case involved over $467,000 in expenditures for one year, CITC also has claims pending from 2006 through 2017, suggesting that CITC’s final recovery will be in the millions, Miller said.
In 2005 and again in 2012 the U.S. Supreme Court held the federal government liable for failure to reimburse tribal overhead costs nationwide. After those decisions, IHS settled hundreds of historic claims for over $800 million and adopted a new contracting manual. But in recent years IHS has renewed the practice of denying payments required by law, prompting more litigation and several agency setbacks in the courts.
Four years ago, another federal judge upheld the right of the Maniilaq Corp., the regional nonprofit providing health care and social services to Northwest Alaska, to be reimbursed for clinic leasing costs in Kivalina.
Sullivan noted that decision in issuing his Nov. 7 decision.
Earlier this year, a U.S. Senate report urged IHS to reform its procedures for paying tribal contractors, but to date no changes have been made, Miller said.
In addition to its alcohol treatment program, CITC, a private nonprofit corporation, provides social, education, employment, training, child care, housing assistance, energy assistance and planning to Alaska Natives in the Cook Inlet region. These include eight federally-recognized tribes, including Chickaloon Village Traditional Council, the Native Village of Eklutna, the Kenaitze Indian Tribe, the Knik Tribal Council, the Ninilchik Traditional Council, the Salamatof Tribal Council, the Seldovia Village Tribe and the Native Village of Tyonek.
Congress enacted the Indian Self-Determination and Education Assistance Act in 1975 to codify the federal government’s “obligation” to “respond to the strong expression of the Indian people for self-determination” and to achieve “maximum Indian participation in the direction of educational as well as other federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities,” Sullivan noted in his opinion.
CITC has been a tribal contractor under the ISDEAA since 1992.
To that end, ISDEAA mandates that IHS must “upon the request of any Indian tribe, enter into a self-determination contract … to plan, conduct, and administer” health, education, economic and social programs that the secretary otherwise would have administered,” Sullivan said, citing the act.
Sullivan also noted that ISDEAA provides for two types of funding, “secretarial” amount funds and “contract support costs” funding. IHS is an agency within the Department of Health and Human Services, and secretarial funds refers to the amount that the Health and Human Services would have paid for those services.
As originally enacted, the ISDEAA only required the government to provide funding such as would have been paid by the federal Department of Health and Human Services, but in 1988, because of concern with the government’s past failure to adequately reimburse tribes’ indirect administrative costs, Congress amended the ISDEAA to require the governor to contract to pay the full amount of contract support costs related to each self-determination contract.
