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Dear USET/USET SPF Family,
Yesterday, November 20, 2023, the Supreme Court of the United States agreed to take up two federal government petitions that seek to overturn orders that the Indian Health Service (IHS) reimburse millions of dollars of Contract Support Costs (CSC) to Tribal Nations to provide insurer-funded services to their patients.
The federal government petitioned the Supreme Court following decisions in two litigation cases involving reimbursements to Tribal Nations that the government claims could potentially cost $2 billion a year to support. In November 2022, the Ninth Circuit ordered the IHS in the case Becerra v. San Carlos Apache Tribe, to refund administrative costs tied to three years of Tribal-run services funded through insurance revenues. In March 2023, in Becerra v. Northern Arapaho Tribe, the Tenth Circuit ordered the IHS to reimburse $1.5 million in administrative costs for the Tribal Nation. USET SPF was a signatory to a Tribal Nations and organizations amicus brief in the San Carlos case.
A U.S. Circuit Judge held that certain ambiguous sections of the Indian Self-Determination and Education Assistance Act (ISDEAA) should be read as requiring the IHS to reimburse Tribal Nations for all types of contract support costs, including funds that Tribal Nations receive from third-party insurers such as Medicare, Medicaid and private insurance companies.
This case is significant for several reasons, including the fact that if the current decisions are upheld and applied nationally, the ruling could result in between $800 million and $2 billion a year being returned to Tribal Nations for CSC. The ruling may also be applied retroactively, and we have alerted our members in the past to an opportunity to file retroactive claims against the IHS for these costs.
The Supreme Court has consolidated the two cases together and granted one hour of oral argument. USET SPF will continue to monitor this issue and provide additional information when appropriate.
For more information, please contact Ashton Martin, USET SPF Health Policy Analyst, at amartin@usetinc.org.
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