Dear USET/USET SPF Family,
In case you missed it, Hobbs, Status, Dean & Walker issued a memorandum
on November 22, 2022, regarding the Ninth Circuit Rules that Indian Health Service Owes Contract Support Costs on Third-Party-Funded Portion of Tribal Health Care Program.
On November 21, 2022, the Ninth Circuit Court of Appeals ruled in favor of the San Carlos Apache Tribe on a critical contract support cost (CSC) funding issue: whether health care services funded by third-party revenues, such as Medicare, Medicaid, and private insurance, generate CSC. Recent court decisions favored the Indian Health Service (IHS) on this issue, holding that only funds appropriated to, and transferred by, IHS require the agency to add CSC. In ruling for the Tribal Nation, the Ninth Circuit departed from the D.C. Circuit in Swinomish Indian Tribal Community v. Becerra, creating a circuit split that may induce the Supreme Court to take the case should the Government petition for review. Hundreds of millions of dollars per year in CSC funding are riding on the outcome of the litigation on this issue.
The Ninth Circuit's ruling underscores that claims for unpaid CSC on third-party expenditures are very much alive, even though the litigation may continue for months or years. The statute of limitations for such claims, under the Contract Disputes Act, is six years, running from the end of the Tribe's contract year. Thus, Tribes can still file claims for as far back as calendar year 2016 or fiscal year 2017 and should strongly consider doing so if they have not already.
We encourage you to read the entire memorandum. If you have any questions, do not hesitate to contact Onawa Miller, USET THPS Director, at email@example.com.