August 14, 2023

Dear USET/USET SPF Family,

Earlier this year, USET alerted our members to a ruling in the Ninth Circuit that requires the Indian Health Service (IHS) to pay Contract Support Costs (CSC) on portions of Tribal Health Care Programs that are funded by third-party revenues, such as Medicare, Medicaid and private insurance. More information on the decision can be found in the alert below, and in this memorandum from Hobbs, Strauss, Dean and Walker LLP (HSDW).

At this time, as the litigation is likely to rise to the Supreme Court, we are encouraging our member Tribal Nations to file claims for those CSC costs owed by IHS. Tribal Nations are encouraged to file claims for Fiscal Year (FY) 2017 by September 30, 2023 in order to meet the 6-year statute of limitations on this issue. Tribal Nations with a calendar year agreement should file claims by December 31, 2023. While it is no guarantee that the Tribal Nations will prevail in this case, we strongly encourage Tribal Nations to file, as the claims are preserved in the event that the case is ruled in favor of Tribal Nations. Filing a claim does not commit a Tribal Nation to litigation either, as there will be more time in the future to evaluate the path forward as the litigation works through the court system.

More information on how to file, including background on the litigation and why filing is advantageous, can be found in this memorandum from HSDW. We strongly encourage our member Tribal Nations to read the entire memo and consider filing claims under this suit.

For more information, please contact Ashton Martin, USET SPF Health Policy Analyst, at amartin@usetinc.org. 

February 17, 2022

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 omiller@usetinc.org.

Established in 1969, the United South and Eastern Tribes, Inc. (USET) is a non-profit, inter-Tribal organization serving thirty-three (33) federally recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET is dedicated to enhancing the development of Tribal Nations, improving the capabilities of Tribal governments, and improving the quality of life for Indian people through a variety of technical and supportive programmatic services.