By Corinne Sebren
On June 6, 2024, in a major victory for tribal health care programs, the United States Supreme Court ruled on the consolidated cases of Becerra v. San Carlos Apache Tribe (No. 23-250) and Becerra v. Northern Arapaho Tribe (No. 23-253).
In its ruling, the Supreme Court affirmed the Ninth and Tenth Circuit’s earlier decisions, and held that IHS is required to cover the reasonable costs incurred by Tribes when they utilize revenues from third-party payers (e.g., Medicare, Medicaid, and private insurance).
The High Court’s decision, authored by Chief Justice Roberts, explained that “[b]ecause a self-determination contract requires a tribe to spend program income to further the programs transferred to it in the contract,” the statutory provisions of the ISDEAA “require IHS to pay contract support costs when a tribe does so, just as IHS must pay contract support costs to support a tribe’s spending of the Secretarial amount [i.e., amounts determined through congressional appropriation].”
Chief Justice Roberts was joined by Justices Gorsuch, Jackson, Kagan, Gorsuch, and Sotomayor. Justice Kavanaugh was joined in dissent by Justices Thomas, Alito, and Barrett.
The Court explained that reimbursement of the full amount of contract support costs is necessary to “prevent a funding gap between tribes and IHS,” which would inflict “a penalty for pursuing self-determination” on those Tribes that choose to exercise their rights to operate health care programs under the ISDEAA.
Tribes and Tribal Organizations Should Act Now
The Court’s decision in Becerra confirms the right of Tribes operating healthcare programs under the ISDEAA to obtain payment of contract support costs (CSC) for all activities that are required for compliance with the Tribe’s ISDEAA contract/compact “includ[ing] the third-party-revenue-funded portions of the program.”
The federal government is now required to pay reasonable direct and indirect support costs to Tribes and Tribal organizations that administer healthcare programs under ISDEAA agreements.
All eligible tribal health care programs operating under a 638 contract (or a compact) with IHS to provide health services should act swiftly to present claims and secure the cost reimbursement to which they are entitled. These claims have a six-year statute of limitations, and we expect IHS to strictly enforce this limitations period. It is therefore critical for Tribes and Tribal organizations to act now.
If you would like to request a consult related to filing such a claim, contact the author or another member of the Galanda Broadman team.
Corinne Sebren is an associate with Galanda Broadman. Her practice focuses on civil rights, Indigenous health law, regulatory analysis, and complex litigation.
