On January 24, 2022, the National Indian Health Board's (NIHB) directors took formal action to support a legislative fix for contract support cost (CSC) administration to correct a troubling decision in a recent court case. On August 24, 2021, the D.C. Circuit Court of Appeals in Cook Inlet Tribal Council, Inc. v. Dotomain, held that, if the IHS had “normally” paid for certain costs, those costs could not be eligible for reimbursement as a CSC. In January, 2022, the Tribe’s petition for rehearing was denied.
This case means that, if the secretary normally paid for rent, utilities, or other overhead, those costs could not qualify as CSC. Tribes would then have to pay for those costs from program dollars.
The Cook Inlet decision sets a troubling and far-reaching precedent for future federal-tribal contract negotiations. It has been cited to govern the agency’s decision in December 2021, when approximately 90 percent of one Tribe’s request for FY 2022 CSC funding was declined.
Providing health care services for American Indian and Alaska Native people is a trust responsibility and treaty obligation of the federal government. Congress authorized CSC to support Tribal administration of the federal health care programs and to promote Tribal self-determination and self-governance. Tribes have also fought hard to secure full funding of CSC. However, the recent Cook Inlet decision has the potential to reverse that progress for Indian health care.
NIHB urges Tribes to join efforts in urging congress to legislatively fix the Cook Inlet decision. A fix would help ensure that Tribes do not have to divert funding and resources from patient care to pay for CSC. Download the letters from NIHB to congress urging adoption of an amendment to the Indian Self-Determination and Education Assistance Act to correct the Cook Inlet Tribal Council v. Dotomain decision.
