Deficient Oversight by the Indian Health Service Leaves Money on the Table, Patients Holding the Bag

Written By:  Lisa R. Shellenberger of Smith, Shelton & Ragona, LLC

The Indian Health Service (“IHS”), an agency within the U.S. Department of Health and Human Services, is responsible for providing federal health services to American Indians and Alaska Natives (collectively, “Native Americans”).   The IHS provides a purportedly comprehensive health service delivery system for approximately 1.9 million Native Americans.  It is becoming clear, however, that funding for the system if far from optimal, and the services do not reach the level of being “comprehensive.”  IHS’s goal is “to assure that comprehensive, culturally acceptable personal and public health services are available and accessible to American Indian and Alaska Native people.”  However, due to deficiencies in IHS’s oversight of data collection, the agency is falling short in accomplishing this goal.

There are thousands of IHS health care facilities around the country, but many Native Americans require care from outside facilities.  The IHS has a program called the Contract Health Services Program (“CHS”), which provides coverage for medical and dental care obtained at non-IHS or tribal health care facilities.  The CHS program is vital to the health and well-being for many Native Americans, as it pays for care from non-IHS providers if 1) the patient meets certain requirements and 2) the funding is available.  The latter condition has become problematic.

In managing the CHS program, the IHS collects data from the federal and tribal IHS programs on outside services received for which funding was not available.  The Patient Protection and Affordable Care Act requires the Government Accountability Office (“GAO”) to study the adequacy of IHS oversight and federal funding for the CHS program.  The GAO found that due to deficiencies in IHS’s oversight of data collection on unfunded outside services, the estimate that IHS used to determine the amount of funds needed for the CHS program was not accurate.  Because the IHS did not track the data well, the CHS program potentially lost out on significant funds – funds that would have made comprehensive care more of a reality for the IHS system.

As an example of the data mismanagement, in 2009, the federal government did not even receive information from 35 CHS programs.  Failing to include the needed funds for 35 CHS programs could, in itself, cause an inadequacy of hundreds of thousands of dollars in funding needed for individual patients.  The format in which the GAO requested this information did not provide a means to track the programs that did or did not submit the data.  Additionally, individual CHS programs reported inconsistencies in how they recorded information on unfunded services, further compounding the issue of adequacy of the information.

Communication between health care providers and IHS is also contributing to the problem.  Providers reported difficulty in determining which services would be approved for payment because, unlike other payers, they cannot check a patient’s eligibility electronically.  Providers also face a lack of training and guidance on CHS policies and procedures regarding payment.

As a result of this deficiency in proper management, increased and adequate oversight by IHS is needed to ensure the accuracy of data used to estimate the true amount of CHS funds needed.  Over a year ago, the GAO recommended that the HHS direct the IHS to ensure that unfunded services data is accurately recorded, CHS program funds management is improved, and provider communication is enhanced.  In November 2010, IHS responded by creating a workgroup to examine weaknesses in its current data and to explore other reliable ways to obtain data on needed funds.  A year later, however, the agency has yet to take any action to improve the system.  Surely a competent, well-meaning workgroup could have come up with a few options that could be implemented quickly.  If you had private insurance, but were being refused treatment because your insurance company took over a year to obtain money currently available to pay for your treatment, wouldn’t you be a little upset?  The egregiousness of the action becomes more evident once the actor is no longer the federal government.  Do we really expect that much more out of private institutions?  If not, where does this discrepancy in accountability originate?

The lack of an accurate estimate of needed funds for the CHS program is causing harm – real, physical harm to Indian people in need of specific and urgent health care.  Many conditions worsen the longer they go without treatment, so delay is very costly in real human terms.  Individuals are not receiving medical care or are not receiving funding for care solely because the IHS has failed in proper management and oversight.  Call this another case of mismanagement of Indian affairs by the federal government or simply call it unacceptable; regardless of what we call it, it has to stop.  It is imperative that the U.S. Department of Health and Human Services step in and require the IHS to implement new data processing and oversight procedures now.  At the end of the day, it is the Indian people that pay for the deficient oversight of the IHS – and at times, they pay with their lives.

Lisa R. Shellenberger is an Associate Attorney at the law firm of Smith, Shelton & Ragona, in Westminster, Colorado.

Smith, Shelton & Ragona Adds Indian Gaming Authority Andrea Lord Goldstein

Written by: Lisa R. Shellenberger of Smith, Shelton & Ragona

Smith, Shelton & Ragona continues to grow – even in the economy’s bad times.  Indian Gaming authority, Andrea Lord Goldstein, was chosen in September to join the team at Smith, Shelton & Ragona as a Senior Associate.

Smith, Shelton & Ragona is one of the few law firms in Colorado dedicated to representing American Indian interests.  The firm partners were asked why Goldstein was the right choice for an addition to the law firm.  Partner Don Ragona stated, “Andrea is a clear, precise technical thinker.  Our clients, and especially our gaming clients, deserve an attorney who can navigate the technicalities of the law as well as National Indian Gaming Commission rules and regulations.  She operates with the confidence and precision that it takes to protect the interests of our Tribal gaming clients.”

For nearly five years, Goldstein was a Staff Attorney for the National Indian Gaming Commission (“NIGC”), where she ensured compliance with the Indian Gaming Regulatory Act (“IGRA”).  She litigated key gaming cases, including the Colorado River Indian Tribes v. NIGC case on Class III regulations, as well as several cases on the gaming status of Indian lands and a Jack Abramoff matter.  Goldstein stated, “While at the NIGC, I created a model gaming ordinance based on best practices used by Tribes, designed an Indian lands database and drafted a variety of regulations, including the facility license regulations.”  She spent a year on special assignment as Counselor to Assistant Secretary – Indian Affairs Carl Artman, specializing in gaming matters.

While many consider her an expert in Indian Gaming practice, Goldstein is a front runner in other areas of Indian law as well.  She explained, “I’ve worked with many aspects of Indian law, from the federal acknowledgment process through placing land into trust status.  As Counselor to the Assistant Secretary – Indian Affairs, I coordinated the team that reviewed what was slowing up the process for placing land into trust and created a handbook for quicker and more consistent processing of fee to trust applications.”  Goldstein also worked with the Native American Rights Fund and the Colorado Commission of Indian Affairs to repatriate remains under the Native American Grave Protection and Repatriation Act.

The partners of Smith, Shelton & Ragona continually checked in with Goldstein as her experience in Gaming and Indian law grew.  Finally this fall, both Smith, Shelton & Ragona and Goldstein felt that it was an appropriate time for Goldstein to come on board.

Goldstein was asked what she would be focusing on in her work at Smith, Shelton & Ragona.  She stated, “[a]t SSR, I’m creating strong regulations, ensuring that contracts favor Tribal interests, and advising on potential business opportunities to bolster economic growth.  In my experience, Tribes with strong regulatory policies and well-functioning court systems are able to attract business partners and encourage reservation development.”

Many Tribes are presently facing new issues in addition to old ones.  New opportunities are arising as well.  As a result, tribes and tribally-related clients are continuously looking to Smith, Shelton & Ragona for legal advice and guidance.  Goldstein explained, “Tribes are expanding into many more areas of economic development.  For example, they are creating their own oil and gas leases rather than allowing the Department of the Interior to negotiate for them.  Here at SSR, we provide not only legal advice, but practical suggestions on ways to maximize revenue, create tourism, or expand business opportunities.  Tribes must create an impression of stability and reliability for their reservations, encouraging entrepreneurs to take advantage of the lower taxes and partner with tribes to promote unique business development opportunities.”

Smith, Shelton & Ragona’s attorney roster will be expanding even more this month.  On October 24, Lisa R. Shellenberger, who has been with SSR since June of 2010 as a Law Clerk, will be sworn in as an attorney by the Justices of the Colorado Supreme Court.