Implementation of United States Supreme Court decision Becerra v. San Carlos Apache Tribe

On June 6, 2024, the United States Supreme Court decided Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe, holding that the Indian Health Service (IHS) must pay eligible CSC incurred by Tribes and Tribal organizations that expend program income, or third-party reimbursements, under their Indian Self-Determination and Education Assistance Act (ISDEAA) contracts and compacts.

On June 13, 2024 IHS issued a Dear Tribal Leader Letter with Initial Guidance:

Dear Tribal Leader-Becerra v. San Carlos Apache Tribe and Northern Arapaho Tribe

Enclosure: Third-Party Reimbursements

Contract Support Cost Advisory Group

The Agency has also convened the Contract Support Cost Advisory Group (CSCAG) which is made up of Federal and Tribal members, whose charge includes providing advice and recommendations on the IHS CSC policy, as well as identifying priorities, issues and providing advice to improve the policy. Contract support Cost Advisory Group - CSCAG

2024 Meeting schedule:

• June 26, 2024 – Initial Virtual Meeting (Zoom)
• July 24, 2024 – In person Meeting, Washington DC
• August 12, 2024 – Virtual Meeting (Zoom)
• November, 2024 – TBD

Tribal Consultation

On August XX IHS issued a Dear Tribal Leader Letter to initiate Consultations

XXX-Insert LINK here

The IHS invites Tribal Consultation on the expansion of the CSC policy, as well as necessary changes required to implement CSC calculations on expenditures of program income.  Throughout the CSCAG’s discussions, there were a few recurring topics of particular interest to this Tribal Consultation.

Due to the variability of how T/TOs collect program income expenditure data, the IHS is seeking recommendations on how to estimate initial amounts, as well as reconcile CSC annually.

1. The CSCAG recommended that CSC related to program income expenditures in the upcoming year may initially be calculated based on program income expenditures in the most recently completed year.  What documentation would you recommend be used to verify program income expenditures?
   1. If the Negotiated Indirect Cost Rate Agreement does not clearly show program income expenditures, can you recommend other forms of verification that could be used?
   2. Even if verified, are program income expenditures from a prior year a reliable number to use to estimate expenditures for a future year?  If possible, please provide an estimate on how much variability in program income expenditures is typical.
2. Tribes and the IHS serve non-Beneficiaries at varying levels and degrees.  Some may expand services to a broader range of non-beneficiaries under a “Section 813” resolution, 25 U.S.C. 1680c(c).  The CSCAG’s Tribal Representatives also recommended that program income expended on services to non-beneficiaries not be accounted for, in part due to overly burdensome data collection.  The CSCAG’s Federal Representatives believe, for expenditures related to non-beneficiaries, because the law requires full-cost recovery for those services, there would be no CSC need (in other words, those services should be self-sustaining).
   1. We are asking for your recommendations on what documentation T/TOs suggest is reliable to indicate how program income is being spent as it relates to providing services to non-beneficiaries that will to ensure that T/TOs are not reimbursed twice for providing those services, since full-cost recovery is necessary in these instances?
3. The CSCAG’s Tribal Representatives proposed that the negotiations process allow for certification of expenditures of program income; a draft document has been included as an attachment for comments.  The IHS would use this form in ISDEAA negotiations between T/TOs and the IHS to establish the estimate of CSC need and funding prior to the contract year.  Based on the T/TOs responses to the certification additional documentation may be requested.
4. The CSCAG Federal Representatives noted that compensation received from third?party payors might already reimburse some costs that might also be proposed for CSC reimbursement.  The CSCAG Tribal Representatives indicated that they did not believe this issue needs to be addressed.  We are asking for your recommendations on what documentation the IHS can use to ensure the program expenditure has not already been fully reimbursed, and there is, in fact, a CSC need?

The IHS will post the registration links below on the IHS Event Calendar and the Contract Support Costs web page.  Please make plans to join us for multiple Tribal Consultation sessions being held in September. 

Virtual Sessions

In-Person Sessions

Contract Disputes Act Claims

Authorities

25 C.F.R. Part 900, Subpart N (Post Award Disputes)
42 C.F.R. Part 137, Subpart G (Funding) and Subpart P (Appeals)
41 U.S.C. § 7101 et seq.

For post-award claims for CSC on expenditures of Third-Party Reimbursement the IHS will follow the established requirements and procedures of the ISDEAA and implementing regulations in reviewing Contract Disputes Act (CDA) claims from individual Tribal health programs (THP) seeking additional CSC under awarded contracts. Claims that are not submitted in writing to the awarding official within 6 years of accrual are barred by the statute of limitations and will be denied in the ordinary course.

Therefore, for example, claims attributable to contracts with a performance period ending in fiscal year (FY) or calendar year (CY) 2017 or earlier are now barred and will be denied. Claims within the statute of limitations that exceed $100,000 annually must be accompanied by a certification of accuracy and good faith. If a certification is not provided, the IHS will issue a rejection of the defective claim(s).

Both Title I and Title V THP must submit their claims to the appropriate awarding official. Only claims properly presented to the appropriate IHS awarding official will be considered. Valid claims should be submitted to the central email account IHSCDAClaims@ihs.gov with a copy to the Awarding Official for your region and contract type, which is listed below.