U.S. Commission on Civil Rights 

Office of the General Counsel

Broken Promises: 

Evaluating the Native American Health Care System

Draft Report for Commissioners’ Review 

July 2, 2004 
Staff Draft July 2004 

 

Contents 

Introduction..........................................................................................................................................1

Chapter 1: Nature, Scope, and Effect of Native American Health Disparities ..............................7

Diabetes .............................................................................................................................................9 

Tuberculosis.....................................................................................................................................11 

Mental Health ..................................................................................................................................12 

Unintentional Injuries ......................................................................................................................14 

Major Cardiovascular Diseases .......................................................................................................15 

Pneumonia and Influenza.................................................................................................................17 

Cancer ..............................................................................................................................................17 

Infant Mortality and Maternal Health Rates ....................................................................................19 

Recent Progress in Resolving Disparities........................................................................................19 

Federal Trust Relationship with Native Americans.........................................................................21 

Federal Responsibility for Health Care ...........................................................................................23 

Legislation Assigning Federal Responsibility for Health Care .......................................................24 

Conclusion .......................................................................................................................................25

Chapter 2: Social and Cultural Barriers That Limit Native Americans’ Access to Health Care 

and Contribute to Health Disparities...............................................................................................26

Social and Cultural Barriers.............................................................................................................28 

Racial and Ethnic Bias and Discrimination.................................................................................28 

Cultural Understanding and Language ........................................................................................31 

Socioeconomic Status: Education and Poverty ...........................................................................37 

Health Behaviors and Lifestyle ...................................................................................................41 

Conclusion .......................................................................................................................................43

Chapter 3: Structural Barriers That Limit Native Americans’ Access to Health Care and 

Contribute to Health Disparities ......................................................................................................45

Introduction to the Indian Health Service........................................................................................45 

IHS Health Delivery Programs: Direct, Tribal, Urban Indian.........................................................47 

Direct Delivery System ...............................................................................................................49 

Tribal Health Programs ...............................................................................................................52 

Contract Health Services Program...............................................................................................60 

Urban Indian Health Programs ....................................................................................................65 

Structural Barriers to the Use of IHS Facilities ...............................................................................68 

Remoteness of IHS Facilities ......................................................................................................68 

Aging and Outdated Facilities .....................................................................................................73 

Extended Wait Times at IHS Facilities .......................................................................................74 

Quality of Care Issues......................................................................................................................75 

Ability to Recruit and Retain Health Providers...........................................................................75 

Misdiagnosis or Late Diagnosis of Diseases ...............................................................................78 

Conclusion .......................................................................................................................................81
Staff Draft July 2004 

 

Chapter 4: Financial Barriers That Limit Native Americans’ Access to Health Care and 

Contribute to Health Disparities ......................................................................................................84

Funding Background........................................................................................................................85 

Measurements of Funding Adequacy ..............................................................................................87 

Level of Unmet Need Calculation ...............................................................................................87 

Rate of Increase Relative to Inflation ..........................................................................................91 

Comparison to Other Government Spending ..............................................................................95 

Rate of Increase Relative to Other HHS Components.................................................................96 

Improper Use of Increased Collections from Third Parties.........................................................97 

Specific Funding Needs...................................................................................................................99 

Funding for Contract Health Services .........................................................................................99

Funding for Contract Support Costs..........................................................................................101

Funding for Urban Programs.....................................................................................................103 

Restrictions on Funding.................................................................................................................103 

Entitlement Status......................................................................................................................104 

IHCIF Distribution Rules ..........................................................................................................105 

Administration of Specific Appropriations ...............................................................................106 

Role of Health Insurance in Providing Access to Health Care......................................................107 

Relationship Between IHS Health Care and Third-Party Collections...........................................113 

Conclusion .....................................................................................................................................117

Chapter 5: Proposed Legislative Changes Affecting Native American Health Care ................121

Legislative Changes.......................................................................................................................121 

Reauthorization of the Indian Health Care Improvement Act...................................................121 

Other Proposed Legislation Relevant to Native Americans ..........................................................129 

Closing the Health Care Gap Act of 2004.................................................................................130 

Health Care Equality and Accountability Act ...........................................................................132 

Tribal Contract Support Costs Technical Amendments of 2004...............................................133 

Conclusion .....................................................................................................................................134

Chapter 6: Findings and Recommendations .................................................................................136

Figures 

1. Indian Health Service—Service Population by Area....................................................................... 48 

2. Ten-Year Trends in IHS Buying Power Per Capita......................................................................... 93 

3. Comparison of Approved IHS Budget and IHS Inflation-Adjusted Budget.................................... 94 

4. Per Capita Health Care Expenditures............................................................................................... 95 

Table 

1. Improvements in the Health Status of Native Americans, 1972–1996............................................ 20 
Staff Draft July 2004 1

Introduction 

If you’re a young Lakota woman with a big heart, an even bigger smile, but an 

immune system compromised to its brink by lupus—you know who the enemy is. If 

you’re a tribal chairman receiving a phone call in the middle of the night that 

another one of your tribal members has taken their own life—you know who the 

enemy is. If you are a teacher, attempting to prepare tomorrow’s leaders but 

knowing full well that a number of your students aren’t capable of concentrating 

on school work because of alcohol related family problems—you know who the 

enemy is.1

Today, in Indian Country health-related problems and the lack of adequate health care are 

the enemy. This was borne out on October 17, 2003, when the U.S. Commission on Civil Rights 

(Commission) held a public briefing in Albuquerque, New Mexico, to examine the extent of the 

disparities in the health status and outcomes of Native Americans, and to explore the causes for 

those disparities.2

 Information gathered during this briefing is incorporated into this report. Also 

reflected in this report is information discovered during a survey of existing literature and studies 

on Native American health disparities, as well as interviews of tribal leaders, tribal members, 

policy analysts, researchers, care providers, and representatives of the Indian Health Service 

(IHS) and the Centers for Medicare and Medicaid Services (CMS).3 In addition to conducting 

interviews of IHS and CMS leadership and staff, the Commission used interrogatories to obtain 

additional information about IHS and CMS policies and practices. Finally, members of the 

 

1

 Collette Keith, “IHS Looks Toward an Epi Center to Tackle Health Disparities on the Great Plains,” The Native 

Voice, vol. 1, December 2002, p. 1. 

2

 Throughout this report, the term “Native American” is used in lieu of “American Indian” or other terminology 

when not specifically citing or paraphrasing other work. It should be understood to include Alaska Natives unless 

otherwise noted. Native Hawaiians are not included in the Native American category because they are not 

recognized as having the same government-to-government relationship, and are thus not eligible for the federal 

programs available to other Native groups. The term “Indian Country” refers to geographic regions encompassing 

reservations and trust lands within which Indian laws and customs and federal laws relating to Indians govern. See 

Theodore H. Haas, chief counsel, United States Indian Service, The Indian and the Law (Lawrence, KS: Haskell 

Institute, 1949), p. 15, <http://thorpe.ou.edu/cohen/tribalgovtpam2ptl&2.htm> (last accessed Nov. 21, 2003). It is 

also important to recognize that Native Americans are not simply another minority or ethnic group. They enjoy a 

unique political status that carries unique privileges discussed in more detail in this report. 

3

 Members and representatives of several tribes and tribal advocates were interviewed or otherwise provided 

information during the course of the Commission’s examination of Native American health care issues. Included 

among those providing information are the following: Cherokee Nation; Navajo Nation; Fallon Paiute Shoshone 

Tribe; Wampanoag Tribe; Shoshone Paiute Tribes of Duck Valley; Jamestown S’Klallam Tribe; Mille Lacs Band of 

Ojibwe; Choctaw Nation; Kaw Nation; Chippewa Cree Tribe; Lummi Nation; Hoopa Valley Tribe; Creek Nation; 

Oglala Sioux Tribe; Zuni Pueblo; Santo Domingo Tribe; Santa Clara Pueblo; Cochiti Pueblo; Poarch Creek Indians; 

Hopi; Taos Pueblo; United Tribe; San Carlos Apache Tribe; Ottawa Indian Nation; Dineh Nation; California Rural 

Indian Health Board; Northwest Portland Area Indian Health Board; National Indian Health Board; Alaska Native 

Tribal Health Consortium; Seattle Indian Health Board; Denver Indian Health and Family Services; National Indian 

Youth Council; Sonosky, Chambers, Sachse, Miller & Munson LLP; Hobbs, Strauss, Dean & Walker LLP; 

Association of American Indian Affairs; National Native American AIDS Prevention Center; American Indians in 

Texas; International Indian Treaty Council; Albuquerque Metro Native American Coalition; and Freedmen 

Descendants of the Civilized Tribes. 
Staff Draft July 2004 2

Commission staff gathered information during a tour of the Gallup Indian Medical Center in 

New Mexico and an informal listening session with tribal members and others concerned about 

the state of the Native American health care system. 

This fact-finding process resulted in the discovery of compelling evidence that disparities 

in the health status and outcomes of Native Americans persist four years after the Commission’s 

1999 report titled The Health Care Challenge: Acknowledging Disparity, Confronting 

Discrimination, and Ensuring Equality, and after many years of periodic reporting and 

monitoring of the health disparities experienced by Native Americans and people of color. 

In Chapter 1, this report examines the nature and scope of documented Native American 

health disparities; it also provides an overview of the sources of the federal government’s duty to 

provide health care to Native Americans. That duty derives from the special relationship between 

Native Americans and the federal government, a relationship resulting from “solemn obligations 

which have been entered into by the United States Government,” and made specific by written 

treaties and informal agreements.4

 Chapter 1 explains why the federal government’s 

responsibility to provide quality health care to Native Americans is inescapable and why that 

responsibility means raising the health status of all Native Americans. 

It has long been recognized in Native American and medical communities that Native 

Americans are dying of diabetes, alcoholism, tuberculosis, suicide, unintentional injuries, and 

other health conditions at shocking rates. Beyond these mortality rates, Native Americans also 

suffer significantly lower health status and disproportionate rates of disease compared with all 

other Americans. These realities should come as no surprise to those with a basic knowledge of 

our nation’s history and those charged with making policies that influence the future of the 

Native American population. 

From the earliest days of colonization, the diseases brought from the Old World proved 

far more lethal than any weapon in the European arsenal. Infectious diseases, including measles, 

smallpox, and plague, among others, “annihilated entire communities even before they had seen 

a single European.”5

 The toll taken by infectious disease, when combined with the effects of war, 

the expulsion of virtually all Native Americans from their ancestral lands, and the destruction of 

traditional Native American ways of life, effectively decimated the self-governance structures 

previously employed by Native Americans.6

 As a consequence, Native Americans became 

dependent on the federal government for the provision of adequate health care. 

 

4

 President Richard Nixon, “Special Message on Indian Affairs,” Public Papers of the Presidents of the United 

States: Richard Nixon, 1970, pp. 564–67, 576. 5

 “Native Americans of North America,” Encarta, <http://encarta.msn.com/encyclopedia_761570777/Native_ 

Americans_of_North_America.html> (last accessed June 25, 2004). 

6

 During the 400 years from the first appearance of European settlers to the start of the 20th century, a once thriving 

Native American population was reduced to roughly 400,000. Estimates of the initial population range from more 

than 1 million to almost 18 million. See “Population: Precontact to the Present,” Encyclopedia of the North 

American Indians, <http://college.hmco.com/history/readerscomp/naind/html/na_030500_precontacto.htm> (last 

accessed June 25, 2003). See also S.J. Res. 37, 108th Congress (2004). Resolution of Apology to Native American 

Peoples, “this Nation should address the broken treaties and many of the more ill-conceived Federal policies that 

followed, such as extermination, termination, forced removal and relocation, the outlawing of traditional religions, 

and the destruction of sacred places.” Id.
Staff Draft July 2004 3

Shortly after the birth of our nation, the federal government began assuming 

responsibility for providing health care to Native Americans. Initially, the motivation was 

entirely based on self-interest.7

 With the passage of time, however, the motivation shifted toward 

the fulfillment of an obligation. Nonetheless, federal efforts to provide adequate care were 

minimal. As early as 1926, the government formally questioned the adequacy of health care 

delivery to Native Americans. A 1928 report issued in response to this inquiry began a 76-year 

litany of government pronouncements that the existing health status of Native Americans was 

intolerable. Sadly, much of the substance of that 1928 report issued by the Meriam Commission 

remains true to this day. The report declared that: 

The health of the Indians as compared with that of the general population is bad. 

Although accurate mortality and morbidity statistics are commonly lacking, the 

existing evidence warrants the statement that both the general death rate and the 

infant mortality rate are high . . . The prevailing living conditions among the great 

majority of the Indians are conducive to the development and spread of disease. 

With comparatively few exceptions, the diet of the Indians is bad . . . The housing 

conditions are likewise conducive to bad health . . . The inadequacy of 

appropriations has prevented the development of an adequate system of public 

health administration and medical relief work for the Indians . . . The hospitals, 

sanatoria, and sanatorium schools maintained by the Service, despite a few 

exceptions, must be generally characterized as lacking in personnel, equipment, 

management, and design.8

A health care system matching this description requires the prompt implementation of 

effective remedial measures. This report updates a long series of studies and recommends 

appropriate measures for creating and maintaining an adequate health care system for Native 

Americans. Any study of the nature and scope of disparities in health status and outcomes, as 

described by the Meriam Commission and in subsequent reports, requires an examination of the 

system responsible for providing health care to Native Americans. During its examination of the 

Indian Health Service (IHS) system, the Commission found that many of the disparities in health 

status and outcomes experienced by Native Americans result from social and cultural barriers. In 

Chapter 2, the Commission explores the roles of the most significant social and cultural barriers 

affecting Native American health: 

• Racial and ethnic bias and discrimination. 

• Patient health behaviors. 

• Environmental factors. 

• Delivery of health care in a culturally sensitive and appropriate manner. 

• Language. 

 

7

 National Library of Medicine, “Early United States Government Interest in Native American Health,” 

<http://www.nlm.nih. gov/exhibition/if_you_knew/if_you_knew_03.html> (last accessed July 15, 2003). 8

 Meriam Commission, “The Problem of Indian Administration” (Report of a Survey made at the request of the 

Honorable Hubert Work, Secretary of the Interior, and submitted to him, Feb. 21, 1928) Chapter I, 

<http://www.alaskool.org/native_ed/research_reports/IndianAdmin/Chapter1.html#chap1> (last accessed Feb. 3, 

2004). 
Staff Draft July 2004 4

• Poverty. 

• Education. 

In its 1999 report on health disparities, the Commission found that racial and ethnic bias 

in health care systems manifests itself in a variety of ways, including differential delivery of 

health services; inability to access health services because of lack of financial resources, 

culturally incompetent providers, language barriers, and the unavailability of services; and 

exclusion from health-related research.9

 The ways in which racial and ethnic bias become 

manifest and contribute to health disparities are as valid now as they were in 1999. Recent 

research reaffirms the Commission’s findings; racial and ethnic bias, and stereotyping, continue 

to play significant roles in the quality of the physician-patient relationship and in access to 

medical treatment information.10 

In addition to social and cultural barriers, the Commission determined that structural 

barriers, and financial barriers cause and contribute to health disparities. The structural barriers 

limiting access to care are discussed in Chapter 3 and include: 

• Management or oversight issues relating to the different types of IHS services. 

• Geographic location of facilities. 

• Wait times at the facilities and for treatment. 

• Age of facilities. 

• Turnover rates of providers. 

• Retention and recruitment of qualified health providers. 

• Misdiagnosis or late diagnosis of disease. 

• Rationing of health services. 

The financial barriers are discussed in Chapter 4 and build upon the Commission’s work 

in the 2003 report, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country. The 

focus of the chapter is the long-neglected and underfunded IHS. The IHS inherited a system that 

historically has been deprived of the administrative, financial, and other resources necessary to 

 

9

 U.S. Commission on Civil Rights, The Health Care Challenge: Acknowledging Disparity, Confronting 

Discrimination, and Ensuring Equality, September 1999, p. vii (hereafter cited as USCCR, The Health Care 

Challenge). 

10 See Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care

(National Academies Press, Washington, DC, 2002), p. 12: 

Finding 4-1: bias, stereotyping, prejudice, and clinical uncertainty on the part of healthcare 

providers may contribute to racial and ethnic disparities in healthcare. While indirect evidence 

from several lines of research supports this statement, a greater understanding of the prevalence 

and influence of these processes is needed and should be sought through research. 

See also Karen Scott Collins et al., “The Commonwealth Fund—Diverse Communities, Common Concerns: 

Assessing Health Care Quality for Minority Americans,” March 2002, <http://www.cmwf.org/programs/minority/ 

collins_diversecommunities_523.pdf> (last accessed Feb. 9, 2004), and U.S. Department of Health and Human 

Services, Agency for Healthcare Research and Quality, National Healthcare Disparities Report, December 2003, p. 

12. 
Staff Draft July 2004 5

provide health care equivalent to that provided to most other Americans. Twenty-one years after 

the Meriam Commission report first condemned the state of Indian health care, it was clear that 

any improvements in the health care provided to Native Americans were superficial. In 1949, the 

American Medical Association (AMA) railed against the lack of the federal commitment to care 

for Native Americans, noting that recommendations presented to government officials were 

either not carried out at all or not executed beyond their initial stages because of inadequate 

funding.11 Then, as now, experts called for Congress to increase funding. This chapter of the 

report will discuss the many ways in which health care financing is inadequate. 

Proposed legislative changes aimed at improving the delivery and quality of care 

provided are examined in Chapter 5. Legislation reauthorizing the Indian Health Care 

Improvement Act was introduced and debated in the past three sessions of Congress. These 

legislative efforts included extensive tribal consultation and the final version of the proposed 

reauthorization legislation received the full backing of tribal leaders, even though these leaders 

made many compromises. This chapter will outline the important provisions, including the 

sections deleted during negotiations, and how the proposed changes will affect health care. 

Finally, in Chapter 6, this report makes recommendations for improving the delivery and 

quality of Native American health services. While several of the recommendations are rooted in 

increased funding, the emphasis on funding is not intended to exclude or underemphasize the 

value of significant reforms that can be implemented without sharp increases in IHS funding. 

Several recommendations are made that focus on using existing resources wisely and adopting 

innovative approaches to disease prevention and detection. An example of a change requiring 

little or no increase in funding is a re-examination of how IHS teaches the value of preventive 

medicine and early detection. These concepts are uncommon in Native American communities. 

After careful examination, Dr. Linda Burhansstipanov, a member of the Western Cherokee 

Nation in Tahlequah, Oklahoma, concluded that for Native American adults prevention and 

detection is a low priority. Native Americans who are raised on reservations, or those with very 

traditional beliefs, value prevention and detection more when framed in the context of family and 

“bringing in a healthy next generation.”12 A woman will understand, for example, the value of an 

annual mammogram if she is told that early detection will allow her to survive to “teach her 

grandchildren the stories” of her people.13 This same woman may not see the value of breast 

cancer screening if only told that it makes good medical sense. Likewise, teaching health care 

providers to be culturally aware and to demonstrate cultural sensitivity during the examination 

and treatment of Native American patients will increase the numbers taking advantage of 

available detection and intervention procedures. These changes, though not costly, would 

 

11 W.F. Braasch, B.J. Branton, and A.J. Chesley, “Medical Care Among the Upper Midwest Indians,” Journal of the 

American Medical Association, January 1949, as cited in S. Rep. No. 94-1194, at 73 (1976), reprinted in 1976 

U.S.C.C.A.N. 2711. 

12 Linda Burhansstipanov, “Leaders and Survivors,” in Eliminating Health Disparities: Conversations with 

American Indians and Alaska Natives, eds. Michael E. Bird, William M. Kane, and Marcia Quackenbush (ETR 

Associates, 2002), pp. 37–38. 

13 Ibid., p. 38. 
Staff Draft July 2004 6

increase the detection of many of the diseases contributing to the decreased life expectancy of 

Native Americans and a diminished quality of life.14 

Any specific effort to improve Native American health care will inevitably fall short of 

complete success unless certain principles and approaches are embraced. First, the extent of 

current health disparities in the Native American community and their relationship to historical 

events must be acknowledged by the federal government. Second, measurable long-term and 

short-term goals designed to improve the health status and outcomes of Native Americans must 

be created and promptly implemented. These goals must encompass fiscal, legal, structural, and 

policy changes. Third, tribes must be provided expanded opportunities to control and manage the 

delivery of health care to Native Americans. The tribal leaders and the Native American people 

are up to the task of raising the health status of their own people. They desire control of their 

own destiny, yet they require congressional action to make their vision a reality. They require 

congressional action so that finally our nation will honor the commitments made so long ago. 

According to W. Ron Allen, chairman of the Jamestown S’Klallam Tribe, “if you authorize us, if 

you fund us, if you empower us, we can make the solutions a reality.”15 

In the end, as a result of our examination of the Native American health care system and 

the nature of historical relationship between tribes and the federal government, it is possible to 

reduce this report to a single compelling observation. That observation is that persistent 

discrimination and neglect continue to deprive Native Americans of a health system sufficient to 

provide health care equivalent to that provided to the vast majority of Americans. In a forum 

with tribal leaders, Senator Sam Brownback recognized this implicitly when he remarked that it 

is time to stop “poking the wound” of discriminatory treatment and to put equal efforts into 

“healing the wound.”16 

In this light, this report should be considered a clarion call to those who inexplicably fail 

to acknowledge the present state of Native American health care and to those who lack the 

commitment necessary to address the overwhelming need for clear and decisive action. Such a 

call is certainly appropriate for our political leadership and the message is clear—it is finally 

time to honor our nation’s commitment to protecting the health of Native Americans. 

 

14 A Native American born in 2002 has a life expectancy of 70.6 years, compared with a life expectancy of 76.5 

years for other Americans. See Indian Health Service, Transitions 2002: A 5-Year Initiative to Restructure Indian 

Health, October 2002, p. 9. 

15 Ibid. See also Ron Allen, chairman, Jamestown-Klallam Tribe, telephone interview of Apr. 14, 2004. 

16 Jerry Reynolds, “Republican Forum Courts Native Views,” Indian Country Today, Mar. 5, 2004, <http://www. 

indiancountry.com/?1078505241&style=printable> (last accessed Mar. 10, 2004). 
Staff Draft July 2004 7

Chapter 1: Nature, Scope, and Effect of Native American Health Disparities

Despite the creation of an independent public health system and more than $3 billion in 

funds appropriated by Congress each year to deliver health care services for Native Americans, a 

wide range of public health status indicators demonstrate that Native Americans continue to 

suffer disproportionately from a variety of illnesses and diseases.1

 In addition, Native Americans 

rate their health as fair or poor at a rate significantly higher than all other racial/ethnic groups.2

Dr. Jon Perez, director of Behavioral Health for the IHS, described these health disparities as 

“real and highly visible” to Native Americans.3 Poor health has become a community 

characteristic and— 

To people who live in such communities, these are not just numbers but the 

constant realities of sirens and phones calling them to hospitals and funerals. They 

must witness their favorite grandmother going blind or having her foot amputated 

because of diabetes or the high school basketball star moving to the city for 

diagnosis and treatment of AIDS because no one has the resources to deal with 

her.4

 Consequently, not only is reduced health status a burden to Native Americans, but a 

cumulative drain on the entire Native American existence. Poor health inhibits the economic, 

educational, and social development of Native Americans and establishes an inescapable cycle of 

disparity. Nevertheless, not all news regarding health status is bad news. IHS has been given 

primary responsibility for eliminating this disproportionate health status and has been largely 

successful in reducing mortality rates, while making significant improvements in other areas.5

Dr. Perez explained that the incidence and prevalence of many infectious diseases have been 

dramatically reduced through increased clinical care and public health efforts such as vaccination 

for infectious diseases and the construction of sanitation facilities.6

 

1 See generally Office of Management and Budget, “Statistical Policy Directive No. 15: Race and Ethnic Standards 

for Federal Statistics and Administrative Reporting,” 1977; Office of Management and Budget, “Recommendations 

from the Interagency Committee for the Review of the Racial and Ethnic Standards to the Office of Management 

and Budget Concerning Changes to the Standards for the Classification of Federal Data on Race and Ethnicity,” July 

9, 1997, <http://www.whitehouse.gov/omb/fedreg/print/directive_15.html> (last accessed July 15, 2003). 

2

 Henry J. Kaiser Family Foundation, “Key Facts: Race, Ethnicity & Medical Care, June 2003 Update,” p. 8. 

Specific rates include 7.4 percent for Asians; 7.9 percent for non-Latino whites; 12.9 percent for Latinos; 14.6 

percent for non-Latino African Americans; and 17.2 percent for American Indian/Alaska Natives. Ibid. 3

 Jon Perez, testimony before the U.S. Commission on Civil Rights, briefing, Albuquerque, NM, Oct. 17, 2003, 

transcript, p. 14 (hereafter cited Briefing Transcript). 

4

 Marjane Ambler, “Reclaiming Native Health,” Tribal College Journal of American Indian Higher Education, vol. 

15, Winter 2003, p. 8. 

5

 Since 1973 mortality rates have been reduced for the following: tuberculosis (82 percent); maternal deaths (78 

percent); infant deaths (66 percent); accidents (57 percent); injury and poisoning (53 percent); and pneumonia and 

influenza (50 percent). Indian Health Service, Trends in Indian Health 1998–99, <http://www.ihs.gov/publicinfo/ 

publications/trends98/part2.pdf> (last accessed Aug. 21, 2003) (hereafter cited as IHS, Trends in Indian Health 

1998–99). See also Perez Testimony, Briefing Transcript, pp. 14, 15. 6

 Perez Testimony, Briefing Transcript, p. 15. 
Staff Draft July 2004 8

Today, Native Americans continue to experience significant rates of diabetes, mental 

health disorders, cardiovascular disease, pneumonia, influenza, and injuries. Specifically, Native 

Americans are 770 percent more likely to die from alcoholism, 650 percent more likely to die 

from tuberculosis, 420 percent more likely to die from diabetes, 280 percent more likely to die 

from accidents, and 52 percent more likely to die from pneumonia or influenza than the rest of 

the United States, including white and minority populations.7 As a result of these increased 

mortality rates, the life expectancy for Native Americans is 71 years of age, nearly five years less 

than the rest of the U.S. population.8

 A comparison of earlier life expectancy data illustrates one 

of the problems facing the Indian Health Service in eliminating disparities. In 1976, the life 

expectancy for Native Americans was 65.1 years, compared with 70.8 years for other 

Americans.9

 Consequently, while life expectancy for Native Americans has improved by six 

years, the difference in life expectancy relative to other Americans has changed very little. 

Another problem facing health care providers is the increasing importance of the behavioral 

component of health status. During the October briefing, Dr. Perez explained that fully seven of 

the top 10 causes of the high morbidity and mortality rates are “directly related to, or 

significantly affected by individual behavior and lifestyle choices.”10 

The following is a discussion of the specific health disparities suffered by Native 

Americans in contrast to other Unites States populations, including white and minority 

populations.11 Information on the health status and outcomes of individual tribes is presented 

when it is illustrative of the existence of similar disparities throughout the Native American 

community. Incidence, prevalence, morbidity, or mortality rates of diseases and health 

 

7 A Bill to Reauthorize the Indian Health Care Improvement Act and H.R. 2440, Indian Health Care Improvement 

Act Amendments of 2003: Joint Hearing Before the Senate Committee on Indian Affairs and the House Resources 

Committee, Office of Native American and Insular Affairs, 108th Cong. (2003) (statement of Dr. Charles W. Grim, 

director, Indian Health Service). See also H.R. 2440, Indian Health Care Improvement Act Amendments of 2003. 

8

 U.S. Department of Health and Human Services, Assistant Secretary for Legislation, “Testimony of David Satcher, 

Assistant Secretary for Health and Surgeon General of the U.S. Public Health Service, U.S. Department of Health 

and Social [sic] Services, Before the House Commerce Committee, Subcommittee on Health and Environment,” 

May 11, 2000, <http://www.hhs.gov/asl/testify/t000511a.html> (last accessed July 15, 2003) (hereafter cited as 

HHS, “Satcher Testimony”). For 1996–98, the actual life expectancy figures are 70.6 years for Native Americans 

and 76.5 years for all U.S. races. See Indian Health Service, Facts on Indian Health Disparities, September 2002. 

9

 S. Rep. No. 94-1194, at 15 (1976), reprinted in 1976 U.S.C.C.A.N. 2655. 

10 Perez Testimony, Briefing Transcript, p. 19. 

11 The Department of Health and Human Services defines a health disparity as “a population-specific difference in 

the presence of disease, health outcomes, or access to care.” U.S. Department of Health and Human Services, Health 

Resources and Services Administration, Bureau of Primary Health Care, “Current Needs and Current Issues in 

Minority Health Research,” UNC 7th Annual Summer Public Health Research Institute on Minority Health, June 18, 

2001, <http://www.cmh.pitt.edu/PPT/H20010614.ppt> (last accessed July 15, 2003) (hereafter cited as HHS, 

“Current Needs”). Federal, state, and local health agencies measure existing health disparities for specific 

populations by a variety of “health status indicators.” Indicators include incidence, prevalence, morbidity, and 

mortality rates for a number of illnesses that relate to a particular segment of the population, as well as maternal and 

infant mortality rates. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, 

National Center for Health Statistics, Healthy People 2000—Statistical Notes: Trends in Racial and Ethnic-Specific 

Rates for the Health Status Indicators: United States, 1990–98, January 2002, p. 1 (hereafter cited as CDC, Trends 

in Racial and Ethnic-Specific Rates). 
Staff Draft July 2004 9

conditions are used to examine and measure those public health issues that are disproportionately 

affecting Native Americans.12 

Diabetes 

Diabetes is one of the most serious health challenges facing Native Americans, resulting 

in significant morbidity and mortality rates.13 In fact, American Indians and Alaska Natives have 

some of the highest rates of diabetes in the world, with more than half of the adult population in 

some communities having the disease.14 The National Institute of Diabetes & Digestive & 

Kidney Diseases defines diabetes mellitus as a group of diseases characterized by high blood 

levels of glucose stemming from defective insulin secretion and/or action.15 Most Native 

Americans with diabetes have Type 2 diabetes, also known as adult onset diabetes, which is 

caused by the body’s resistance to the action of insulin and impaired insulin secretion. In fact, 

Native Americans have the highest prevalence of Type 2 diabetes in the world, and rates are 

increasing at “almost epidemic proportions.”16 Fortunately, Type 2 diabetes can be managed with 

healthy eating, physical activity, oral medication, and/or injected insulin.17 Moreover, Dr. Perez 

 

12 “Incidence is the number of cases of disease having their onset during a prescribed period of time. It is often 

expressed as a rate (for example, the incidence of measles per 1,000 children 5–15 years of age during a specified 

year). Incidence is a measure of morbidity or other events that occur within a specified period of time.” U.S. 

Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health 

Statistics, “Incidence,” NCHS Definitions, Aug. 21, 2002, <http://www.cdc.gov/nchs/datawh/nchsdefs/incidence.htm> 

(last accessed Sept. 20, 2003). 

“Prevalence is the number of cases of a disease, infected persons, or persons with some other attribute during a 

particular interval of time. It is often expressed as a rate (for example, the prevalence of diabetes per 1,000 persons 

during a year).” U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, 

National Center for Health Statistics, “Prevalence,” NCHS Definitions, Aug. 23, 2002, <http://www.cdc.gov/nchs/ 

datawh/nchsdefs/prevalence.htm> (last accessed Sept. 20, 2003). 

The mortality rate is defined as the total or crude death rate from all causes, usually expressed as deaths per 1,000. A 

disease-specific mortality rate includes those deaths due to one disease and is usually reported per 100,000 persons. 

The population can be defined by sex, age, or other factors. University of Kansas Medical Center, <http://www. 

kumc.edu/instruction/medicine/pathology/ed/keywords/kw_mortalit.html> (last accessed Sept. 20, 2003). 

The morbidity rate is defined as “[a]n incidence rate used to include all persons in the population under consideration 

who become clinically ill during the period of time stated. The population may be limited to a specific sex, age 

group or those with certain other characteristics.” University of Kansas Medical Center, <http://www.kumc.edu/ 

instruction/medicine/pathology/ed/keywords/kw_morbidit.html> (last accessed Sept. 20, 2003). 

13 U.S. National Institute of Diabetes & Digestive & Kidney Diseases of the National Institutes of Health, “Diabetes 

in American Indians and Alaskan Natives,” NIDDK National Diabetes Information Clearinghouse, <http://www. 

niddk.nih.gov/health/diabetes/pubs/amindian/amindian.htm> (last accessed July 15, 2003) (hereafter cited as 

NIDDK, “Diabetes in American Indians”). See also Jack Trope, president, and Dee Ann DeRoin, M.D., board 

member, Association of American Indian Affairs, telephone interview, July 15, 2003 (hereafter cited as Trope and 

DeRoin interview). 

14 Yvette Roubideaux, MD, MPH, et al., “Measuring the Quality of Diabetes Care for Older American Indians and 

Alaska Natives, American Journal of Public Health, vol. 94, no. 1, 2004, p. 60. 

15 NIDDK, “Diabetes in American Indians.” See also Trope and DeRoin interview. 16 Perez Testimony, Briefing Transcript, p. 18. 

17 NIDDK, “Diabetes in American Indians.” See also Trope and DeRoin interview. 
Staff Draft July 2004 10

testified that one of the most distressing aspects of Type 2 diabetes is that with lifestyle changes 

it is largely preventable.18 

Despite the fact that the rates of diabetes in the Native American community are 

“staggering,” the rates do not paint a true picture of how devastating the disease can really be, 

according to Dr. Dee Ann DeRoin, board member of the Association of American Indian 

Affairs.19 Hidden in the fact that the leading cause of mortality in the Native American 

community is heart disease, is the lesser known fact that the largest percentage of deaths from 

heart disease is caused by diabetes.20 Thus, diabetes is both devastating the community in terms 

of quality of life and “maiming and killing” Native Americans.21 Though discussed in detail in a 

later chapter, a preview of funding for diabetes provides yet another measure of the impact of 

diabetes. According to the IHS FY 2005 Budget Justification, the average economic burden for 

one person with diabetes is $13,243 per year. Treating diabetes for only those Native Americans 

who are currently diagnosed with diabetes would amount to $1.46 billion per year, or 40 percent 

of the total budget for Native American health care.22 

Another startling fact regarding the prevalence of Type 2 diabetes is that it has recently 

become a significant threat to Native American children.23 Its incidence is rising faster among 

Native American children and young adults than any other ethnic population.24 IHS has 

documented a 54 percent increase in the prevalence of diagnosed diabetes among Native 

American youth 15 to 19 years of age since 1996.25 Historically, Type 2 diabetes has been 

restricted to adults, at least partially as a result of declining insulin sensitivity with age.26 Its 

presence among children foreshadows the early arrival of more serious complications.27

Other national health care authorities have expressed concern about the challenges that 

diabetes presents for Native Americans of all ages. In 2000, Dr. David Satcher, the Surgeon 

General of the United States, testified that “the diabetes rate for American Indians and Alaska 

Natives is more than twice that for whites. The Pima [American Indians] of Arizona have one of 

 

18 Perez Testimony, Briefing Transcript, p. 18. 

19 Trope and DeRoin interview. 

20 According to the National Healthcare Disparities Report, diabetes is the leading cause of blindness, nontraumatic 

lower extremity amputation and end stage renal disease and increases the risk of heart disease, stroke, neuropathy, 

and complications of pregnancy. See U.S. Department of Health and Human Services, Agency for Healthcare 

Research and Quality, National Healthcare Disparities Report, December 2003, p. 45 (hereafter cited as HHS,

National Healthcare Disparities Report). 21 Trope and DeRoin interview. 

22 U.S. Department of Health and Human Services, Fiscal Year 2005 Indian Health Service Justification of 

Estimates for Appropriations Committees, p. IHS-146. 

23 American Academy of Pediatrics, “Significant Health Disparities Threaten American Indian Children and Youth,” 

press release, Aug. 1, 2002, <http://www.aap.org/advocacy/washing/american_indian.htm> (last accessed Sept. 24, 

2003) (hereafter cited as American Academy of Pediatrics, “Significant Health Disparities”). 

24 Perez Testimony, Briefing Transcript, p. 18. 

25 American Academy of Pediatrics, “Significant Health Disparities.” 26 Mayo Clinic, “Mayo Clinic Study Finds People Over 40 Need Frequent Exercise to Prevent or Treat Type 2 

Diabetes,” news release, Aug. 15, 2003, <http://www.mayoclinic.org/news2003-rst/1911.html> (last accessed Aug. 

22, 2003). 

27 Perez Testimony, Briefing Transcript, p. 18. 
Staff Draft July 2004 11

the highest rates of diabetes in the world.”28 Furthermore, the National Institute of Diabetes & 

Digestive & Kidney Diseases (NIDDK) estimates that approximately 15 percent of Native 

Americans who receive health care from IHS have diabetes.29 Native Americans are 2.6 times 

more likely to be diagnosed with diabetes than non-Hispanic whites of a similar age.30 As 

troubling as these numbers are, they may understate the number of Native Americans with 

diabetes. In a screening study conducted in three geographic areas, NIDDK found that 40 to 70 

percent of Native American adults between the ages 45 and 74 have diabetes, many previously 

undiagnosed. Data from the Navajo Health and Nutrition Survey showed that 22.9 percent of 

Navajo adults ages 20 and older had diabetes. At least 14 percent had a history of diabetes, but 

another 7 percent were found to have undiagnosed diabetes during the survey.31 

Although measures can be taken to reduce the likelihood of disability and death from 

diabetes, the disease is still associated with serious health complications and premature death.32

From 1994 through 1996, the IHS age-adjusted death rates for diabetes mellitus were 350 

percent greater than the rates for the rest of the American population.33 To erase this disparity, 

Dr. Perez emphasized the prevention of diabetes as a way of eliminating costly treatment 

options, in addition to reducing the disease burden from the suffering population.34

Tuberculosis 

Although the tuberculosis rate among Native Americans is declining, it continues to 

disproportionately affect this population in the number of cases and severity of disease.35

Tuberculosis is an airborne disease, frequently occurring among people living close together, 

with poor ventilation, a demographic disproportionately populated by Native Americans.36 The 

American Lung Association reported that in 1998, the incidence rate of tuberculosis among 

Native Americans was 12.6 cases per 100,000 persons, which was more than five times the rate 

of 2.3 for non-Hispanic whites.37 By 2002, the tuberculosis incidence rate had dropped to 7 cases 

 

28 HHS, “Satcher Testimony.” 

29 NIDDK, “Diabetes in American Indians.” 

30 Ibid. See also Perez Testimony, Briefing Transcript, p. 18. 31 NIDDK, “Diabetes in American Indians.” 

32 American Academy of Pediatrics, “Significant Health Disparities.” 

33 IHS, Trends in Indian Health 1998–99. 34 Perez Testimony, Briefing Transcript, p. 19. 

35 Jay C. Butler et al., “Emerging Infectious Diseases Among Indigenous Peoples,” Emerging Infectious Diseases, 

vol. 7, no. 3 supplement, June 2001, p. 554 (hereafter cited as Butler, “Emerging Infectious Diseases”). 36 Center on Child Abuse and Neglect, “Native Americans and HIV/AIDS,” March 2000, p. 3, <http://w3.ouhsc. 

edu/ccan/AIDS.pdf> (last accessed Feb. 9, 2004). 

37 American Lung Association, “American Indians/Alaskan Natives and Lung Disease,” fact sheet, September 2000, 

<http://www.lungusa.org/diseases/nativelung_factsheet.html> (last accessed Sept. 20, 2003). 
Staff Draft July 2004 12

per 100,000,38 approximately twice that of the overall U.S. population, though mortality rates 

remain six times higher.39 

Mental Health 

Native Americans are at a higher risk for mental health disorders than other racial and 

ethnic groups in the United States,40 and are consistently overrepresented among high-need 

populations for mental health services.41 The Surgeon General reported that this 

overrepresentation might be attributed to the high rates of homelessness, incarceration, alcohol 

and drug abuse, and stress and trauma in Native American populations.42 The Surgeon General’s 

report further indicated that the U.S. mental health system is not well equipped to meet these 

needs; more specifically, IHS is mostly limited to basic psychiatric emergency care, due to 

budget constraints and personnel problems.43 According to Dr. Jon Perez, IHS does not provide 

ongoing, quality psychiatric care.44 Instead, the approach adopted by IHS is one of responding to 

immediate mental health crises and stabilizing patients until their next episode.45

The most significant mental health concerns today are the high prevalence of substance 

abuse, depression, anxiety, violence, and suicide.46 Substance abuse, most notably alcoholism, 

has been the most visible health disorder crisis.47 Depression is also a disorder emerging as a 

dominant concern.48 These two illnesses are commonly attributed to isolation on distant 

 

38 Centers for Disease Control and Prevention, National Center for HIV, STD, and TB Prevention, “Reported 

Tuberculosis in the United States, 2002,” Executive Summary, p. 2, <http://www.cdc.gov/nchstp/tb/surv/ 

surv2002/default.htm> (last accessed Feb. 9, 2004). 

39 Butler, “Emerging Infectious Diseases,” p. 554. 

40 See S. Nelson et al., “An Overview of Mental Health Services for American Indians and Alaska Natives in the 

1990s,” Hospital and Community Psychiatry, vol. 43, 1992, pp. 257–61. See also USCCR, The Health Care 

Challenge, p. 46. 

41 High-need populations include the following: people who are homeless, people who are incarcerated, people 

exposed to trauma, and people with drug and alcohol problems. See U.S. Department of Health and Human 

Services, Office of the Surgeon General, Substance Abuse and Mental Health Services Administration, “Culture, 

Race, and Ethnicity—A Supplement to Mental Health: A Report of the Surgeon General,” fact sheet, 

<http://www.surgeongeneral.gov/library/mentalhealth/cre/fact4.asp> (last accessed July 15, 2003). 

42 Ibid. 

43 Judy Nichols, “Special Report—Part 2, Indian Health Care: Critical Condition,” Arizona Republic, July 21, 2002 

<http://www.azcentral.com/news/specials/indianhealth/0721hospital21.html> (last accessed Sept. 24, 2003). 

44 Jon Perez, director of behavioral health, Indian Health Service, interview in Rockville, MD, July 21, 2003 

(hereafter cited as Perez interview). 

45 Ibid. 

46 See U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services 

Administration, Center for Mental Health Services, “Cultural Competence Standards in Managed Care Mental 

Health Services: Four Underserved/Underrepresented Racial/Ethnic Groups,” Introduction, <http://www.mental 

health.org/publications/allpubs/SMA00-3457/intro.asp> (last accessed Sept. 15, 2003). 47 See, e.g., Kay Culbertson, executive director, Denver Indian Health and Family Services, telephone interview, 

Sept. 3, 2003; Emery Johnson, interview in Silver Spring, MD, Aug. 8, 2003; Ralph Forquera, executive director, 

Seattle Indian Health Board, telephone interview, Aug. 27, 2003; Perez interview. 

48 Perez interview. 
Staff Draft July 2004 13

reservations, pervasive poverty, hopelessness, and intergenerational trauma, including the 

historic attempts by the federal government to forcibly assimilate tribes.49 

Alcohol abuse is widespread in Native American communities. Native Americans use 

and abuse alcohol and other drugs at younger ages, and at higher rates, than all other ethnic 

groups.50 Consequently, their age-adjusted alcohol-related mortality rate is 5.3 times greater than 

that of the general population.51 The Department of Health and Human Services, Substance 

Abuse and Mental Health Services Administration’s National Household Survey on Drug Abuse

reported the following for 1997: 

19.8 percent of Native Americans ages 12 and older reported using illegal drugs 

that year, compared with 11.9 percent for the total U.S. population. Native 

Americans had the highest prevalence rates of marijuana and cocaine use, in 

addition to the need for drug abuse treatment.52

As identified earlier, depression is the most serious emerging mental health disorder in 

the Native American population. One of the more troubling indicators of the toll it takes on 

Native Americans is reflected in suicide rates. The suicide rate for Native Americans continues 

to escalate and is 190 percent of the rate of the general population. According to the IHS FY 

2005 Budget Justification, the highest suicide rate for the general population is found among 

individuals 74 and older. Among Native Americans, the highest suicide rate is found in the 15-

year-old to 34-year-old age range.53 In fact, suicide is the second leading cause of death for 

Native Americans 15 to 24 years old and the third leading cause of death for Native American 

children 5 to 14 years old.54 Recent data from the American Academy of Pediatrics indicate that 

in 2002 the youth suicide rate for Native Americans was twice as great among 14- to 24-yearolds, and three times as great among 5- to 10-year-olds, as it was in the general population.55

 

49 Perez interview. See also S. Rep. No. 94-1194, at 69 (1976), reprinted in 1976 U.S.C.C.A.N. 2707. 

Alcoholism in Indians has many underlying causes. It is a means of coping with feelings of anger, 

frustration or boredom, all of which are related to the comparably low position in which many 

Indians find themselves today. Inferiority feelings about their lack of education, meaningful 

employment, status and economic autonomy too often are expressed in excessive drinking. 

See also Kevin Gover, Assistant Secretary for Indian Affairs, Department of the Interior (speech 

Acknowledging the 175th Anniversary of the Establishment of the Bureau of Indian Affairs, Washington, 

DC, Sept. 8, 2000). “[The] trauma of shame, fear, and anger has passed from one generation to the next, 

and manifests itself in the rampant alcoholism, drug abuse, and domestic violence that plague Indian 

Country.”

50 U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 

Center for Substance Abuse Treatment, Cultural Issues in Substance Abuse Treatment, 1999. 

51 Ibid. 

52 U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 

National Clearinghouse for Alcohol & Drug Information, “Drug Use Among Native Americans Is Higher than Other 

Racial/Ethnic Groups,” The NCADI Reporter, Oct. 29, 1998, <http://www.health.org/newsroom/rep/95.aspx> (last 

accessed July 15, 2003). See also CDC, Trends in Racial and Ethnic-Specific Rates, p. 11 (between 1990 and 1998, 

the lung cancer death rate for American Indian and Alaska Natives increased 28 percent). 

53 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-60. 54 IHS, Trends in Indian Health 1998–99, p. 66. 55 American Academy of Pediatrics, “Significant Health Disparities.” 
Staff Draft July 2004 14

Despite a significant demand for mental health services, there are approximately 101 

mental health professionals available per 100,000 Native Americans, compared with 173 mental 

health personnel per 100,000 whites.56 With a greater need for mental health specialists, but 

fewer available for treatment, Native Americans frequently go without the necessary care for 

substance abuse, depression, anxiety, suicide ideations, and other mental health conditions. 

Unintentional Injuries 

Public health authorities consider death and disabilities from unintentional injuries as 

safety issues affecting all Americans.57 During the October briefing, Dr. Jon Perez identified 

unintentional injuries as an issue of particular concern for Native Americans.58 In fact, 

unintentional injuries are the leading cause of death for Native Americans under the age of 44 

and the third leading cause of death overall.59 The age-adjusted injury death rate for Native 

Americans is approximately 250 percent higher than that for the total U.S. population.60

Moreover, Native Americans suffer injuries at rates 1.5 to 5 times the rates for other 

Americans.61 In real terms, this translates to more than 1,300 deaths and more than 10,000 

hospitalizations each year for more than 50,000 days of medical care.62 Outpatient clinics treat an 

additional 330,000 for injuries.63 The financial cost of treating these injuries is correspondingly 

high. Each year IHS spends more than $150 million to treat those suffering from unintentional 

injuries.64 Injuries result in 46 percent of all Years of Potential Life Lost (YPLL) for Native 

Americans.65 This is five times greater than the YPLL due to the next highest cause, heart 

disease (8 percent).66

 

56 U.S. Department of Health and Human Services, Office of the Surgeon General, Substance Abuse and Mental Health 

Services Administration, “Culture, Race, and Ethnicity—A Supplement to Mental Health: A Report of the Surgeon 

General,” fact sheet, <http://www.surgeongeneral.gov/library/mentalhealth/cre/fact4.asp> (last accessed July 15, 2003). 

57 Association of Schools of Public Health, “The Population Approach to Public Health,” Apr. 7, 2003, 

<http://www.asph.org/print.cfm?page=724> (last accessed Sept. 20, 2003). 58 Perez Testimony, Briefing Transcript, p. 17. 

59 Indian Health Service, “Injuries,” IHS Health and Heritage Brochure—Health Disparities, <http://www. 

info.ihs.gov> (last accessed Sept. 26, 2003) (hereafter cited as IHS, “Injuries,” IHS Health and Heritage Brochure). 

The causes of death include unintentional motor vehicle crashes, unintentional pedestrian events, firearm use, 

unintentional drowning, and unintentional fire. See Centers for Disease Control and Prevention, Morbidity and 

Mortality Weekly Report, vol. 52, no. 30, Aug. 1, 2003, p. 698. 

60 U.S. Department of Health and Human Services, Healthy People 2010, vol. 2, ch. 15, November 2000 (hereafter 

cited as HHS, Healthy People 2010). 61 IHS, “Injuries,” IHS Health and Heritage Brochure. 62 HHS, Healthy People 2010. 

63 Ibid. 

64 IHS, “Injuries,” IHS Health and Heritage Brochure. 

65 HHS, Healthy People 2010, ch. 15. Years of Potential Life Lost is a measure of premature mortality. It is 

calculated using the numbers of deaths in each age group and the difference between the midpoint of the age group 

and the average life expectancy. See U.S. Department of Health and Human Services, Centers for Disease Control 

and Prevention, National Center for Health Statistics, “Years of Potential Life Lost,” NCHS Definitions, 

<http://www.cdc.gov/ nchs/datawh/nchsdefs/yearsofpotentiallifelost.htm> (last accessed Dec. 19, 2003). 66 U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, “Healthy People 

2010,” Chapter 15 Injury and Violence Prevention, <http://www.healthypeople.gov/document/html/volume2/ 

15injury. htm#_Toc490549385> (last accessed Nov. 20, 2003). 
Staff Draft July 2004 15

Older statistics further subdivide the unintentional injuries category, without obscuring the 

disparities. From 1985 to 1996 five causes of injury stand out as significant: 

• 1,484 Native American children died in motor vehicle crashes, twice the rate for white 

children. Death rates for the Billings, Navajo, and Aberdeen IHS Areas67 were more than 

three times greater than national rates. 

• 367 Native American children died in pedestrian-related motor vehicle crashes, three 

times the rate for white children. Death rates for the Albuquerque, Navajo, and Tucson 

Areas were more than five times greater than national rates. 

• 276 Native American children drowned, twice the rate for white children. Death rates for 

the Billings, Navajo, and Aberdeen Areas were more than three times greater than 

national rates. Death rates for the Alaska Area were more than six times greater than the 

national rate. 

• 224 Native American children died from fire-related injuries, three times the rate for 

white children. Death rates for the Aberdeen, Alaska, and Bemidji Areas were five times 

greater than national rates. 

• 449 Native American children committed suicide, two and one-half times the rate for 

white children. Death rates for the Aberdeen, Alaska, and Tucson Areas were more than 

five to six times greater than national rates.68 

 Major Cardiovascular Diseases 

In the past, heart disease and strokes were rare among Native Americans, but recently 

heart disease has become the number one cause of death; stroke is now the fifth leading cause of 

death, and the rates are increasing.69 This dramatic increase appears as the general population has 

experienced a 50 percent decrease in heart disease; thus, Native Americans now have 

cardiovascular disease rates twice that of the general population.70 These soaring rates can be 

traced to the high rates of diabetes, high blood pressure, and the presence of other risk factors, 

including poor eating habits and sedentary lifestyles.71 At least part of the increase may be 

 

67 The Indian Health Service is organized into 12 regional administrative units called “area offices.” Each area office 

provides administrative support, to include distributing funds, monitoring programs, evaluating activities, and 

providing technical support to the hospitals, clinics, and other facilities. See Indian Health Service, “Indian Health 

Service Introduction,” <http://www.ihs.gov/PublicInfo/PublicAffairs/Welcome_Info/IHSintro.asp> (last accessed 

July 15, 2003). 

68 Eric B. Broderick, Quantifying the Unmet Need in IHS/Tribal EMS: A Project funded by the Office of Program 

Planning and Evaluation, Office of Public Health, IHS Headquarters, 1999–2001, pp. 9–10. 

69 Indian Health Service, “Heart Disease & Strokes,” IHS Health and Heritage Brochure—Health Disparities, 

<http://www.info.ihs.gov> (last accessed Sept. 26, 2003). This jump in heart disease and stroke is attributed to the 

gradual improvement of health care for Native Americans. According to Dr. Grim, “the health of Indian Country has 

changed from one of disease and illness to one of primarily chronic conditions influenced strongly by behavioral and 

lifestyle issues. See Dr. Charles W. Grim, “Eliminating Disparities Is More Than an Access Issue” (remarks before 

the Association of American Indian Physicians, Santa Fe, NM, Aug. 4, 2003) <http://www.ihs.gov/PublicInfo/ 

PublicAffairs/Director/2003_Statements/FINAL-AAIP_August_2003.pdf> (last accessed Dec. 19, 2003). 

70 Ibid. 

71 Trope and DeRoin interview. 
Staff Draft July 2004 16

attributed to an increase in life expectancy. “In 1950, life expectancy for American Indians was 

30 years less than for whites. They didn’t live long enough to be at risk.”72

The incidence rates for strokes show similar potential for future problems. Though the 

death rate for strokes remains lower for Native Americans than the national death rate (39.7 and 

61.8, respectively), at lower age brackets the risk is as much as two times higher for Native 

Americans.73 As the Native American population continues to live longer the incidence rates for 

stroke will undoubtedly rise. 

The Centers for Disease Control and Prevention conducted a national telephone survey to 

determine the extent that risk factors for heart disease and stroke (i.e., high blood pressure, 

current cigarette smoking, high cholesterol, obesity, and diabetes) were present in the Native 

American population. According to the survey, 63.7 percent of Native American men and 61.4 

percent of Native American women reported having one or more of the surveyed risk factors. 

The following specific risk factors were reported in significantly high percentages: 

• 21 percent of men and 23 percent of women said they had been told by a health 

professional that they had high blood pressure. 

• 32.8 percent of men and 28.8 percent of women reported that they were current 

smokers.74

• Almost 16 percent of respondents had been told by a health care professional that they 

had high cholesterol and more than 7 percent were told that they had diabetes. 

• Almost a fourth of the male respondents (23.6 percent) and nearly one-fifth of the 

females (19.1 percent) were obese (21.5 percent of all Native Americans).75

The CDC also observed that having more than one risk factor for heart disease and stroke 

was more common among older Native American men and women and several other categories 

where Native Americans are disproportionately represented, including the unemployed, those 

with less education, and those reporting their health status as fair or poor.76 Unless something is 

 

72 Lois Baker, “Native Americans: Cancer a Growing Health Concern,” SUNY Buffalo Reporter, Jan. 30, 1997, 

<http://www.buffalo.edu/reporter/vol28/vol28n18/n1.html> (last accessed Feb. 10, 2004). 73 For ages 35–44 the relative risk is 2 times greater; ages 45–54 1.3 times greater; and for ages 55–64 it is 1.5 times 

greater. See American Heart Association, Bio-statistical Fact Sheet, 2002, p. 2. 

74 Native Americans have the highest rates of smoking in adults among all ethnic groups. See U.S. Department of 

Health and Human Services, “Healthy People 2010: Understanding and Improving Health,” November 2000, p. 31, 

<http://www.healthypeople.gov/Document/tableofcontents.htm#under> (last accessed Feb. 9, 2004). 

75 U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Office of 

Communication, “Facts About Heart Disease and Stroke Among American Indians and Alaska Natives,” Media 

Relations, June 2, 2000, <http://www.cdc.gov/od/oc/media/pressrel/r2k0602.htm> (last accessed July 15, 2003) 

(hereafter cited as CDC, “Facts About Heart Disease and Stroke”). See also Georgetown University Center for Child 

and Human Development, University Center for Excellence in Developmental Disabilities, National Center for 

Cultural Competence, “Rationale for Cultural Competence in Primary Health Care,” Policy Brief 1, 

<http://www.georgetown.edu/research/gucdc/nccc/nccc6.html> (last accessed July 15, 2003) (hereafter cited as 

Georgetown University, “Rationale for Cultural Competence”) (only 50 percent of Native Americans, 44 percent of 

Asian Americans and 38 percent of Mexican Americans have had their cholesterol checked within the past two 

years). 

76 CDC, “Facts About Heart Disease and Stroke.” 
Staff Draft July 2004 17

changed immediately, cardiovascular disease rates will increase significantly for the aging 

Native American population.77

Pneumonia and Influenza 

From 1994 through 1996, the Indian Health Service estimated that the age-adjusted death 

rate from pneumonia and influenza for Native Americans was 71 percent greater than the rate for 

the entire U.S. population.78 In 1998, Native American patients hospitalized for pneumonia 

accounted for the greatest number of hospital discharges for elderly Medicare beneficiaries (49.3 

per 1,000 discharges) in the entire U.S. population.79

Cancer

Cancer among Native Americans is a growing concern.80 While statistics indicate lower 

cancer incidence and mortality rates for Native Americans than for whites, African Americans, 

Asians, and other races, it has become the leading cause of death for Alaska Native women and 

is the second leading cause of death among Native American women.81 An additional concern is 

the relative comparison of incidence and mortality rates. Although cancer incidence rates are 

significantly lower for Native Americans (incidence rates for Native Americans are half the rates 

for whites and less than all other races), cancer death rates are considerably closer (death rates 

for Native Americans are 70 percent of the rates for whites and greater than the rates for 

Hispanics/Latinos and Asian/Pacific Islanders). Therefore, the ratio of cancer deaths to new 

 

77 Dr. Charles W. Grim, “Eliminating Disparities Is More Than an Access Issue” (remarks before the Association of 

American Indian Physicians, Aug. 4, 2003), <http://www.ihs.gov/PublicInfo/PublicAffairs/Director/2003_ 

Statements/FINAL-AAIP_August_2003.pdf> (last accessed Dec. 19, 2003). 

78 IHS, Trends in Indian Health 1998–99. This rate for influenza may be significant since influenza can be 

particularly severe among diabetic patients. U.S. Department of Health and Human Service, Agency for Healthcare 

Research and Quality, “National Healthcare Disparities Report: 4. Management of Chronic Diseases Presents 

Unique Challenges,” <http://www.ahcpr.gov/qual/nhdr03/nhdrsum03.htm> (last accessed Dec. 31, 2003). 79 Paul W. Eggers, Ph.D., and Linda G. Greenberg, Ph.D., “Racial and Ethnic Differences in Hospitalization Rates 

Among Aged Medicare Beneficiaries, 1998,” Health Care Financing Review, Summer 2000, <http://www.cms.hhs. 

gov/ review/00summer/eggers.pdf> (last accessed July 15, 2003). In comparison, the number of hospital discharges 

per 1,000 for other racial/ethnic groups, due to pneumonia, included: whites, 22.1; blacks, 22.4; Hispanics, 25.3; and 

Asians, 17.1. 

80 Native American Cancer Research Corporation, “Native Americans and Cancer,” <http://members.aol.com/ 

natamcan/nativeca.htm> (last accessed Dec. 31, 2003). 

81 Centers for Disease Control, “Cancer Mortality Among American Indians and Alaska Natives—United States, 

1994–1998,” Morbidity and Mortality Weekly Report, Aug. 1, 2003, <http://www.cdc.gov/mmwr/preview/mmwrhtml/ 

mm5230a4.htm> (last accessed Sept. 23, 2003); Native American Cancer Research Corporation, “Native Americans 

and Cancer,” <http://members.aol.com/natamcan/nativeca.htm> (last accessed Dec. 31, 2003). The cancer mortality 

rate for Native Americans was lower during 1989 through 1993, as compared with the rate for the overall U.S. 

population. Similarly, for the period 1996 through 2000, Native Americans also experienced one of the lowest 

mortality rates from invasive cancers (138 deaths per 100,000 persons), compared with other racial and ethnic 

groups: blacks (257.1), whites (199.1), Hispanics (137.9), and Asian/Pacific Islanders (124.5). Centers for Disease 

Control, “Cancer Mortality Among American Indians and Alaska Natives—United States, 1994–1998,” Morbidity 

and Mortality Weekly Report, Aug. 1, 2003, <http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5230a4.htm> (last 

accessed Sept. 23, 2003). 
Staff Draft July 2004 18

cancer cases is higher for Native Americans than the ratios for all other races.82 The startling 

conclusion is that Native Americans have the poorest cancer survival rates among any racial 

group in the United States.83 

Furthermore, among health care professionals there is concern that lower mortality rates 

obscure important regional and cancer-specific differences in mortality, knowledge of which 

could assist local cancer prevention and treatment strategies.84 Specifically, higher rates of 

cancer mortality appeared in Alaska and the Northern Plains region of the United States from 

1994 through 1998, with 217.9 and 238.6 deaths per 100,000, respectively.85 The overall cancer 

mortality rate for the rest of the United States for this period was 164.2 deaths per 100,000.86

These Native American cancer mortality rates in Alaska and the Northern Plains region are 

attributed to colorectal, gallbladder, kidney, liver, lung, and stomach cancers.87 Similarly, 

cervical cancer mortality rates were higher among Native Americans than among all racial and 

ethnic populations (3.7 and 2.6, respectively), especially in the East and Northern Plains regions 

of the United States.88

Though limited data are available, there is insufficient research on cancer among Native 

Americans.89 Even with limited data, experts have suggested that Native American cancer 

patients experience the disease differently from other non-Native populations.90 Some of the 

factors contributing to this include genetic risk factors; late detection of cancer; poor compliance 

with recommended treatment; presence of concomitant disease; and lack of timely access to 

diagnostic and/or treatment methods.91 Accordingly, additional research must be conducted to 

more fully explore cancer disparities among Native Americans. 

 

82 National Cancer Institute, “Cancer Health Disparities,” Apr. 23, 2003, <http://www.cancer.gov/newscenter/ 

healthdisparities> (last accessed Feb. 10, 2004). 

83 Native American Cancer Initiative, Inc., “Native American Cancer Research,” Chapter 1: Introduction and 

Background, <http://members.aol.com/natamcan2/cha01.htm> (last accessed Dec. 31, 2003). 

84 American Public Health Association, “Abstract #55992: Regional Patterns of Cancer Mortality in American 

Indians and Alaska Natives in the U.S., 1994–1998,” <http://apha.confex.com/apha/131am/techprogram/paper_ 

55992.htm> (last accessed Sept. 23, 2003) (hereafter cited as American Public Health Association, “Regional 

Patterns of Cancer Mortality”) (David King Espey, M.D., an IHS cancer epidemiologist in Albuquerque, New 

Mexico, presented his study on regional cancer mortality rates in American Indians and Alaska Natives, before the 

annual meeting of the American Public Health Association in November 2003). 

85 American Public Health Association, “Regional Patterns of Cancer Mortality.” See also Associated Press State & 

Local Wire, “CDC: Indians in Upper Midwest Have Higher Rates of Cancer Deaths,” Aug. 1, 2003, BC Cycle (the 

Northern Plains region includes Indiana, Iowa, Michigan, Minnesota, Montana, Nebraska, North and South Dakota, 

and Wyoming). 

86 American Public Health Association, “Regional Patterns of Cancer Mortality.” 87 Ibid. See also HHS, National Healthcare Disparities Report, p. 39. 

88 Centers for Disease Control, “Cancer Mortality Among American Indians and Alaska Natives—United States, 

1994–1998,” Morbidity and Mortality Weekly Report, Aug. 1, 2003, <http://www.cdc.gov/mmwr/preview/mmwr 

html/mm5230a4.htm> (last accessed Sept. 23, 2003). See also HHS, National Healthcare Disparities Report, p. 39 

(the East consists of Alabama, Connecticut, Florida, Kansas, Louisiana, Maine, Massachusetts, Mississippi, New 

York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Texas). 

89 Ibid. 

90 Ibid. 

91 Ibid. 
Staff Draft July 2004 19

Infant Mortality and Maternal Health Rates 

Infant mortality and maternal health rates are also considered to be indicators of health 

status for a particular community.92 Historically, Native Americans have suffered inordinately 

high infant mortality rates.93 Despite recent improvement, disparity persists. Native American 

infants continue to die at a rate 150 percent greater than the rate for white infants.94 Moreover, 

Georgetown University’s Center for Child and Human Development, National Center for 

Cultural Competence, reported that for Native Americans, the incidence of sudden infant death 

syndrome (SIDS) is more than three to four times the rate for white infants.95

Not surprisingly, maternal health factors also indicate lower health status. Pregnant 

Native American women are consistently the lowest percentage of women receiving early 

prenatal care when compared with women of other races and ethnicities. For example, the 

percentage of Native American women receiving early prenatal care was 69 percent in 2000, 

compared with 85 percent of white non-Hispanic women.96

Recent Progress in Resolving Disparities 

The health status of Native Americans confirms the reality that Native Americans have a 

shorter life expectancy and higher rates of disease than the general population. Nevertheless, 

their health status has improved as mentioned above and illustrated in the table below: 

 

92 HHS, “Current Needs.” 

93 CDC, Trends in Racial and Ethnic-Specific Rates (between 1990 and 1998 the infant mortality rate for infants of 

American Indian and Alaska Native women declined by 29 percent). 

94 HHS, National Healthcare Disparities Report, p. 58. See also Henry J. Kaiser Family Foundation, Key Facts: 

Race, Ethnicity & Medical Care, June 2003 Update, p. 9, listing infant mortality rates by age, ethnicity, and 

education level of mother. 

95 Georgetown University, “Rationale for Cultural Competence.” 

96 HHS, National Healthcare Disparities Report, p. 57. These numbers are up slightly from 1995 when the 

percentage of Native American women receiving early prenatal care was 66.7 percent, compared with 83.6 percent 

of white non-Hispanic women. See Food Research and Action Center, “WIC in Native American Communities: 

Building a Healthier America,” Report Summary, 2000, <http://www.frac.org/html/publications/wic01summary. 

pdf> (last accessed July 15, 2003). 
Staff Draft July 2004 20

Table 1: Improvements in the Health Status of Native Americans, 1972–1996 

 

Diseases/health conditions Period Age-adjusted 

death rate Period 

Ageadjusted 

death rate 

Injury and poisoning 1972–74 241.7 1994–96 129.7 

Accidents 1972–74 188.0 1994–96 92.6 

Homicides 1972–74 24.3 1994–96 15.3 

Alcoholism* 1972–74 59.0 1994–96 48.7 

Chronic liver disease 1972–74 58.3 1994–96 37.2 

Pneumonia 1972–74 40.8 1994–96 22.0 

Tuberculosis 1972–74 10.5 1994–96 1.9 

Gastrointestinal disease 1972–74 6.2 1994–96 1.7 

 

Health indicators Years Years 

Life expectancy 1972–74 63.5 1994–96 71.1 

Year of potential life lost 1972–74 188.3 1994–96 91.5 

* Alcoholism has been increasing since 1985–87 

Source: Indian Health Service, Trends in Indian Health 1998–99, 

<http://www.ihs.gov/PublicInfo/Publications/trends98/trends98.asp> (last accessed Feb. 10, 2004). 

Most of these improvements may be attributed to increasing access to health care and 

public health efforts to reduce the effects of infectious diseases. In recent years, the rate of 

improvement has diminished considerably as disease patterns have changed.97 Consequently, 

Native Americans stand in a position where health status is improving little relative to other 

racial/ethnic groups and little in real terms, as well. With health status improvement reaching a 

plateau, there is concern that the lower frequency at which Native Americans access care will 

erode the previous health status improvements. The National Healthcare Disparities Report 

revealed that Native Americans have worse access to routine health care, as measured by 

outpatient visits per population, percentage of persons with a dental visit, and percentage of 

persons with prescription medications than the general population.98 Another trend that may 

further erode progress is found in data from IHS. According to IHS, the per capita expenditures 

for Native Americans accessing IHS services is lower than the national average, and IHS users 

are provided service by only half the number of nurses and physicians compared with the 

national average.99

Given that the stated goal of the Indian Health Service is to raise the health status of 

Native Americans and that goals have, at best, met with limited success, accountability becomes 

a significant concern. The starting point for any discussion of accountability for Native American 

health care is defining source and the scope of the federal government’s responsibility to Native 

Americans. 

 

97 Indian Health Service, “Indian Health Service: An Agency Profile,” p. 2, <http://info.ihs.gov/IHSProfile.pdf> (last 

accessed Feb. 10, 2004). 

98 HHS, National Healthcare Disparities Report, p. 134. 

99 Indian Health Service, “The IHS Strategic Plan: Improving the Health of American Indian and Alaska Native 

People Through Collaboration and Innovation,” p. 5. 
Staff Draft July 2004 21

Federal Trust Relationship with Native Americans 

The disparities in health status and outcomes experienced by Native Americans are an 

indictment of the federal government’s commitment to fulfilling its moral and legal obligation to 

provide for the health of Native Americans. This federal obligation is the result of Native 

Americans ceding over 400 million acres of tribal land to the United States pursuant to promises 

and agreements that included providing health care services, among other benefits. This federal 

obligation, from the Native American perspective, was stated very simply by Rebecca Ortega, a 

member of the Pueblo Santa Clara: 

And us mothers and grandmothers, we don’t understand why if we in the treaties . 

. . gave all our land, [and] our land in the United States of America is worth so 

much right now. [W]e feel like how come if we gave all that up, why isn’t our 

health care, why hasn’t it gone up as well.100 

The federal government has a special relationship with Native Americans, commonly 

referred to as a “trust” relationship, requiring the government to protect tribal lands, assets, 

resources, treaty rights, and health care, among other obligations. The legal source of this trust 

obligation, however, is imprecise as the boundaries and duties of the trust relationship have 

evolved over the past two centuries. 

The Articles of Confederation101 contained a general power over Indian affairs, but the 

Constitution enumerates only one power specific to these affairs: the power “[t]o regulate 

Commerce . . . with the Indian tribes.”102 In fact, the entire course of dealings between the 

government and Indian tribes, including various treaties, laws, and hundreds of cases, have all 

been cited as the source of the trust relationship.103 

Nevertheless, the origin of federal Indian trust responsibility is usually traced to judicial 

decisions with subsequent statutory enactments. The first case was Cherokee Nation v. 

Georgia104 in which the Cherokee Nation in 1832 sought to prevent Georgia from extending its 

laws into Cherokee territory. Invoking the original jurisdiction of the Supreme Court, the tribe 

sought to enjoin enforcement of a Georgia statute that gave the state jurisdiction over persons 

residing on the tribe’s land. The Court held that it lacked original jurisdiction because although 

the Cherokees were a distinct “political society,” they were not a “state” as required by Article 

III of the Constitution.105 Rather, the Court concluded that Indian Nations “may, more correctly, 

 

100 Ortega Testimony, Briefing Transcript, p. 363. 

101 “The United States . . . shall also have the sole and exclusive right and power of . . . regulating the trade and 

managing all affairs with the Indians, not members of any of the States provided that the legislative right of any 

State within its own limits be not infringed or violated,” U.S. ARTICLES OF CONFEDERATION art. IX (1777). 102 U.S. CONST. art. I, § 8, cl. 3. 103 Nell Jessup Newton, Enforcing the Federal-Indian Trust Relationship After Mitchell, 31 CATH. U. L. REV. 635, 

637–38 (1982). 

104 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 2 (1831). 

105 U.S. CONST. art. III. Article III of the Constitution provides that “In all cases affecting . . . those in which a state 

shall be party, the Supreme Court shall have original jurisdiction. In all the other cases . . . the Supreme Court shall 

have appellate jurisdiction, both as to law and fact. 
Staff Draft July 2004 22

perhaps, be denominated domestic dependent nations . . . in a state of pupilage.”106 The 

relationship of states to Indian Nations is similar to “that of a ward to his guardian.”107 The 

guardian-ward relationship was subsequently used as a justification for Congress’ power over 

Indian tribes, individuals, and resources. 

The next year the Supreme Court considered the same Georgia statute giving Georgia 

jurisdiction over persons residing on the tribe’s land and recognized the unique self-governing 

status of Indian tribes. In Worcester v. Georgia,108 the Court invalidated the statute, holding that 

Indian tribes are guaranteed protection against interference from the states. The Court held that 

“the Indian nations had always been considered as distinct political communities within which 

their authority is exclusive, guaranteed by the United States.” The Court found that “the settled 

doctrine of the law of nations is, that a weaker power does not surrender its independence—its 

right to self-government, by associating with a stronger, and taking its protection.”109

These two cases, which recognized Indian nations as domestic sovereigns of the United 

States, established the trust relationship between the federal government and Native Americans. 

The cases make clear that only the federal government may negotiate treaties with Indian 

nations. The cases also determine that only the federal government has jurisdiction over the 

Indian nations and as trustee must ensure that the states do not interfere with Indian tribes’ self 

governance or encroach on their land. 

Against this backdrop, Congress continued to enter into treaties and enact laws; the 

Supreme Court continued to define the relationship between tribes and the government. The 

Court reiterated the government’s obligations to Native Americans in Seminole Nation v. United 

States,

110 in which the Court restated the “distinctive obligation of trust incumbent upon the 

Government in its dealings with these dependent and sometimes exploited people.”111 The Court 

held that: 

[I]n carrying out its treaty obligations with the Indian tribes, the Government is 

something more than a mere contracting party. Under a humane and self imposed 

policy which has found expression in many acts of Congress and numerous 

decisions of this Court, it has charged itself with moral obligations of the highest 

responsibility and trust.112

Accordingly, the federal government has accepted many obligations, including 

education, construction, law enforcement, and medical services. This health care 

obligation requires the government to provide medical treatment to all Native Americans 

living in the United States. 

 

106 Cherokee Nation, 30 U.S. (5 Pet.) at 17. The Court, however, noted that the Cherokee Nation held similar status 

to foreign nations in congressional interaction. 

107 Id. 

108 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832). 

109 Worcester, 31 U.S. (6 Pet.) at 560. 

110 Seminole Nation v. United States, 316 U.S. 286 (1942). 

111 Id. at 296. 112 Id. at 296–97. 
Staff Draft July 2004 23

Federal Responsibility for Health Care 

As discussed, the federal government promised health care services to Native Americans 

in exchange for land very early in the life of this country.113 The motive for providing health care 

was not solely altruistic. The government was also attempting to gather information on the 

numbers of Native Americans; to control the Native American population; and to protect white 

citizens from the spread of infectious diseases.114 In 1803, the federal government initially 

assigned the responsibility for Native American health care to the Office of Indian Affairs in the 

War Department. Health care duties were subsequently transferred to the newly formed 

Department of the Interior in 1849, where the responsible office was eventually renamed the 

Bureau of Indian Affairs (BIA).115 The Bureau of Indian Affairs administered the funding 

provided by Congress for health care programs for Native Americans.116

Starting in the 1920s, concerns developed regarding the administration of government 

programs by the Bureau of Indian Affairs. Specifically, there were complaints that BIA was 

poorly equipped to combat public health emergencies, such as tuberculosis, trachoma, smallpox, 

and other contagious and infectious diseases.117 Because of these concerns, a commission was 

formed to inspect reservations, schools, and hospital settings. This commission issued the 

Meriam Report, documenting substandard health conditions resulting from government 

inefficiency and inadequate funding.118 To develop an effective system of preventive medicine 

and public health, the commission recommended adequately funding Native American health 

care,119spurring a short-lived movement to improve health conditions for Native Americans.120 In 

1955, the division responsible for Native American health care was transferred to the Department 

 

113 Over the past 300 years, Native American nations have traded hundreds of millions of acres to the federal 

government in exchange for benefits to guarantee the survival and integrity of their tribes, including health care. See 

Indian Health Care Improvement Act Reauthorization of 2003, S. 556, 108th Cong. § 2 (2003). See also Holly T. 

Kuschell-Haworth, Jumping Through Hoops: Traditional Healers and the Indian Health Care Improvement Act, 2 

DEPAUL J. HEALTH CARE L. 843, 844 (1999) (hereafter cited as Kuschell-Haworth, Traditional Healers and the 

Indian Health Care Improvement Act), citing American Indian Policy Review Commission Report on Indian Health: 

Task Force Six, 1976, p. 33. 

114 “Although U.S. Army surgeons treated Native American victims of smallpox near the opening of the 19thcentury, government concern for Native American health at this time was manifest more in counting the numbers of 

people who died from this and other diseases, and estimating how many were left, than in providing institutional 

remedies.” National Library of Medicine, “Early United States Government Interest in Native American Health,” 

<http://www.nlm.nih. gov/exhibition/if_you_knew/if_you_knew_03.html> (last accessed July 15, 2003). 

115 Kuschell-Haworth, Traditional Healers and the Indian Health Care Improvement Act, citing American Indian 

Policy Review Commission Report on Indian Health: Task Force Six, 1976, p. 29. 

116 Ibid. 

117 National Library of Medicine, “Reservation and Hospital Health Care Under the Office of Indian Affairs 

(c.1890–1925),” <http://www.nlm.nih.gov/exhibition/if_you_knew/if_you_knew_06.html> (last accessed July 15, 

2003). 

118 National Library of Medicine, “The Meriam Commission and Health Care Reform (1926–1945),” 

<http://www.nlm.nih. gov/exhibition/if_you_knew/if_you_knew_07.html> (last accessed July 15, 2003). 

119 Lewis Meriam et al., The Problem of Indian Administration, Chapter 1: General Summary of Findings and 

Recommendations (report of a Survey made at the request of Honorable Hubert Work, Secretary of the Interior, Feb. 

21, 1928), <http://www.alaskool.org/native_ed/research_reports/IndianAdmin/Chapter1.html#chap1> (last accessed 

July 15, 2003). 

120 National Library of Medicine, “Transfer to Department of Health, Education, and Welfare (1946–1969),” 

<http://www. nlm.nih.gov/exhibition/if_you_knew/if_you_knew_08.html> (last accessed July 15, 2003). 
Staff Draft July 2004 24

of Health and Human Services (HHS). Today, the Indian Health Service (IHS), an agency within 

HHS, is the principal federal health care provider and health care advocate for Native Americans. 

The stated IHS goal is to raise the health status of Native Americans to the highest possible level. 

The IHS health care system includes 49 hospitals in 12 states, 180 health centers in 27 states, and 

eight school health centers and 273 health stations in 18 States, providing services to 

approximately 1.4 million Native Americans. 

Legislation Assigning Federal Responsibility for Health Care 

Perhaps the most significant achievement for Native American health care has been the 

codification of the federal responsibility in the Snyder Act of 1921.121 Together, the Snyder Act 

and the Indian Health Care Improvement Act of 1976122 form the basic legislative authority for 

today’s Indian Health Service. The Snyder Act was the first major legislation authorizing 

funding for health care services to Native Americans and reflected congressional recognition of 

the need to provide ongoing federal health care resources; it was, in fact, the first time Congress 

formulated broad Native American health policy.123 Congress charged the Bureau of Indian 

Affairs to “direct, supervise, and expend such moneys as Congress may from time to time 

appropriate, for the benefit, care, and assistance of the Indians . . . for relief of distress and 

conservation of health.”124

Congress subsequently enacted the Indian Health Care Improvement Act (IHCIA), 

establishing the basic programmatic structure for delivery of health services to Native Americans 

and authorizing the construction and maintenance of health care and sanitation facilities on 

reservations.125 The wording and effect of IHCIA clearly acknowledged the legal and moral 

responsibility for “providing the highest possible health status to Indians . . . with all the 

resources necessary to effect that policy.”126 

Like the Snyder Act, the IHCIA provided appropriations authority for the delivery of 

health services to Native American people. In fact, the IHCIA provided comprehensive 

directives to the federal government regarding the delivery of health care services, including 

specific language that addressed the recruitment and retention of a number of health 

professionals serving Native American communities; focused on health services for urban Native 

Americans; and addressed the construction, replacement, and repair of health care facilities. The 

act had been amended and reauthorized several times, but was only extended through FY 2001. 

Although it has expired and has not been reauthorized, Congress has nevertheless continued 

 

121 Snyder Act of 1921, Ch. 115, 42 Stat. 208 (1921) (codified as amended at 25 U.S.C. § 13 (2004)). 

122 Indian Health Care Improvement Act, Pub. L. No. 94-437, 90 Stat. 1402 (codified as amended in scattered 

sections of 25 U.S.C.). 

123 Betty Pfefferbaum et al., Providing for the Health Care Needs of Native Americans: Policy, Programs, 

Procedures, and Practices, 21 AM. INDIAN L. REV. 211, 215 (1997). 124 The Snyder Act of 1921, Ch. 115, 42 Stat. 208 (1921) (codified as amended in 25 U.S.C. 13 (2004)). 

125 Indian Health Care Amendments of 1980, Pub. L. No. 96-537, 94 Stat. 3193 (codified as amended in scattered 

sections of 25 U.S.C.). 

126 Id. In reauthorizing the IHCIA in 1990, Congress passed three major health bills amending the IHCIA and 

providing statutory authorization for a comprehensive and community-based mental health program; the 

authorization for self-governance demonstration projects; and the expansion of the Urban Indian Health Programs. 
Staff Draft July 2004 25

appropriating funds for IHCIA programs under the authority of the Snyder Act.127 Efforts to 

reauthorize the IHCIA are ongoing, with current proposals pending in House and Senate 

committees.128 The details of these proposals will be discussed in greater detail in Chapter 5 of 

this report. 

Conclusion 

As explained in this chapter, and as will be discussed throughout this report, many factors 

contribute to health care disparities among Native Americans; not the least among them is the 

historical relationship between tribes and the federal government. An examination of the 

structure and operation of the Native American health care delivery programs also reveals that 

the location of health care facilities and the administrative framework of the delivery programs 

affect access to health care services for many Native Americans. The review of quality of 

services indicate that while IHS facilities have received adequate ratings in accreditation surveys, 

IHS faces significant problems with the retention and recruiting of qualified health care 

providers, and the maintenance of aging facilities. In addition, raising the health status of Native 

Americans to the level of the rest of the nation requires modification of the Indian Health Care 

Improvement Act. These modifications must reflect the current health status of the Indian 

population. But more importantly, they must recognize that health care for Native Americans is 

more than simply medical treatment; it involves a holistic approach, including considerations of 

education, housing, economic opportunity, as well as empowerment through self-determination 

and self-governance. Moreover, social and cultural barriers, including racial and ethnic bias and 

discrimination, cause and contribute to Native American health disparities. Chapter 2 will 

explore the social and cultural barriers limiting Native American access to quality health care 

and, like the remaining other chapters, will present specific recommendations for change. 

 

127 The IHCIA has been introduced in the last three sessions of Congress. Mostly because Congress has been 

preoccupied with national security and other issues of immediate importance, the IHCIA has not reached the floor of 

Congress. Currently two separate versions await action in House and Senate committees. The factors affecting 

reauthorization and the subsequent impact will be discussed in greater detail in a later section. See Myra Munson, 

Sonosky, Chambers, Sachse, Miller & Munson, LLP, interview in Washington, DC, Aug. 11, 2003. 

128 Traci, McClellan, National Indian Health Board, e-mail to U.S. Commission on Civil Rights, June 24, 2004. The 

respective House and Senate committees are awaiting administration input prior to final markup. That input is 

pending a final Office of Management and Budget (OMB) evaluation of associated costs. Passage in the current 

session is possible, but unlikely. 
Staff Draft July 2004 26

Chapter 2: Social and Cultural Barriers That Limit Native Americans’ Access to 

Health Care and Contribute to Health Disparities 

 The causes of the disparities in the health status of Native Americans are as many and 

varied as the tribes themselves. Federal strategies to satisfy the needs of such diverse peoples 

necessarily encounter various challenges. Among those challenges identified by the director of 

IHS is intentional and unintentional racial discrimination.1

 Analyzing the effects of that 

discrimination requires an understanding of the unique cultural and political history of Native 

Americans. 

In Eliminating Health Disparities: Conversations with American Indians and Alaska 

Natives, Michael Bird, a member of the Santo Domingo and San Juan Pueblo tribes and a former 

president of the American Public Health Association, describes the historical relationship 

between Native Americans and the federal government. He describes a relationship and history 

that have witnessed a military war being waged against Indian Country; Native Americans being 

dispossessed of millions of acres of land; and a nearly successful effort to wipe out native people 

and their traditions, beliefs, and culture.2

 These experiences have had a profound impact. 

According to Mr. Bird, “when you dispossess people of their land or labor, their culture, their 

language, their tradition and their religion you set into force powerful forces that impact in a very 

negative and adverse way.”3 He explained that this dispossession promotes and creates health 

disparities for indigenous populations.4 From his perspective, Native Americans thrived for 

thousands of years as independent nations prior to a dispossession policy that created the current 

conditions of despair.5 Michael Bird believes that this dispossession has led to “significant 

damage in health, in educational levels, and in social well-being.”6

 A good example of this 

dispossession policy is the Dawes Act of 1887, which made it illegal to speak traditional 

languages or practice traditional customs.7

 This policy contributed to the decline in health for 

many Native Americans.8

 This attempted eradication of native people and their culture was 

rooted in the belief that they were racially, ethnically, and culturally inferior. 

 

1

 Dr. Charles W. Grim, testimony before the U.S. Commission on Civil Rights, briefing, Albuquerque, NM, Oct. 17, 

2003, transcript, p. 60 (hereafter cited as Briefing Transcript). 2

 Michael E. Bird, “Toward Wisdom,” in Eliminating Health Disparities: Conversations with American Indians and 

Alaska Natives, ed. Michael E. Bird, William M. Kane, and Marcia Quackenbush (ETR Associates, 2002), pp. 21–

22. 

3

 Bird testimony, Briefing Transcript, p. 85. 

4

 Ibid. 

5

 Ibid. 

6

 Michael Bird, “Health and Indigenous People: Recommendations for the Next Generation,” American Journal of 

Pub. Health, vol. 92, 2002, p. 1391. 7

 Indian General Allotment Act of 1887, ch. 119, 24 Stat. 388 (codified as amended in 25 U.S.C. §§ 331 et seq. 

(2004)). 

8

 Yvette Roubideaux, “Perspectives on American Indian Health,” American Journal of Public Health, vol. 92, 2002, 

p. 1402. 
Staff Draft July 2004 27

Even today, academic studies find that racial bias significantly contributes to differences 

in health care provided to Native Americans and other people of color.9

 A recent Institute of 

Medicine report established that “whites are more likely to receive more, and more thorough, 

diagnostic work and better treatment and care than people of color—even when controlling for 

income, education, and insurance.”10

Though the categorization of bias and discrimination in general terms is possible, 

discrimination in delivery and quality of health care is often subtle and difficult to address.11

Consequently, identifying all areas in which race influences or contributes to existing health 

disparities proves difficult. Current research indicates, however, that in addition to their presence 

as stand-alone contributors, bias and discrimination exercise a pervasive influence on each of the 

other primary contributors to disparities in the health status and outcomes for Native Americans. 

These other contributors to health disparities include: 

• Limited access to appropriate health services and facilities. 

• Poor access to health insurance, including Medicaid, Medicare, and private insurance. 

• Insufficient federal funding. 

• Quality of care. 

• Availability of culturally competent health services. 

• Disproportionate poverty and poor education. 

• Behavior or lifestyle choices. 

These seven contributors are not mutually exclusive; in fact, there is substantial overlap 

between each of them. They may also be categorized as social and cultural barriers, structural 

barriers, and financial barriers. During its investigation, the Commission was provided various 

examples of how these barriers create disparities in health care for Native Americans. Lyle Jack, 

a member of the tribal council of the Oglala Sioux Tribe, for example, explained that while his 

tribe has one of the best rehabilitation centers in terms of equipment, the tribe does not have 

sufficient funding to properly staff that facility.12 This creates structural and financial barriers, 

both having negative implications for patient care. 

The social and cultural barriers contributing to health disparities include health care 

providers’ bias and stereotyping; cultural understanding, and language; patients’ socioeconomic 

status, including poverty and educational attainment; and health behaviors and lifestyle choices. 

 

9

 U.S. Commission on Civil Rights, The Health Care Challenge: Acknowledging Disparity, Confronting 

Discrimination, and Ensuring Equality, September 1999, p. 73 (hereafter cited as USCCR, The Health Care 

Challenge); see also National Institutes of Health, Office of the Director, Office of Behavioral and Social Sciences 

Research, “Strategic Plan for Health Disparities Research, FY 2002–2006,” Mar. 28, 2001, <http://www.obssr.od. 

nih.gov/Activities/HealthDisp.htm> (last accessed July 14, 2003). See generally Institute of Medicine, Unequal 

Treatment: Confronting Racial and Ethnic Disparities in Health Care (Washington, DC: National Academies Press, 

2002) (hereafter cited as IOM, Unequal Treatment). 

10 Vernellia Randall, Racial Discrimination in Health Care in the United States as a Violation of the International 

Convention on the Elimination of All Forms of Racial Discrimination, 14 J. LAW. & PUB. POL’Y 45, 57–8 (2002). 

See also IOM, Unequal Treatment, pp. 1–5. 

11 IOM, Unequal Treatment, p. 630. 12 Jack Testimony Briefing Transcript, p. 24. 
Staff Draft July 2004 28

The role of these social and cultural barriers in Native American health disparities is discussed in 

this chapter. 

A discussion of the role of structural barriers, such as management or oversight issues 

relating to the different types of IHS services; geographic location of facilities; wait times at the 

facilities and wait times for treatment; the age of facilities; turnover rates of care providers; 

retention and recruiting of qualified providers; misdiagnosis or late diagnosis of diseases; and 

rationing of health services, is undertaken in Chapter 3. Financial barriers are discussed in 

Chapter 4. 

Social and Cultural Barriers 

Generally, Americans benefit from one the best health care systems in the world, causing 

them to live longer and enjoy better health.13 Unfortunately, the availability and quality of that 

care varies between whites and people of color, including Native Americans.14 Among the 

various causes are bias and discrimination. 

Racial and Ethnic Bias and Discrimination 

Racial and ethnic disparities in health have a long history in the United States. For Native 

Americans, these disparities can be traced back to the arrival of the first settlers and the diseases 

that accompanied them, diseases for which Native Americans had little to no immunity. Many of 

the current health disparities are rooted, in part, in past segregationist practices resulting in 

inferior housing, education, and physical environments, as well as fewer economic opportunities 

for Native American communities and other communities of color. Though Native Americans 

share many experiences with other people of color, they also have many unique experiences in 

the United States. A long history of disenfranchisement; extermination of tradition, language, 

and land rights; broken treaties; sterilization of Native American women; placement of Indian 

children in Indian boarding schools; and other experiences of oppression have established a 

deep-rooted intergenerational anger, intergenerational grief, and mistrust of government that 

persists to this day. Clearly, this mistrust and these feelings of resentment are not unfounded.15 

Confirming this mistreatment of Native Americans by the federal government, on 

September 8, 2000, Kevin Gover, the Assistant Secretary for Indian Affairs of the Interior 

Department and the highest ranking Native American at that time, apologized to Native 

Americans for the mistreatment and abuse they experienced at the hands of the federal 

government. Mr. Gover, speaking on behalf of the Bureau of Indian Affairs, apologized for the 

historical conduct of BIA, stating that the federal government policies have left a “legacy of 

 

13 U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality, National 

Healthcare Disparities Report, December 2003, p. 35. 14 IOM, Unequal Treatment, p. 1. 15 Holly T. Kuschell-Haworth, Jumping Through Hoops: Traditional Healers and the Indian Health Care 

Improvement Act, 2 DEPAUL J. HEALTH CARE L. 843, 855–56 (Summer 1999). See also Levane R. Hendrix, “Health 

and Health Care of American Indian and Alaska Native Elders,” <http://www.stanford.edu/group/ethnoger/ 

americanindian.html> (last accessed Feb. 11, 2004). 
Staff Draft July 2004 29

misdeeds that haunts us today . . . Poverty, ignorance and disease have been the product of this 

agency’s work.”16 

Conscious discrimination is not as common as the unconscious bias frequently displayed 

by health care providers serving Native American communities. Studies have discovered that 

while unintentional, health care providers make treatment decisions based on their cultural and 

racial biases and stereotypes.17 One study concluded that “[t]oo often, a physician’s perception of 

a patient’s race and ethnicity, which is not based on any communication with the patient, is being 

recorded and used by the health-care team to make clinical decisions and medical and social 

judgments about the patient. This practice perpetuates physician paternalism and racism.”18 This 

study assessing disparities in pain treatment found that proper patient-provider communication is 

necessary to assess a patient’s pain.19

A report discussing racial and ethnic disparities in the diagnosis and treatment of mental 

illnesses concluded that disparities can be attributed to bias.20 Citing a 2001 report, Race, Culture 

and Ethnicity and Mental Health, issued by then-Surgeon General David Satcher, the report 

concluded that disparities in access and treatment leave minority mental health patients without 

proper treatment.21 The report explained that one possible reason for racial and ethnic disparities 

in mental health treatment is that “practitioners and mental health program administrators make 

unwarranted judgments about people on the basis of race or ethnicity.”22 Relying on these types 

of assumptions can lead to inappropriate decisions and action or inaction by practitioners and 

program administrators that affect the overall health care of minorities.23

The conclusions of the report are not unique. An independent study by Michelle van Ryn 

and Steven S. Fu, published in the American Journal of Public Health, also found that health 

providers directly contribute to racial disparities in health care and health outcomes.24 The 

research found that providers may intentionally or unintentionally reflect and reinforce societal 

messages regarding the value, competence, and deservingness of treatment of nonwhite 

patients.25 Providers communicate lower expectations for patients of color and poor patients, 

including the expectation of medical resources and assistance; expectations of improvement in 

their medical condition; and views concerning family and social support necessary to aid in or 

support recovery.26 On a more basic level, interpersonal behavior is also influenced by a 

 

16 D. Bambi Kraus, “Apology Highlights Abuses in Government’s Treatment of Indians,” The Progressive Media 

Project, <http://www.progressive.org/mpvdbk00.htm> (last accessed Feb. 11, 2004). 17 Causes of the Disparities in Pain Treatment, 29 J.L. MED. & ETHICS 52, 61 (Spring, 2001). 18 Ibid. 

19 Ibid. 

20 Lonnie R. Snowden, “Bias in Mental Health Assessment and Intervention: Theory and Evidence,” American 

Journal of Public Health, vol. 93, no. 2, February 2003, p. 239. 

21 Ibid., p. 242. 

22 Ibid., p. 239. 

23 Ibid. 

24 Michelle van Ryn, PhD, MPH, and Steven S. Fu, MD, MSCE, “Paved With Good Intentions: Do Public Health 

and Human Services Providers Contribute to Racial/Ethnic Disparities in Health?” American Journal of Public 

Health, vol. 93, no. 2, February 2003, p. 252. 

25 Ibid., p. 249. 

26 Ibid., pp. 249–51. 
Staff Draft July 2004 30

provider’s bias and use of stereotypes. In the Ryn and Fu study, it was reported that care 

providers use a “less participatory decision-making style” and communicate information in a 

highly technical manner with little opportunity for patient input and questions when treating 

nonwhite and low-income patients.27 Because of their cultural differences, Native Americans 

tend not to question physician decisions or speak out against any mistreatment, making them 

more vulnerable to unfair treatment.28

Despite claims by IHS officials that racism and bias are not problems within the IHS 

system,29 the Commission found evidence that Native Americans experience bias and 

discrimination in the health care services they receive through the IHS system. One example of 

bias and discrimination by IHS providers comes from a Native American woman who sought 

treatment for constant pain after undergoing a hysterectomy. In explaining her medical condition, 

she informed her provider that she had two children.30 The doctor told her that she did not 

believe her because “no Indian woman only has two children” and required her to undergo 

painful tests to confirm the hysterectomy.31 

A second example demonstrates that discrimination can target subgroups within the 

Native American population, as well. The members of the Health Committee of the Cheyenne 

River Tribe all agreed that the color of their skin factored heavily when receiving health care 

services at IHS facilities and that such discrimination was a common complaint among tribal 

members.32 The wait time at IHS facilities, they contended, varies depending on the color of their 

skin: “full-blood Indians” wait longer for services than “lighter skinned Indians.” One member 

said she heard providers at dental clinics commenting on the skin of Native American patients 

and also expressing their reluctance to provide services to them based on their belief that their 

skin is “dirty.”33 The chair of the Cheyenne River Sioux Health Committee, Raymond Uses the 

Knife, stated that this type of discrimination comes from non-Native staff members, who make 

up more than 40 percent of the IHS staff at the facilities serving the Cheyenne River Sioux 

Tribe.34 Based on IHS data, as of 2003, 64 percent of the IHS staff was non-Indian and 36 

percent Indian.35

 

27 Ibid., p. 251. 

28 Ann Garwick and Sally Auger, “What Do Providers Need to Know About American Indian Culture? 

Recommendations from Urban Indian Family Caregivers,” Families, Systems & Health, vol. 18, 2000, p. 177 

(hereafter cited as Garwick and Auger, “What Do Providers Need to Know?”). 

29 Dr. Charles W. Grim, “Eliminating Disparities Is More Than an Access Issue” (remarks before the Association of 

American Indian Physicians, Santa Fe, NM, Aug. 4, 2003), <http://www.ihs.gov/PublicInfo/PublicAffairs/ 

Director/2003_Statements/FINAL-AAIP_August_2003.pdf> (last accessed Dec. 19, 2003). 30 Joye Lebeau, Cheyenne River Sioux Tribe Health Hearings, Eagle Butte Hearing, Mar. 12, 2002, p. 23. 

31 Ibid. 

32 Frank Uses the Knife and other Health Committee Members of the Cheyenne River Sioux Tribe, telephone 

interview, Jan. 20, 2004 (hereafter cited as Knife interview). 

33 Ibid. 

34 Ibid. 

35 U.S. Department of Health and Human Services, Indian Health Service, Response to the Commission’s 

Interrogatory 45, April 2004 (hereafter cited as IHS, Interrogatory Response). See also U.S. Department of Health 

and Human Services, Indian Health Service, Fiscal Year 2005 Budget Justification, Indian Health Professions, p. 

IHS-119.
Staff Draft July 2004 31

Not all bias is so obvious; subtle comments or innuendos may also reflect discriminatory 

attitudes. In Eagle Butte, South Dakota, an IHS facility refused to take in a Lakota elder, found 

unconscious at home by his wife.36 A non-Native American provider in charge at IHS, when 

asked by the ambulance driver where to take the person, allegedly stated, “Whatever you do, 

don’t bring the body to IHS. I don’t care if you take back or throw it on the side of the road, just 

don’t bring it here.”37 This tragedy caused uproar in the Lakota Nation. Whether the statement 

was insensitive or an example of discrimination against Native Americans, the tribal members of 

the Lakota Nation perceived this statement as discriminatory. For the tribal members, this 

blatantly offensive statement was emblematic of the racial discrimination, disrespect, and 

mistreatment of Native Americans by IHS staff they had long suspected.38 This event confirmed 

the “generations of resentment at perceptions of callous, indifferent treatment from the IHS.”39

These above illustrations are just a few examples of many shared by Native Americans of the 

disrespect, mistreatment, and racial discrimination at IHS facilities. 

As corroborated by anecdotal evidence and empirical studies, the Commission has found 

that racism, racial bias, and the mistreatment of minorities and Native Americans are real—and 

cause real health disparities.40 As long as medical decisions are made based on stereotypes or 

racial bias, Native Americans will have shorter life spans and a reduced quality of life. 

Cultural Understanding and Language 

For Native Americans, there is a concern that health care providers’ cultural insensitivity 

and the lack of acceptance of traditional healing practices and traditional medicine may create 

barriers to receiving care.41 Accordingly, it is important that “culturally competent”42 health 

services be available to Native Americans. If health services are not offered to the targeted 

patient population in a culturally and linguistically appropriate manner, treatment will remain 

ineffective and any effort to eliminate racial and ethnic health care disparities will fall short.43 

The importance of culturally competent health services to the overall quality of health 

care has been generally acknowledged.44 Moreover, authorities realize the necessity of offering 

 

36 Kay Humphrey, “Indian Health Service Accused of Neglect in Tribal Elder’s Death,” Indian Country Today, Jan. 

25, 2002 (hereafter cited as Humphrey, “IHS Accused of Neglect in Tribal Elder’s Death”). 37 Ibid. 

38 Knife interview. 

39 Humphrey, “IHS Accused of Neglect in Tribal Elder’s Death.” 

40 Saffron Karlsen and James Nazroo, “Relation Between Racial Discrimination, Social Class, and Health Among 

Ethnic Minority Groups,” American Journal of Public Health, vol. 92, 2002, p. 630; Stephen B. Thomas, “The 

Color Line: Race Matters in the Elimination of Health Disparities,” American Journal of Public Health, vol. 91, 

2001, p. 1047; Lonnie R. Snowden, “Bias in Mental Health Assessment and Intervention: Theory and Evidence,” 

American Journal of Public Health, vol. 93, 2003, pp. 241–42. 41 USCCR, Health Challenges, p. 44. 42 Cultural competence is defined as: the demonstrated awareness and integration of three population-specific issues: 

health-related beliefs and cultural values, disease incidence and prevalence, and treatment efficacy. The Henry J. 

Kaiser Family Foundation, “Compendium of Cultural Competence Initiatives in Health Care,” January 2003, p. 6, 

<http://www.kff.org/content/2003/6067/6067v6.pdf> (last accessed Sept. 17, 2003). 

43 See generally IOM, Unequal Treatment. 44 Ibid. 
Staff Draft July 2004 32

health care that recognizes and complies with the patient’s values, beliefs, and traditions, in order 

to provide acceptable services for specific populations.45 According to the Department of Health 

and Human Services: 

Health care providers typically presume they are color blind in their delivery of 

services. Few providers have thought about the biases they bring to patient 

encounters or about their own cultural/ethnic backgrounds, health beliefs, and 

health practices. These biases often result in both the system and its providers 

attempting to get the patient to conform to the mainstream instead of meeting a 

patient on her or his own cultural ground. Yet patient attitudes about health, 

religious views, and concepts of death often influence compliance, affect disease 

management, and alter health outcomes.46

If culturally and linguistically appropriate health services are desirable to Native 

Americans, based on their unique cultures and the unique relationship with the federal 

government, distinctive approaches to health care should also be included in the delivery of 

health services to this population. Many Native Americans continue to employ traditional 

medicines and practices either as their sole form of health care or as a component of their overall 

health care.47 Accordingly, in March 2002, the Association of American Indian Physicians 

unanimously approved a resolution acknowledging and supporting Native American traditional 

healing and medicines as part of the spectrum of health care appropriate for Native Americans. 

As part of this resolution, the association intends to work collaboratively with traditional healers 

for the benefit of Native patients and community health.48

In a study to identify what urban Indian family caregivers should inform health providers 

who work with Native American children about Indian culture, the caregivers concluded that 

providers should be aware of the role and importance of extended family members in a child’s 

overall care; any traditional health beliefs and healing practices; and any cultural communication 

 

45 U.S. Department of Health and Human Services, Public Health Reports, “Culturally Competent Health Care,” 

Public Health Report 2000, by Jean Lau Chin, Ed.D., vol. 115, January–February 2000 (hereafter cited as HHS,

Public Health Report 2000). See also Johnson interview. Dr. Emery Johnson, former director of the Indian Health 

Service, discussed what happens when cultural competency is not considered. Dr. Johnson mentioned a Cornell 

University study, where a high-tech medical facility was placed in an impoverished rural setting. The study found 

that the high-tech program resulted in little improvement in health status, which was eventually attributed to a lack 

of understanding and acceptance in the rural community. Johnson interview. 

See also Harvard Public Health Now, “MPH Student Blends Native American and Modern Medicine to Address 

Health Disparities,” May 31, 2002, <http://www.hsph.harvard.edu/now/may31/student.html> (last accessed July 15, 

2003); J. Patterson, “Meeting the Needs of Native American Families and Their Children with Chronic Conditions,” 

Families, Systems & Health, vol. 15, 1997, pp. 237–41. See generally USCCR, The Health Care Challenge, Vol. I, 

pp. 44–45. 

46 HHS, Public Health Report 2000. 

47 Jennie Joe, “The Rationing of Healthcare and Health Disparity for the American Indians/Alaska Natives,” in 

Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (National 

Academies Press, Washington, DC, 2002), p. 537 (hereafter cited as Joe, “The Rationing of Healthcare”). 

48 Association of American Indian Physicians, “Resolution,” Mar. 13, 2002, <http://www.aaip.com/about/AAIP_ 

trad_med_resol_02.html> (last accessed July 15, 2003). 
Staff Draft July 2004 33

patterns.49 Specifically, health facilities should avoid excluding extended family members who 

might want to visit a child, since they may also assist in serving as primary caregiver to Native 

American children.50 In terms of traditional beliefs, some Native American families may resist 

Western treatment recommendations and prefer to use herbal remedies, healing ceremonies, and 

traditional healers as a primary or supplemental form of treatment.51 Furthermore, the study 

indicated that health providers should be aware of the significance of nonverbal communication 

for some Native American patients, such as indirect eye contact and silence.52 These forms of 

nonverbal communication are often an indication of respect for the “healer,” and may prevent 

some patients from directly asking questions or requesting health care services.53 Cultural 

competence, therefore, acknowledges the patient’s perspective and adjusts appropriately, 

inevitably improving the quality and delivery of care. Reaching that level of competence requires 

insight, extensive training, and a programmatic commitment to cultural sensitivity. Accordingly, 

as the advocate for Native American health and as the federal health care provider for eligible 

Native Americans, IHS has the responsibility of ensuring, through its training and programming, 

that IHS health care services are provided in a culturally competent manner. 

Generally, IHS recognizes the importance of culturally competent care. Dr. Charles W. 

Grim, director of IHS, cited cultural and language barriers as factors that affect health disparities 

and access to health care.54 He added that IHS is working to make its programs culturally 

relevant, and as a result, cultural competence is losing significance as a factor for accessing IHS 

services.55 Dr. Richard Olson, acting director of Office of Clinical and Preventive Services, also 

acknowledged that cultural competence is an aspect of quality of care.56 IHS defines “culturally 

competent care” as “a term implying that IHS programs and staff should be aware, sensitive, and 

accommodating of a wide diversity of Native languages, customs, beliefs, values, and traditions 

of healing and wellness.”57

While IHS acknowledges that culture and language can be barriers to care for over 560 

federally recognized tribes, many with their unique cultures and languages, IHS claims that 

because it employs a high percentage of Native American staff, cultural competency is not a 

major issue at IHS.58 According to IHS, it “recognizes the value of traditional beliefs, 

ceremonies, and practices in the maintenance of wellness and the healing of the body, mind and 

spirit.”59 Therefore, IHS encourages an atmosphere where traditional beliefs are upheld and 

respected to ensure that they are a vital force within Indian communities and that those 

 

49 Garwick and Auger, “What Do Providers Need to Know?” p. 177. The study included a small sample of 30 Native 

American families from three tribes: 27 Ojibwe, two Lakota, and one Dakota in a large Midwestern city. The 

authors note that the results of this study may not be the same for families of other urban Indian tribes. 50 Ibid. 

51 Ibid. 

52 Ibid. 

53 Garwick and Auger, “What Do Providers Need to Know?” p. 177. 

54 Grim Testimony, Briefing Transcript, p. 62. 

55 Ibid., pp. 62, 65. 

56 Olson Testimony, Briefing Transcript, p. 128. 

57 IHS, Interrogatory Response 1. 

58 IHS, Interrogatory Responses 47 and 48. 

59 Ibid. 
Staff Draft July 2004 34

traditional beliefs remain an integral component of the healing process.60 Furthermore, IHS 

makes traditional medicine, as defined by tribal or village traditional culture, accessible in all its 

service delivery locations.61 IHS is also designing and constructing its new clinics and hospitals 

to include space for spiritual healing practices.62

In terms of whether IHS facilities are successfully delivering culturally competent health 

services, a focus group of Native Americans in Albuquerque, New Mexico, revealed that 

participants were generally satisfied with IHS providers’ awareness of the significance of Native 

American culture.63 This finding tends to support Dr. Grim’s testimony that cultural and 

language barriers have become less of an issue for IHS services.64 However, despite Dr. Grim’s 

statement that IHS provides training for non-IHS providers at contract facilities,65 the findings 

from the Albuquerque focus group revealed Native American patients’ dissatisfaction with 

biased behavior and cultural insensitivity toward the importance of traditional medicine by health 

care providers from the private sector.66 

Supporting the general findings of the Albuquerque focus group, tribal representatives 

and leaders with whom the Commission spoke agreed that, generally, cultural competency is not 

a major concern when accessing IHS direct services.67 The sense of dissatisfaction with a lack of 

cultural sensitivity derives primarily from services provided to Native Americans by contract 

health providers.68 When asked to provide specific information on the number and the types of 

administrative and judicial complaints concerning the IHS direct, tribal, and contract health 

services, IHS merely responded that the Contract Health Services program does not maintain 

complaint-related data.69 Because of IHS’ failure to provide requested information on any 

complaints concerning the quality of care provided at IHS direct, tribal, and contract health 

facilities, it is difficult to assess the degree to which the lack of culturally competent care is 

affecting the quality of care Native Americans receive. 

Nonetheless, the findings from the Albuquerque focus group and the responses from 

some tribal representatives suggest that when IHS refers Native American patients to contracted 

health providers, these providers should be extensively apprised and trained about the cultural 

 

60 Ibid. 

61 Ibid. 

62 Ibid. 

63 Joe, “The Rationing of Healthcare,” p. 538. 

64 Grim Testimony, Briefing Transcript, pp. 62, 65. 

65 Ibid., p. 66. 

66 Joe, “The Rationing of Healthcare,” p. 538. 

IHS facilities and its leadership in many communities have always allowed patients and their 

families either time or a place (in a clinical setting) to consult with tribal healers or practitioners. 

The services provided by most of these tribal healers or practitioners are seen as complementing 

modern medicine and provide a source of spiritual help for many patients. 

Ibid. 

67 See Chris Walker, executive director, Cherokee Health Services, interview in Washington, DC, Apr. 23, 2004; 

Allan Burgess, tribal health administrator, Owyhee Community Health Facility, telephone interview, May 12, 2004. 

68 Ibid. 

69 IHS, Interrogatory Response 38. 
Staff Draft July 2004 35

and linguistic needs of all patients who seek their health services.70 Furthermore, though cultural 

competency among IHS providers seems to be less of a concern, cultural competency training, 

nonetheless, is an important step toward improving the quality of care provided to Native 

Americans. While having a large percentage of Native American IHS staff is encouraging, as 

IHS has recognized, many Native American tribes have their own unique cultures and languages 

and unless the IHS staff belong to the same tribe and culture as the health care recipients, Native 

Americans patients may encounter cultural barriers in accessing IHS services.71 IHS recognizes 

that many non-Native American providers need cultural training concerning the local customs 

and beliefs.72 IHS also recognizes that helping IHS health providers develop cultural competency 

makes them more effective in providing quality health care services to Native Americans.73

Unfortunately, the dissatisfaction found by the focus group indicates that the cultural 

training IHS provides may be insufficient for addressing cultural barriers for Native Americans. 

Despite the recognized importance and need for cultural competency training, IHS does not have 

a specific budget set aside for training its IHS direct or contract health service providers.74 IHS 

reports that some formal and informal training is conducted at the area or local level.75 However, 

IHS did not provide specific information as to how managers have sought to incorporate 

culturally competent care into the delivery of health services at IHS and non-IHS facilities. In 

addition, IHS did not provide the requested information on the impact or outcome of its efforts to 

incorporate culturally competent care into the delivery of care on the health status and outcomes 

for Native Americans. Overall, despite requests for detailed and specific information on IHS 

training and policy implementation efforts to ensure culturally competent care, IHS was unable 

to identify monitoring mechanisms, training initiatives, or targeted funding indicative of the 

commitment needed to develop cultural competency in the delivery of health services at IHS and 

non-IHS facilities. 

In addition to cultural barriers, language barriers present obstacles to communication with 

providers for those Native Americans who maintain their traditional language. These obstacles 

necessarily increase the difficulty of receiving care and understanding treatment procedures and 

provider instructions. Research has found that non-English proficient and limited English 

proficient patients: 

• Receive less information about the therapeutic regimen for their condition and understand 

fewer of the instructions related to medication. 

• Are less likely to keep subsequent appointments and are more likely to make emergency 

room visits than patients in same-language encounters. 

 

70 See, e.g., Anslem Roanhorse, Jr., division director, Navajo Division of Health, telephone interview, Sept. 24, 2003 

(For contracted services, Navajo-speaking staff are on call to provide translation services, if needed, on a 24-hour 

basis. Orientation and training about the Navajo culture is done for contracted providers). 

71 Cherokee Nation, interview in Tulsa, OK. A Native American provider from a different tribe than the patient wore 

jewelry thought to be insensitive to the patient’s culture. 

72 IHS, Interrogatory Responses 47 and 48. 

73 Ibid. 

74 Ibid. 

75 Ibid. 
Staff Draft July 2004 36

• Are less likely to receive preventive services.76

Many studies have also found that patients with limited English proficiency cite the language 

barrier as an obstacle to receiving care.77 In addition, language obstacles create problems for 

patients in understanding provider instructions. 

According to the 2000 census, 381,000 Native Americans speak a native North American 

language, representing an increase from the 281,990 identified in the 1990 census. The most 

common of the Native American languages is Navajo, with 178,014 speakers.78 While language 

assistance needs vary among Native American tribes, for those Native Americans whose primary 

language is other than English, language assistance is crucial to ensuring that they receive proper 

health services. 

Currently, IHS does not provide formal language assistance to its patients.79 In many 

situations, IHS programs may have staff and employees who speak the same language as the 

patients and provide informal translation.80 At other times, patients themselves bring family 

members to act as translators.81 This informal translation is problematic as it can cause semantic 

errors and breaches of confidentiality, and may even disturb familial hierarchies and 

relationships.82 

IHS reports that lack of language assistance is not a major problem within its direct 

facilities, though IHS has identified language barriers as affecting access to care for Native 

Americans whose primary language is not English.83 The language assistance needs at contract 

facilities, however, are unclear. Generally, non-IHS facilities do not have staff capable of acting 

as translators for Native Americans.84 Aside from occasional language assistance provided by 

family members, patients can be expected to encounter communication problems with their 

providers at non-IHS facilities. Nonetheless, IHS has failed to devote resources and has failed to 

implement any formal assistance measures to address this barrier. 

 

76 The Robert Wood Foundation, “Working Toward Dismantling the Language Barrier in Health Care,” 

<http://www.rwjf.org/news/special/languageBarrier_2.jhtml> (last accessed Mar. 9, 2004). 

77 Barbara Plantiko, Not-So-Equal Protection: Securing Individuals of Limited English Proficiency with Meaningful 

Access to Medical Services, 32 GOLDEN GATE U.L. REV. 239, 241 (Spring 2002). 78 U.S. Census Bureau, “Facts for Features: American Indians and Alaska Natives,” <http://www.census.gov/PressRelease/www/releases/archives/facts_for_features/001492.html> (last accessed Mar. 17, 2004). 79 IHS, Interrogatory Responses 47 and 48. 

80 Ibid. 

81 Ibid. 

82 Barbara Plantiko, Not-So-Equal Protection: Securing Individuals of Limited English Proficiency with Meaningful 

Access to Medical Services, 32 GOLDEN GATE U.L. REV. 239, 240 (Spring 2002). 83 IHS, Interrogatory Responses 47 and 48. 

84 Melissa Charlie, Navajo Nation, telephone interview, Apr. 30, 2004. 
Staff Draft July 2004 37

Socioeconomic Status: Education and Poverty 

Lower income and educational levels are associated with poor overall health status and 

health outcomes.85 Due in part to past and present discrimination in education and employment, 

Native Americans and other people of color achieve lower levels of educational attainment and 

income. Native Americans, however, have the highest poverty rate of any ethnic group.86 They 

have a poverty rate of 25.9 percent while the poverty rate is 22.1 percent for African Americans, 

10.8 percent for Asian/Pacific Islanders, and 21.2 percent for Hispanics.87 In comparison, while 

the national poverty rate is 11.3 percent, only 7.5 percent of whites live below the poverty 

level.88 Native Americans remain at the bottom in almost every measurable economic category 

and earn only about half of that earned by the average American.89

On Indian reservations, poverty levels for Native Americans are significantly worse. 

Among the Navajo, for example, over 50 percent live below the poverty level and almost 50 

percent are unemployed.90 More than 50 percent of homes rely only on wood burning for 

heating, 32 percent lack adequate plumbing, and 60 percent lack telephone service.91 On the Pine 

Ridge Reservation in South Dakota, the unemployment rate hovers around 80 percent and two 

out of three residents live below the poverty level.92 

Throughout Indian Country, poverty has had a devastating effect on the health and wellbeing of Native Americans. Native Americans are faced with high unemployment rates resulting 

from lack of economic opportunities on the reservations. Frequently, poverty and the lack of 

economic opportunities lead to inadequate housing. A new study by the Housing Assistance 

Council, a national rural housing organization, found that poverty, the lack of economic 

opportunity, and the shortage of financing for affordable housing have led to deplorable housing 

 

85 U.S. Commission on Civil Rights, The Health Care Challenge, p. 17. See also Health Disparities: Bridging the 

Gap: Hearing Before the Subcomm. on Public Health of Senate Comm. on Health, Education, Labor and Pensions, 

106th Cong. (2000) (testimony of Ruth L. Kirchstein, acting director, National Institutes of Health), and E. Pamuk, 

D. Makuc, K. Heck, C. Reuben, and K. Lochner, Socioeconomic Status and Health Chartbook. Health, United 

States 1998, p. 25 (Hyattsville, MD: National Center for Health Statistics, 1998) (hereafter cited as Pamuk et al., 

Socioeconomic Status and Health Chartbook). 86 Housing Assistance Council, Taking Stock: Rural People, Poverty, and Housing at the Turn of the 21st Century, 

p. 96 (hereafter cited as Housing Assistance Council, Taking Stock). 87 See U.S. Census Bureau, Public Information Office, “Nation’s Household Income Stable in 2000, Poverty Rate 

Virtually Equals Record Low,” Census Bureau Reports, Sept. 25, 2001, CB01-158. 

88 Mary Anne Bobinski, Health Disparities and the Law: Wrongs in Search of a Right, 29 AM. J.L. & MED. 363, 

373 (2003); U.S. Census Bureau, Public Information Office, “Nation’s Household Income Stable in 2000, Poverty 

Rate Virtually Equals Record Low,” Census Bureau Reports, Sept. 25, 2001, CB01-158. 

89 Peter Carlson, “In the Year of ‘Dances with Wolves,’ Everybody Wanted to Be on the Senate Indian Affairs 

Committee. Nearly a Decade Later, It Can Hardly Get a Quorum,” Washington Post, Feb. 23, 1997, p. W06 

(hereafter cited as Carlson, “Everybody Wanted to Be on the Senate Indian Affairs Committee”). 

90 Kathy Helms, “Navajo Poverty Cited in Pursuit of Fed Funds,” Gallup Independent, <http://www.gallup 

independent.com/031204poverty.html> (last accessed Mar. 17, 2004); Roanhorse Testimony, Briefing Transcript, p. 

139. 

91 Roanhorse Testimony, Briefing Transcript, p. 139. 

92 Carlson, “Everybody Wanted to Be on the Senate Indian Affairs Committee.” 
Staff Draft July 2004 38

conditions for Native Americans living on reservations. Substandard housing has been long 

recognized as contributing to worse health outcomes.93 

While the specific problems vary from tribe to tribe, in general, Native Americans living 

on reservations in rural areas live in poor housing conditions. Overcrowding in Native American 

households is three times the national rate.94 Overcrowding and substandard housing conditions 

are linked and often lead to increased incidences of tuberculosis, pneumonia, gastrointestinal 

disorders, head lice, conjunctivitis, hepatitis, and a variety of other infectious diseases that are 

easily transmitted in crowded spaces.95 

Another housing problem is affordability. Native Americans spend over 30 percent of 

their household income for housing each month.96 A more serious housing problem is lack of 

adequate plumbing.97 While 4 percent of Native Americans nationwide live in housing that lacks 

adequate plumbing, about 10 percent of Native Americans living on reservations have 

inadequate plumbing; this figure is 10 times the national level.98 In addition, while only 0.7 

percent of U.S. households lack kitchens, 8.7 percent of Native American households lack 

kitchens.99 The Housing Assistance Council attributes Native American housing problems to the 

lack of financing for decent homes because of legal, socioeconomic, and cultural constraints.100

Poverty and substandard housing go hand in hand. One way to improve housing 

conditions in Indian Country is to reduce the high poverty and unemployment rates and provide 

more economic opportunities on the reservations. Unfortunately, very few economic 

opportunities exist on the reservations. Despite the common belief that gambling casinos on 

reservations have brought increased economic opportunities for Native Americans, studies 

indicate that only a few tribes have benefited from gaming.101 Data show that gaming on the 

reservations has yet to reduce poverty among Native Americans.102

Persistent poverty results in substandard housing for Native Americans. Both poverty and 

substandard housing conditions have led to serious health effects. It is generally recognized that 

income relates to health status because it increases access to care, enables living in better homes 

 

93 Shobha Srinivasan, Liam R. O’Fallon, and Allen Dearry, “Creating Healthy Communities, Healthy Homes, 

Healthy People: Initiating a Research Agenda on the Built Environment and Public Health,” American Journal of 

Public Health, vol. 93, 2003, p. 1447; James Krieger and Donna L. Higgins, “Housing and Health: Time Again for 

Public Health Action,” American Journal of Public Health, vol. 92, 2002, p. 758. 

94 Housing Assistance Council, Taking Stock, p. 100. 

95 Ibid. 

96 Ibid. 

97 Ibid. 

98 Ibid. 

99 Ibid. 

100 Ibid. 

101 Ibid. 

102 Native Americans in Philanthropy, “Survey of Grant Giving by American Indian Foundations and 

Organizations,” <http://www.hartford-hwp.com/archives/41/067.html> (last accessed Mar. 17, 2004); Associated 

Press, “Indians See Little from $8 Billion in Gambling Revenue,” Aug. 31, 2000, <http://www.hartfordhwp.com/archives/41/389.html> (last accessed Mar. 17, 2004). See also Chapter 4. 
Staff Draft July 2004 39

and neighborhoods, and increases opportunities to engage in healthy lifestyles.103 Because Native 

Americans have the highest poverty and unemployment rates, their health is inevitably 

compromised. 

Generally, Americans living near or below the poverty level suffer from worse health 

than wealthier Americans and at age 45 have a life expectancy three to seven years shorter than 

those with higher incomes.104 While 27 to 37 percent of men living below the poverty line report 

being in fair or poor health, only 4 to 5 percent of high-income men report this. The results for 

women are similar.105

One possible explanation for poor health outcomes for those living in poverty is 

inadequate access to medical care. Men and women living below the poverty line are almost five 

times more likely to have an unmet need for health care than adults with high family income.106

Poor women are three times as likely as high-income women to have gone without seeing a 

doctor in the past year; poor men are twice as likely as high-income men.107 Conversely, 

wealthier, more educated people are more likely to have better access to medical care and safer 

home and work environments.108 In addition, they have more opportunities to engage in healthy 

activities and lifestyles, are more aware of health issues, and are better able to pursue healthy 

behaviors.109 

A discussion of the role of poverty is incomplete without acknowledging related barriers, 

such as poor transportation and the absence of child care. When these problems were resolved 

for Native American women as a part of a breast cancer screening program, no impact on the 

participation rates was noticed. Women interviewed explained that their lack of participation in 

the program was not based on poverty-related issues, but instead attributed their reluctance to the 

perception that once they were diagnosed with cancer there would be no treatment or that 

treatment would be unavailable to them.110 These fears cannot be quickly dismissed. Linda 

Burhansstipanov found in her breast cancer work with Native American women that “the interval 

from the time of diagnosis . . . to initiation of treatment is three to six months. Unless they have 

private insurance.” Few Native American women, less than a third, have insurance.111 

 Lack of education, considered alone, has historically been a very strong indicator of poor 

health. Among all racial and ethnic groups, men with less than 12 years of education are 2.5 

times more likely to die from a chronic disease than men with more than 12 years of 

education.112 The ratio for women is 2.1, and similar rates are passed from generation to 

 

103 Pamuk et al., Socioeconomic Status and Health Chartbook, p. 29. 

104 Ibid. 

105 Ibid. 

106 Ibid. 

107 Ibid. 

108 Ibid. 

109 Ibid. 

110 Linda Burhansstipanov, “Leaders and Survivors,” in Eliminating Health Disparities: Conversations with 

American Indians and Alaska Natives, ed. Michael E. Bird, William M. Kane, and Marcia Quackenbush (ETR 

Associates, 2002), pp. 38–39. 

111 Ibid., p. 39. See also Chapter 4. 112 Pamuk et al., Socioeconomic Status and Health Chartbook, p. 90. 
Staff Draft July 2004 40

generation.113 Infant mortality rates almost double for infants whose mothers have less than a 

high school education.114

Adults with less education are also more likely to exhibit risk factors known to contribute 

to chronic health problems and have more difficulties gaining access to medical care. For 

example, mothers with more education are 40 percent more likely to have received early prenatal 

care than mothers with less than 12 years of education.115 Less educated mothers are almost 10 

times as likely to smoke during pregnancy as more educated mothers.116 Furthermore, heavy 

alcohol use, which can lead to cirrhosis, increased accident rates, and fetal alcohol syndrome, 

among other health problems, is 30 percent higher among adults with less than a high school 

education than it is among college graduates.117

Higher levels of education increase exposure to health-related information, equip 

individuals with the skills necessary to apply health-promoting behavior, and are typically 

associated with higher incomes.118 Unfortunately, Native American educational levels are 

significantly lower than the national average.119 According to the 2000 census, of the population 

over the age of 18 who did not have a bachelor’s degree, Native Americans had the highest 

percentage living below the poverty level at 38.2 percent.120

Armed with this knowledge about the role lack of education plays in limiting access to 

medical information and services, health care providers serving Native American communities 

should be required to provide information and services in ways understandable and usable to 

those with limited education and skills. The failure to do so contributes to increasing the 

incidence of preventable disease and late-stage diagnosis of conditions such as cancer and 

diabetes. As a result, more money will be spent on treatment in the long term, mortality rates in 

the Native American population will stagnate or increase, and the quality of life for many Native 

Americans will be greatly diminished. 

With culturally appropriate and skills appropriate prevention and intervention programs, 

diabetes, one of the major health challenges for Native Americans, can be treated and managed 

because it is closely related to behavioral issues. Improved programs could prevent more stories 

 

113 Ibid. 

114 Ibid. 

115 Ibid. 

116 Ibid. 

117 Ibid. 

118 Ibid., p. 30. 

119 In 2000, 70.9 percent of Native Americans 25 and older had graduated from high school, compared with 80.4 

percent for the total population. A total of 83.6 percent of whites had graduated from high school. Furthermore, 11.5 

percent of Native Americans 25 and older hold a bachelor’s degree, compared with 24.4 percent of the total 

population. A total of 26.1 percent of white population had obtained a bachelor’s degree. See U.S. Census, 

Educational Attainment: 2000, August 2003, p. 5. Other statistics demonstrate that Native Americans are twice as 

likely to drop out of high school as the national average. See U.S. Department of Education, Indian Nations at Risk 

Task Force, “Plans for Dropout Prevention and Special School Support Services for American Indian and Alaska 

Native Students” 1992. 

120 State of Utah, Governor’s Office of Planning and Budget, “Utah Data Guide: Income, Poverty, and Education,” 

p. 7. 
Staff Draft July 2004 41

like the one told by Malcolm Bowekaty, a member of the Pueblo of Zuni and a certified health 

education specialist, about the impact of diabetes on his family. From all accounts, his story is 

common in Indian Country. Mr. Bowekaty’s entire family—parents, grandparents, aunts, and 

nieces—all had diabetes in some form. His 70-year-old grandfather developed a foot infection 

that led to the amputation of both legs below the knee. Mr. Bowekaty recalls how he felt 

watching his grandfather go through this experience: “I saw my grandfather who grew up 

ranching, mustang busting, farming—a very tough person—become like a baby. I couldn’t stand 

that.”121

Undoubtedly, poverty and lack of education contribute to health disparities. These 

socioeconomic disparities, however, are inextricably linked to racial bias and discrimination.122

This is especially true for Native Americans. According to the Women of Color Health Data 

Book published by the HHS, racism and discrimination have contributed to Native American 

poverty.123 Thus, socioeconomic disparities causing health disparities must be viewed in light of 

racism and discrimination. Efforts to improve the health status of Native Americans must include 

the elimination of racial bias and discrimination, and the removal of cultural and linguistic 

barriers. 

Health Behaviors and Lifestyle 

Many would argue that health status is determined by one’s lifestyle and behaviors such 

as cigarette smoking, heavy alcohol use, and diet. Specifically for Native Americans, there is 

limited data on behavioral risk factors associated with morbidity and mortality.124 In the absence 

of authoritative figures, there is no consensus as to the exact degree to which lifestyle and health 

behaviors affect health outcomes. Nonetheless, the Indian Health Service reports that “lifestyle 

and behavioral issues contribute to almost 70% of the diseases that occur at a higher rate in 

Indian country.”125 Similarly, the National Healthcare Disparities Report estimates that “up to 

50 percent of health status can be accounted for by health behaviors and only 15 to 20 percent by 

the health care delivery system.”126 

 

121 Malcolm Bowekaty, “From Science to the Spirit of People,” in Eliminating Health Disparities: Conversations 

with American Indians and Alaska Natives, ed. Michael E. Bird, William M. Kane, and Marcia Quackenbush (ETR 

Associates, 2002), p. 54. 

122 Mary Anne Bobinski, Health Disparities and the Law: Wrongs in Search of a Right, 29 AM. J.L. & MED. 363, 

373 (2003). 

123 U.S. Department of Human Health Services, Office of Women’s Health, “Women of Color Health Data Book: 

Factors Affecting the Health of Women of Color: Native Americans,” <http://www.4woman.gov/owh/pub/ 

woc.nativ.htm> (last accessed Mar. 17, 2004). 

124 David Pearson et al., “Differences in Sociodemographic, Health Status, and Lifestyle Characteristics Among 

American Indians by Telephone Coverage,” Preventive Medicine, vol. 23, 1994, p. 461. 

125 Dr. Charles W. Grim, Indian Health Service, “Eliminating Disparities is More Than an Access Issue” (speech 

delivered at the 32nd Annual Meeting of the Association of American Indian Physicians, Santa Fe, NM, Aug. 4, 

2003), <http://www.ihs.gov/PublicInfo/PublicAffairs/Director/2003_Statements/FINAL-AAIP_August_2003.pdf> 

(last accessed Feb. 9, 2004). 

126 Institute of Medicine, Guidance for the National Healthcare Disparities Report (National Academies Press, 

Washington, DC, 2002), p. 102. 
Staff Draft July 2004 42

Other research has found that one’s lifestyle and behavioral risks account for only a 

moderate portion of his or her health status.127 Furthermore, a report on the health status of 

Native American males explained that while there is no consensus on the underlying causes for 

behavioral risks among Native American males, these risk-taking behaviors are likely to have 

“complex etiologies involving genetic, social, cultural, hormonal and other interactions.”128 The 

research explained that the increased risk-taking behaviors among Native American males are 

caused by “loss of cultural identity, anomie, loss of traditional roles for males, failure of primary 

socialization, and unresolved grief from historical trauma.”129

This research further supports the notion that while individuals make their own choices in 

terms of cigarette smoking, alcohol or drug use, and diet, there are underlying factors that affect 

their choices and life experiences. For example, poverty has led Native Americans to depend on 

welfare and government commodity foods that are high in fat and calories.130 While malnutrition 

was a problem among Native Americans two generations ago, the problem today is obesity.131

Though obesity is caused by dietary decisions and a lack of physical activity and exercise, the 

absence of food choices and the lack of education among poor Native Americans regarding 

healthy diets are major contributors to obesity, which leads to other chronic diseases.132

According to Lisa Perkins, director of community health promotion for the Cherokee 

Nation, many rural areas lack the environment necessary for Native Americans to lead a healthy 

lifestyle.133 She explains that because many rural areas do not have more than one general store, 

the choices in the types of food Native Americans can purchase are limited.134 Furthermore, 

specialty food items with lower fat content are often too expensive for poverty stricken rural 

Native Americans.135 Moreover, many rural areas do not have fitness centers or even safe places 

for physical activities.136 Even worse, many poor Native Americans battle other domestic 

problems such as domestic violence; thus eating healthy and exercising is simply not a realistic 

priority.137 Ms. Perkins added that the failure to exercise and choose healthy diets is further 

caused by deep-rooted intergenerational trauma.138 

 

127 Paula M. Lantz et al., “Socioeconomic Factors, Health Behaviors, and Mortality,” Journal of the American 

Medical Association, vol. 279, no. 21, June 3, 1998, pp. 1703–46. 

128 Everett R. Rhoades, “The Health Status of American Indian and Alaska Native Males,” American Journal of 

Public Health, vol. 93, 2003, p. 777. 

129 Ibid., p. 777. 

130 U.S. Department of Health and Human Services, Office of Women’s Health, “Women of Color Health Data 

Book: Factors Affecting the Health of Women of Color: Native Americans,” <http://www.4woman.gov/ 

owh/pub/woc.nativ.htm> (last accessed Mar. 17, 2004). 

131 Ibid. 

132 Ibid. 

133 Lisa Perkins, director of community health promotion, Cherokee Nation, telephone interview, May 18, 2004. 

134 Ibid. 

135 Ibid. 

136 Ibid. 

137 Ibid. 

138 Ibid. 
Staff Draft July 2004 43

Confirming the role of intergenerational trauma on behavior and lifestyle decisions, Dr. 

Everett Rhoades, in his study of the health status of Native American males, found that the lack 

of cultural identify and unresolved grief from historical trauma contribute to behavioral risks.139

These deep-rooted social, historical, and cultural factors affect how Native Americans view 

themselves and how they make choices. To disregard these underlying factors and simply state 

that Native Americans make their own decisions on cigarette smoking, alcohol or drug use, and 

diet could be interpreted as blaming the victims. 

The disproportionate health outcomes in Native Americans must be understood in the 

context of social and cultural barriers that also affect socioeconomic status as well as lifestyle 

and behavioral choices. Any program or initiative aimed at eliminating these health disparities 

must recognize the predicament facing many Native Americans and appropriately address the 

barriers that cause disproportionate health outcomes for Native Americans. 

Conclusion 

There has been tremendous improvement in health outcomes for Native Americans in the 

past several decades. Nevertheless, Native Americans continue to experience serious health 

disparities from social and cultural barriers that include lifestyle decisions and socioeconomic 

status. Health disparities are not simply a product of poverty and inadequate education. Studies 

have repeatedly shown that even when access-related factors, such as insurance coverage and 

socioeconomic status are controlled, racial and ethnic differences in health care remain. 

Perhaps most importantly, this chapter is about race and the uniquely related 

classifications of ethnic and political status accorded the Indian race. Unfortunately, in this 

country race matters when it comes to medical treatment. While much progress has been made to 

improve access to health care for people of color, studies show that people of color are less likely 

to receive certain medical procedures. Much of the unfair treatment and mistreatment stem from 

deeply rooted social inequities. The Commission makes the following recommendations to 

address these inequities: 

Racial bias and discrimination continue to play a role in medical and treatment decisions. 

As the main health provider and advocate for Native Americans, IHS has a duty to ensure that 

IHS and IHS contract service providers deliver health services that are culturally sensitive and 

free from bias. To ensure that Native Americans are provided this level of health care: 

• IHS should create separate complaint processing offices within each IHS facility to 

monitor, investigate, and resolve complaints alleging bias and discrimination in either 

IHS facilities or contract health facilities. These offices should report directly to senior 

management. 

• IHS should establish formal review and appeals procedures at the area office level and in 

headquarters to ensure timely resolution of all discrimination complaints and prompt 

notification to complainants regarding the status of their complaints. 

 

139 Everett R. Rhoades, “The Health Status of American Indian and Alaska Native Males,” American Journal of 

Public Health, vol. 93, 2003, p. 777. 
Staff Draft July 2004 44

• IHS, upon creation of its complaint processing offices, should require each office to 

produce periodic reports summarizing the number complaints, the nature of the 

complaints received, and any remedial action taken. Based on analysis of these reports, 

IHS should formulate appropriate training programs aimed at eliminating bias and 

discrimination. 

• IHS should implement formal cultural training programs aimed at teaching providers to 

present culturally specific health information and provide culturally appropriate services. 

• IHS should implement cultural training programs for non-IHS providers at contract 

health facilities. 

• IHS should, in addition to providing cultural training, expand efforts to hire more Native 

American providers who can better understand and communicate with Native American 

patients. 

• IHS and other federal agencies, working in partnership together, should create and 

implement economic development strategies aimed at increasing tribal economic 

opportunities. These strategies should be tailored to meet the needs of each individual 

tribe as identified through tribal consultations and sound research. 

• IHS should involve Native American communities in collecting and monitoring 

community health data by partnering Native American communities and tribes with 

researchers, colleges, universities, and others with technical expertise in health research 

or Indian health research, in particular. 

• HHS should increase the availability of grants to Native American communities for 

conducting health research and data collection. 

• IHS should create and implement a formal policy to ensure that adequate professional 

language assistance is available at all IHS and non-IHS contract facilities such as, the use 

of call centers where IHS can provide and direct telephone language translation services. 
Staff Draft July 2004 45

Chapter 3: Structural Barriers That Limit Native Americans’ Access to Health 

Care and Contribute to Health Disparities

Eliminating structural barriers that limit access to health care is just as critical to 

providing adequate health care as is eliminating social and cultural barriers such as racial and 

ethnic bias.1 The Institute of Medicine’s 2003 report affirmed that “access-related factors may be 

the most significant barriers to equitable care and must be addressed as an important first step 

toward eliminating health disparities.”2

There are several structural barriers that limit access to health care for Native Americans. 

These barriers are found within the actual health care system and include: 

• Management or oversight issues relating to different IHS services. 

• Geographic location of facilities. 

• Outdated and aging facilities. 

• Extended wait times at facilities and for treatment. 

• Retention and recruitment of qualified providers. 

• Misdiagnosis or late diagnosis of diseases. 

The availability and accessibility of health care for Native Americans are influenced by 

the IHS organization and its service delivery system. How IHS services are structured and where 

those services are provided significantly influence the degree to which Native Americans have 

access to health care. This chapter explores the structural barriers preventing adequate access to 

quality health care. 

Introduction to the Indian Health Service 

As explained in the introductory chapter, the federal government’s obligation to provide 

health services to Native Americans originated in treaty obligations to the Native American 

tribes. To fulfill specific treaty obligations to select tribes, the federal government began 

providing limited health services, including hospitals, physicians, medical supplies, and housing 

for physicians.3

 It was not until 1832 that Congress began appropriating funds for health 

programs for all Native Americans. At that time, Congress began funding a smallpox vaccination 

program for tribes deemed friendly to the United States and to individuals who, if they 

contracted smallpox, would pose a health threat to non-Native Americans in or near military 

 

1

 U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality, National Health 

Disparities Report, December 2003, p. 107. 2

 Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (National 

Academies Press, Washington, DC, 2002), p. 33 (hereafter cited as IOM, Unequal Treatment). 

3

 Jennie R. Joe, “The Rationing of Healthcare and Health Disparity for the American Indians/Alaska Natives,” in 

Unequal Treatment: Conforming Racial and Ethnic Disparities in Health Care, ed. National Academy of Sciences, 

2002, p. 531 (hereafter cited as Joe, “The Rationing of Healthcare”). 
Staff Draft July 2004 46

outposts.4 The federal government also sought to assimilate Native Americans into the general 

population by emphasizing Western medicine over traditional healing practices. 

In 1849, the Office of Indian Affairs, now the Bureau of Indian Affairs (BIA), took over 

health care responsibilities from the War Department. In 1954, Congress transferred the health 

responsibility from BIA to the Department of Health, Education, and Welfare, now known as the 

Department of Health and Human Services. IHS was created within the Department of Health 

and Human Services in 1955 and assumed responsibility for providing health services to Native 

Americans. IHS’ goal is to raise the health status of Native Americans to the highest possible 

level.5

 

Since its inception in 1955, IHS has provided health services to eligible Native 

Americans from federally recognized tribes. IHS is the principal federal health care provider and 

health advocate for Native Americans. All Native Americans seeking IHS services must first 

meet eligibility criteria.6 Once the eligibility requirements are met, applicants do not need to 

establish economic need to receive services.7

 However, because the eligibility requirements limit 

IHS services to members of federally recognized tribes, some Indian health advocates argue that 

the requirements are established to exclude and not to extend health care to Native Americans.8 

From the IHS perspective, however, establishing firm eligibility requirements is 

necessary to meet the demand for services in light of limited resources.9 IHS provides health care 

services to approximately 1.6 million of the 2.6 million Native Americans in the United States.10

 

4

 Joe, “The Rationing of Healthcare,” p. 531. 

5

 Indian Health Service, “Indian Health Service Introduction,” <http://www.ihs.gov/PublicInfo/PublicAffairs/ 

Welcome_Info/IHSintro.asp> (last accessed Mar. 23, 2004). The mission of IHS is “to raise the physical, mental, 

social, and spiritual health of American Indians and Alaska Natives to the highest level.” Ibid. 

6

 IHS services are provided to (1) an individual of Indian or Alaska Native descent; (2) an Indian of Canadian or 

Mexican origin, recognized by an Indian tribe or group as a member of an Indian community served by the Indian 

Health program; (3) a non-Indian woman pregnant with an eligible Indian’s child for the duration of her pregnancy 

through post partum (usually six weeks); or (4) a non-Indian member of an eligible Indian’s household and the 

medical officer in charge determines that services are necessary to control a public health hazard or an acute 

infectious disease which constitutes a public health hazard. 

A person is of Indian or Alaska Native descent as evidenced by one or more of the following factors: (1) is regarded 

by the community in which he lives as an Indian or Alaska Native; (2) is a member, enrolled or otherwise, of an 

Indian or Alaska Native Tribe or Group under federal supervision; (3) resides on tax-exempt land or owns restricted 

property; (4) actively participates in tribal affairs; (5) any other reasonable factor indicative of Indian descent. 

Indian Health Service, “Indian Health Manual,” <http://www.ihs.gov/PublicInfo/Publications/IHSManual/Part2/ 

pt2chapt1/pt2chapt1.htm#212> (last accessed July 15, 2003). 

7

 The National Academy of Sciences, Changing Numbers, Changing Needs: American Indian Demography and 

Public Health, 1996, p. 290. 

8

 Ibid. See also Ralph Forquera, Urban Indian Health (Henry J. Kaiser Family Foundation, November 2001), p. 8 

(hereafter cited as Forquera, Urban Indian Health); Delight Satter, M.P.H., research scientist, UCLA Center for 

Health Policy Research, and director, American Indian and Alaska Native Research Program, telephone interview, 

July 1, 2003. 

9 See Betty Pfefferbaum et al., Providing for the Health Care Needs of Native Americans: Policy, Programs, 

Procedures, and Practices, 21 AM. INDIAN L. REV. 211, 248 (1997) (hereafter cited as Pfefferbaum, Providing for 

the Health Care Needs of Native Americans). 

10 Indian Health Service, “Indian Health Service Introduction,” <http://www.ihs.gov/PublicInfo/PublicAffairs/ 

Welcome_Info/IHSintro.asp> (last accessed July 15, 2003). 
Staff Draft July 2004 47

These recipients are members of more than 560 federally recognized tribes in 35 states.11 IHS 

provides services primarily to the Native Americans living on or near reservations, in rural areas. 

For those 1 million Native Americans who do not meet the eligibility criteria, this very eligibility 

requirement is a major contributor to lack of access to health care. 

IHS Health Delivery Programs: Direct, Tribal, Urban Indian 

IHS is not a health insurance program; rather, it is a federally funded service, providing 

health care services to eligible Native Americans.12 According to IHS Director Dr. Charles Grim, 

it is a program of “universal eligibility but limited availability.”13 Funds for IHS health care are 

discretionary, not a personal entitlement.14 Consequently, IHS provides health care services only 

to the extent appropriated funding allows. In addition to its health services role, IHS is the 

principal health advocate for Native Americans.15 Accordingly, it collaborates with federal 

entitlement programs, state or local health care programs, and private insurance providers to 

ensure that adequate care is funded and provided. 

IHS is made up of 12 regional administrative units called “area offices,” as shown in 

Figure 1, and these area offices oversee the operation of IHS programs. Each area office provides 

administrative support such as distributing funds, monitoring programs, evaluating activities, and 

providing technical support to the hospitals, clinics, and other facilities within its region.16

 

11 Indian Health Service, “Indian Health Service Introduction,” <http://www.ihs.gov/publicinfo/publicaffairs/ 

welcome%5Finfo/ihsintro.asp> (last accessed Oct. 3, 2003). See also Indian Entities Recognized and Eligible to 

Receive Services from the United States Bureau of Indian Affairs, Notice, 67 Fed. Reg. 46,328 (July 12, 2002). 

12 The National Academy of Sciences, Changing Numbers, Changing Needs: American Indian Demography and 

Public Health, 1996, p. 290. 

13 Dr. Charles W. Grim, testimony before the U.S. Commission on Civil Rights, briefing, Albuquerque, NM, Oct. 

17, 2003, transcript, p. 104 (hereafter cited as Briefing Transcript). 

14 As will be discussed in the sections on barriers to health insurance, there is a widely held perception among 

Native Americans that they are entitled to health care based on their unique relationship and history with the federal 

government. Related, in part, to this historical view is a vigorous debate as to whether Native American health care 

should become a formal government “entitlement program.” Those in favor see entitlement status as a means of 

enforcing sufficient funding to fully meet federal health care obligations. Those opposed see entitlement as a 

potential ceiling for individual services and a potential loss of bargaining position as the federal obligation becomes 

enforceable only by individuals rather than the tribes. See Myra Munson, partner, Sonosky, Chambers, Sachse, 

Miller & Munson, telephone interview, Aug. 11, 2003; Ed Fox, executive director, Northwest Portland Area Indian 

Health Board, telephone interview, Aug. 14, 2003. 

15 Indian Health Service, “Indian Health Service Introduction,” <http://www.ihs.gov/PublicInfo/PublicAffairs/ 

Welcome_Info/IHSintro.asp> (last accessed July 15, 2003). 16 Indian Health Service, “Indian Health Service Area Map,” <http://www.dsfc.ihs.gov/ihsmap.cfm> (last accessed 

Mar. 18, 2004); U.S. Department of Health and Human Services, Fiscal Year 2005 Indian Health Service 

Justification of Estimates for Appropriations Committees, p. IHS-25. (hereafter cited as HHS, FY 2005 Indian 

Health Service Justification of Estimates for Appropriations Committees). 
Staff Draft July 2004 48

Figure 1: Indian Health Service—Service Population by Area 

Source: Indian Health Service, Trends in Indian Health 1998–99, <http://www.ihs.gov/publicinfo/publications/ 

trends98/part2.pdf> (last accessed Aug. 21, 2003). 

Within the 12 regional area offices are 153 basic local administrative units called service 

units.17 A service unit is an administrative entity, operated by either IHS or a contracting tribe 

that has the responsibility for planning, managing, and evaluating the health programs in its 

jurisdiction.18 It serves a defined geographic area smaller than that for which an area office is 

responsible and is usually centered on a single federal reservation or, in Alaska, a population 

concentration.19 

Within the 153 local administrative units, or service units, are 594 direct health care 

delivery facilities, including 49 hospitals, 231 health centers, five school health centers, and 309 

health stations, satellite clinics, and Alaska village clinics.20 Within this system, Indian tribes 

deliver IHS-funded services to their own communities with just over 50 percent of the IHS 

budget in 15 hospitals, 172 health centers, three school health centers, and 260 health stations 

and Alaska village clinics.21 For those tribes that have elected to have IHS administer their health 

 

17 Indian Health Service, Office of Public Health, Regional Differences in Indian Health 2000–2001 p. 4 (hereafter 

cited as IHS, Regional Differences). 

18 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-17; see 

also U.S. Department of Health and Human Services, Public Health Service, Indian Health Service, Indian Health 

Service Circular ND. 88-2. 

19 Ibid. 

20 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-15. 21 Ibid. 
Staff Draft July 2004 49

services, IHS provides direct services at 36 hospitals, 59 health centers, two school health 

centers, and 49 health stations.22 

The IHS-funded services are delivered in three ways: direct IHS services, tribal services, 

and Urban Indian Health Programs. These services are provided only to those qualified Native 

Americans who meet IHS eligibility criteria. For those Native Americans who qualify for IHS 

services, health services are delivered directly at IHS facilities, through tribally contracted and 

operated health programs, or at IHS contract health service facilities.23 In addition, 34 Urban 

Indian Health Programs provide limited health and referral services to approximately 150,000 

Native Americans living in cities throughout the country.24 Each of the three delivery programs 

is discussed in turn. As both the direct and tribal programs utilize and rely on the Contract Health 

Services (CHS) program to provide services that are not available at IHS and tribal facilities, a 

discussion of the Contract Health Services program follows these two sections. The Urban Indian 

Program is discussed last. 

Direct Delivery System 

The IHS direct care delivery system consists of hospitals, health centers, health stations, 

and residential treatment centers.25 Federal employees in the Indian Health Service provide 

health care services in 63 IHS-operated service units, administering 36 hospitals and 59 health 

centers, two school health centers, and 49 health stations.26 Most IHS hospitals also have active 

outpatient departments that provide dental, mental health, and other services.27 IHS-operated 

facilities will expend $674 million or 46 percent of the FY 2004 budget appropriated for noncontract services. 

Health centers are facilities physically separate from hospitals. They offer a complete 

range of ambulatory services (including primary care physicians, nursing, pharmacy, laboratory, 

and radiology services) for a minimum of 40 hours per week.28 By comparison, health stations 

are often smaller mobile units, which offer fewer outpatient services for less than 40 hours per 

week. Mid-level practitioners usually provide primary care, with physician care available on a 

regularly scheduled basis.29 

In general, IHS direct services are limited in the scope of services provided in 

comparison to non-IHS facilities. IHS hospitals are typically smaller and have fewer beds than 

other U.S. community hospitals. Aside from the three large IHS hospitals, the Alaska Native 

 

22 Ibid. 

23 Indian Health Service, “Fact Sheet,” <http://www.ihs.gov/PublicInfo/PublicAffairs/Welcome_Info/ThisFacts.asp> 

(last accessed Sept. 4, 2003) (hereafter cited as IHS, “Fact Sheet”). 

24 Ibid. Joe, “The Rationing of Healthcare, ” p. 534. Currently, only about 38 percent of Native Americans live on 

federal trust lands; the remainder resides in off-reservation or urban communities. See also ibid., p. 529. 

25 IHS, “Fact Sheet.” 

26 IHS, Regional Differences, p. 4. 27 Pfefferbaum, Providing for the Health Care Needs of Native Americans, pp. 211, 233. 

28 IHS, Regional Differences, p. 13. 

29 Indian Health Service, “IHS Glossary of Terms,” <http://www.ihs.gov/aboutihs/thisglossary.asp> (last accessed 

Dec. 30, 2003). 
Staff Draft July 2004 50

Medical Center in Anchorage, Alaska; the Gallup Indian Medical Center in Gallup, New 

Mexico; and the Phoenix Indian Medical Center in Phoenix, Arizona, IHS hospitals have fewer 

than 50 beds and most are without surgical or obstetrics services, compared with an average of 

73 beds for all rural hospitals and 223 beds for all urban hospitals nationally.30 In addition, IHS 

hospitals provide limited inpatient services and fewer high-tech services.31 

Over time, IHS has shifted from inpatient care to more ambulatory care services.32 The 

shift in IHS service follows the national trend where the predominant form of health care 

delivery is ambulatory care services. New medical and diagnostic procedures and other 

technological advances have allowed more services to be delivered on an outpatient basis.33

According to the most recent Trends in Indian Health report by IHS, the average daily inpatient 

load for IHS, tribal, and contract general hospitals declined by 58 percent from 2,353 in 1980 to 

981 in 1997; ambulatory medical visits increased 309 percent during the same period.34

Despite IHS efforts to meet the health care needs of Native Americans, limited funding 

has led to the rationing of services.35 While health services are rationed at both direct and tribal 

programs, because the rationing of services most severely affects contract health services, a more 

detailed discussion of rationing is included in the section on the Contract Health Services 

program. 

As will be addressed in detail in a latter section, IHS contracts with non-IHS providers to 

provide health services where services are not available through IHS direct delivery or tribal 

programs.36 IHS relies on the Contract Health Services program to provide complicated services 

to many widespread and remote areas with small populations.37 The annual funding for CHS 

increased 27 percent from FY 1998 to FY 2003. As IHS uses more of its resources for contract 

services, fewer resources are available for IHS direct services. As a result, it becomes more 

difficult to develop and improve IHS services.38

Despite a lack of resources that limits both quantity and quality of IHS-provided health 

care, there are advantages to a federally operated system. First, the direct delivery system does 

 

30 Joe, “The Rationing of Healthcare,” p. 534; U.S. Department of Health and Human Services, Office of Inspector 

General, Hospital Closure: 1998, July 2000, p. 1. 

31 Joe, “The Rationing of Healthcare,” pp. 534–35; Pfefferbaum, Providing for the Health Care Needs of Native 

Americans, p. 234. 

32 Jim Cussen, chief executive officer, Claremore Indian Hospital, written response to USCCR questions, May 27, 

2004; Pfefferbaum, Providing for the Health Care Needs of Native Americans, p. 234. See generally South Carolina 

Hospital Association, “Glossary,” <http://www.bluecrossca.com/bus_units/lgrp/50plus_Glossary.htm> (last 

accessed Sept. 30, 2003). Ambulatory care services are defined as “[s]ervices rendered to persons not confined 

overnight, including emergency, clinical, laboratory, radiology and home health services. Often referred to as 

‘outpatient’ services.” Ibid. 

33 Joachim Roski and Rebecca Gregory, “Performance Measurement for Ambulatory Care: Moving Towards a New 

Agenda,” International Journal for Quality in Health Care, vol. 13, 2001, p. 447. 

34 IHS, Trends in Indian Health, pp. 174–75, 200–01, 226. 

35 Craig Vanderwagen, M.D., acting chief medical officer, Indian Health Service, interview in Rockville, MD, July 

21, 2003. See also Roanhorse Testimony, Briefing Transcript, p. 169. 

36 IHS, “Fact Sheet.” 

37 Pfefferbaum, Providing for the Health Care Needs of Native Americans, p. 235. 38 Ibid. 
Staff Draft July 2004 51

bring services to remote Indian reservations where market conditions would otherwise prevent 

the delivery of health services.39 The frequent closure of rural hospitals and a decreasing number 

of providers who leave rural areas to join managed care organizations elsewhere are among the 

factors that make it more difficult for rural residents to access health services.40 

Furthermore, many small tribes lack the resources and expertise to provide or manage 

care on their own; IHS direct service brings health care facilities and services to often remote 

reservations.41 In short, IHS brings both resources and expertise.42 The ability of the federal 

government to provide federal benefits (of greater value than the tribes can afford to pay) and 

therefore recruit more and better qualified individuals is one reason some tribes choose not to 

enter into self-governance, or compacting, agreements to operate their own health programs.43 In 

addition, as long as the government is providing care there is less fear that all funding will be 

withdrawn. As the tribes take over, some fear that the federal government will use that as 

motivation to back out of its obligation to pay.44

Second, while disparities still exist, the health status of Native Americans has 

improved.45 Several sources familiar with Native American health care issues agree that IHS has 

done a remarkably good job considering formidable obstacles and limited funding.46 Since 1973, 

mortality rates have declined for the following: tuberculosis (82 percent); maternal deaths (78 

percent); infant deaths (66 percent); accidents (57 percent); injury and poisoning (53 percent); 

and pneumonia and influenza (50 percent).47

Despite the noted improvements and advantages of the direct IHS delivery system, health 

disparities continue to disproportionately affect Native Americans. The latter sections of this 

chapter explore the specific factors that affect access to quality care. As will be established, both 

the direct and tribal delivery systems are plagued with problems that must be addressed to reach 

the goal of eliminating health disparities affecting Native Americans. 

 

39 Lyle Jack, tribal councilman, Oglala Sioux Tribe, telephone interview, Oct. 23, 2003. 

40 U.S. Department of Health and Human Services, Agency for Healthcare Research and Quality, “Research in 

Action: Improving Health Care for Rural Populations,” <http://www.ahrq.gov/research/rural.htm> (last accessed 

Apr. 5, 2004). 

41 Michael Bird, interview in Washington, DC, Apr. 6, 2004. 

42 Jack interview. 

43 Taylor McKenzie, former vice president, Navajo Nation, telephone interview, Sept. 11, 2003. See the “Tribal 

Health Programs” section for a detailed discussion of self-governance agreements. 

44 See Joe, “The Rationing of Healthcare,” p. 544. 

45 See Perez Testimony, Briefing Transcript, p. 15. Indian Health Service, Trends in Indian Health 1998–99, 

<http://www.ihs.gov/publicinfo/publications/trends98/part2.pdf> (last accessed Aug. 21, 2003) (hereafter cited as 

IHS, Trends in Indian Health 1998–99). See also Perez Testimony, Briefing Transcript, pp. 14, 15. 

46 Jennifer Giroux, M.D., Indian Health Board of Minneapolis, health care policy research and administrative fellow, 

Center for American Indian and Minority Health, University of Minnesota, telephone interview, July 23, 2002; 

Jennie Joe, Ph.D., M.P.H., R.N., professor, Family and Community Medicine, University of Arizona School of 

Medicine, telephone interview, June 24, 2003; T.J. Petherick, M.P.H., executive director, National Indian Health 

Board, telephone interview, July 2, 2003; Delight E. Satter, M.P.H., research scientist, UCLA Center for Health 

Policy Research, director, American Indian and Alaska Native Research Program, telephone interview, July 1, 2003. 

47 See Perez Testimony, Briefing Transcript, pp. 14–15. IHS, Trends in Indian Health 1998–99. See also Perez 

Testimony, Briefing Transcript, pp. 14, 15. 
Staff Draft July 2004 52

Tribal Health Programs 

In addition to IHS direct services, the Indian Self-Determination and Education 

Assistance Act, as amended, referred to as the Self-Determination Act, allows tribes to contract 

or compact to provide health care services to their tribal members.48 The tribes can contract or 

compact with the federal government to plan, conduct, and administer programs that are 

authorized under Section 102 of the act.49 Today, IHS administers self-determination contracts 

under Title I and self-governance compacts under Title V. A self-determination contract is a 

contract, grant, or cooperative agreement entered between a tribal organization and IHS for the 

planning, conduct, and administration of programs or services that are otherwise provided to 

Indian tribes.50 A self-governance compact is a legally binding and mutually enforceable written 

agreement that affirms the government-to-government relationship between a self-governance 

tribe and the United States.51 Under a Title I contract, a tribal organization contracts to conduct 

and administer certain portions of a health program operated by IHS. Under a Title V compact, 

on the other hand, a tribal government compacts to take over the operation of a health program. 

Congress first enacted the Self-Determination Act in 1975 to further the goal of Native 

American self-determination by ensuring maximum Native American participation in the 

management of federal programs and services for Native Americans.52 The act authorizes tribes 

to take over the management and administration of programs through contractual arrangements 

with the agencies that previously administered them.53 Under the act, tribes receive funding for 

the programs they contract or compact to manage and operate. IHS and the Bureau of Indian 

Affairs are two federal agencies that enter into “self-determination contracts” with tribes. 

The self-governance programs, created pursuant to the Self-Determination Act, were 

designed to provide tribal governments with more control and decision-making authority over 

the day-to-day operation of programs providing services to Native Americans. The SelfDetermination Act also promotes the government-to-government relationships referenced in the 

Constitution. Where tribes choose not to contract or compact for health programs, IHS continues 

to provide health services to the tribes.54 While some tribes have chosen to continue receiving 

 

48 Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203 (codified as 

amended in scattered sections of 25 U.S.C.). Under this law, tribes can contract with the federal government to take 

over the management of all or part of their health care programs; subsequent amendments allowed tribes to compact 

with the federal government to obtain more power and independence in the management of their health programs. In 

1992, the Self-Determination Act was reauthorized through amendments to IHCIA. See Indian Self-Determination 

Act of 1992, Pub. L. No. 102-573, Title VIII §813(a), 106 Stat. 4590 (codified as amended in scattered sections of 

25 U.S.C.). 

49 25 U.S.C.S. §§ 450 et seq. (2000). 

50 25 U.S.C. § 450b(j) (1994). 

51 42 C.F.R. § 137.30 (2004). 

52 Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203 (codified as 

amended in scattered sections of 25 U.S.C.). 

53 Id.

54 It is important to recognize that the decision to continue to rely on IHS for health services “is as legitimate a selfgovernance decision as that of a tribe that chooses to operate the program themselves.” Munson Testimony, Briefing 

Transcript, p. 252. 
Staff Draft July 2004 53

health care services directly from IHS, more tribes are taking on the management and delivery of 

health care.55

In 1988, Congress amended the Self-Determination Act through the enactment of the 

Tribal Self-Governance Demonstration Project Act.56 Under the 1988 demonstration project, 

tribes first began compacting BIA programs. The tribal compacts under the demonstration 

project greatly expanded with the passage of the Tribal Self-Governance Demonstration Project 

Act of 1991.57 In 1992, the demonstration project was extended to include 30 tribes within IHS.58

The Demonstration Project Act simplified the self-determination contracting processes and 

facilitated the assumption of IHS programs by tribal governments. The act also authorized the 

transfer of IHS program funds that would have been spent by IHS to tribes under a compacting 

process. Title III of the Self-Determination Act, under the Demonstration Project Act, authorized 

the signing of self-governance compacts for a specific number of tribes that meet certain 

criteria.59 In 1994, the self-governance demonstration project became permanent for Department 

of the Interior programs.60 In 2000, under Title V of the Self-Determination Act, the selfgovernance programs at IHS became permanent.61

Since IHS began its first Title III compact negotiations under the demonstration project in 

May 1993, IHS has gradually increased the self-governance compacts and by 1998, IHS had 

entered into 39 self-governance compacts and 55 annual funding agreements.62 Currently, there 

are 61 self-governance tribal compacts and 81 funding agreements representing 285 tribes, and 

providing health services to more than 51 percent of the tribes.63 During FY 2003, $796 million 

of the $1.47 billion appropriated to IHS for non-contract services was transferred to the tribes 

 

55 Joe, “The Rationing of Healthcare,” p. 534. 

56 The Tribal Self-Governance Demonstration Project Act mandated that the Secretary of the Department of the 

Interior (DOI) select 20 tribes, for the period of five years, to plan, conduct, consolidate, and administer programs, 

services, and functions previously administered by DOI. See Pub. L. No. 10-472, 102 Stat. 2285 (1988) (codified as 

amended in 25 U.S.C. § 450f note). The project required DOI to negotiate and to enter into an annual written 

funding agreement with the participating tribes. This funding agreement allowed the participating tribal 

governments to “redesign programs, activities, functions or services and to reallocate funds for such programs, 

activities, functions or services.” Id. 

57 See Tribal Self-Governance Demonstration Project Act, Pub. L. No. 102-184, §1, 105 Stat. 1278 (repealed at 25 

U.S.C.S. §§ 458aaa et. seq. (2000)). National Indian Health Board, Tribal Perspectives on Indian SelfDetermination and Self-Governance in Health Care Management, 1998, p. 4 (hereafter cited as NIHB, Tribal 

Perspectives). 

58 See Indian Health Amendments of 1992, Pub. L. No. 102-573, Title VII, § 814, 106 Stat. 4590 (1992) (codified as 

amended in 25 U.S.C. § 450f). 

59 Before a tribe can enter into a self-governance compact, it must first successfully complete three years of tribal 

management under self-determination contracts. 25 U.S.C. § 458bb(c)(3). 

60 Tribal Self-Governance Act of 1994, Pub. L. No. 103-413, Title II, 108 Stat. 4270 (1994) (codified as amended in 

25 U.S.C. §§ 450 note, 458aa to 458hh). 

61 Tribal Self-Governance Amendments of 2000, Pub. L. No. 106-260, Title V, 114 Stat. 711 (codified as amended 

in scattered sections in 25 U.S.C.). 

62 Tribal Self-Governance Amendments of 1998: Hearing on H.R. 1833 Before the Senate Indian Affairs Committee, 

105th Cong. (1998) (testimony of Luana Reyes, director of headquarters operations, Indian Health Service, U.S. 

Department of Health and Human Services). 

63 Indian Health Service, Office of Tribal Self-Governance, “Purpose and Method of Operation,” <http://www.ihs. 

gov/NonMedicalPrograms/SelfGovernance/index.asp> (last accessed Sept. 22, 2003). 
Staff Draft July 2004 54

under these programs.64 In recent years, the total funding administered under Title I contracts and 

Title V compacts has doubled and the scope of services managed and provided by tribal 

programs has expanded proportionately.65 

Historically, tribes first began assuming control of community services and then 

expanded into medical care.66 Today, almost all Community Health Representative programs67

and community-based components of the alcohol programs are tribally operated.68 The number 

of tribally operated hospitals has risen and tribes now manage over 20 percent of IHS-funded 

hospitals. The number of ambulatory medical facilities managed by tribes has also increased. 

Native American tribes now manage 13 hospitals, 172 outpatient health centers, 176 village 

clinics in Alaska, 84 health stations, and three school health programs.69

While both Title I contracts and Title V compacts are tribally operated programs, they 

differ in the level of IHS’ overall role and oversight. Under the Self-Determination Act, IHS is 

required to provide technical assistance to tribes in developing Title I contract proposals and to 

oversee the contracts once they are awarded.70 Under Title I contracts, IHS also makes field 

visits to oversee the operation of the contracted programs.71 Although these tribally operated 

facilities are intended to promote tribal self-governance, IHS considers Title I contracted tribal 

programs as extensions of IHS, and thus they are not independent.72 Under the Title I contracts, 

IHS provides technical assistance, helps prospective tribal contractors develop applications, and 

assumes responsibility, oversight, and control of these tribally operated health care services.73 

Unlike Title I self-determination contracts where tribes take over and manage existing 

health programs without making substantial programmatic changes, under the Title V selfgovernance compacts, tribes exercise more independence and flexibility in the management and 

operation of their health programs. Title V compacts allow tribes more flexibility in 

reprioritizing or changing the health programs to meet what they perceive to be the most urgent 

 

64 Ibid. See also U.S. Department of Health and Human Services, “FY 2004 Budget in Brief,” <http://www.hhs.gov/ 

budget/04budget/fy2004bib.pdf> (last accessed July 14, 2003) (hereafter cited as HHS, “FY 2004 Budget in Brief”). 

65 U.S. Department of Health and Human Services, Indian Health Service, “Self-Determination,” p. supp-59, 

<http://www.ihs.gov/AdminMngrResources/Budget/downloads/FY_2001/Sd.PDF> (last accessed Mar. 25, 2004). 

66 Ibid. 

67 The Community Health Representative Programs are tribally administered outreach programs. They are based on 

the concept that Native American community members, trained in the basic skills of health care provision, disease 

control, and prevention, can successfully create change in community acceptance and utilization of Western health 

care resources. Community Health Representatives are Native people well positioned within their communities to 

provide the needed education and related services that can result in healthier lifestyles and early treatment. U.S. 

Department of Health and Human Services, Indian Health Service, “Community Health Representatives,” 

<http://www.ihs.gov/adminmngrresources/budget/old_site/cj2002/svcs web docs/communityhealth 

representatives.doc> (last accessed June 1, 2004). 

68 U.S. Department of Health and Human Services, Indian Health Service, “Self-Determination,” p. supp-59, 

<http://www.ihs.gov/AdminMngrResources/Budget/downloads/FY_2001/Sd.PDF> (last accessed Mar. 25, 2004). 

69 IHS, Regional Differences, p. 17; U.S. Department of Health and Human Services, Indian Health Service, 

Response to the Commission’s Interrogatory 5, April 2004 (hereafter cited as IHS, Interrogatory Response). 70 Indian Self-Determination and Education Assistance Act; IHS, Interrogatory Response 39. 

71 Indian Self-Determination and Education Assistance Act; IHS, Interrogatory Response 39. 

72 Pfefferbaum, Providing for the Health Care Needs of Native Americans, pp. 211, 237. 73 Ibid., p. 237. 
Staff Draft July 2004 55

health care needs in their communities.74 Before a tribe can qualify to compact its health 

programs, the tribe seeking to compact must have successfully completed tribal management 

under self-determination contracts for a period of three years.75 A qualified tribe may apply and 

take over a health program under a Title V compact through negotiation with IHS under less 

restrictive terms and with more significant options.76 The only oversight of compacts comes in 

the form of annual financial audits that both Title I contracts and Title V compacts are 

subjected.77 Compacting, created in response to criticisms that IHS oversight over tribal 

programs was excessive, promotes and supports tribal initiative.78 Compacting also gives more 

authority to the tribes and reduces IHS bureaucracy.79

More specifically, under Title I self-determination contracts, before a tribe can redesign 

programs or reallocate funds under Title I self-determination contracts, the tribe must obtain IHS 

approval.80 Under the present self-governance compact, the tribe has the flexibility to redesign 

programs to better address its local needs and to transfer funds from one budget category to 

another without the approval of IHS.81 The flexibility of the self-governance compact enhances 

the effectiveness of tribally operated programs.82 Furthermore, the tribe’s ability to redesign its 

program without IHS approval reduces bureaucracy.83

For example, the tribal programs in the Bristol Bay Area Health Corporation in Alaska 

reduced IHS bureaucracy and increased tribal autonomy. While IHS set the standards and 

measures to evaluate tribal programs, under the self-governance compact, the corporation jointly 

developed more relevant and less burdensome baseline measurements for the annual evaluation 

of its programs.84 The corporation’s autonomy over its health program has also expanded, as it is 

no longer required to follow the regulations applicable to self-determination contracts, which it 

had interpreted as micromanagement of internal operations.85 Under the self-governance 

compact, the corporation now operates more efficiently and effectively.86 The corporation has 

full control over its contract funds by receiving the funds at the beginning of the contract year. It 

no longer needs to obtain IHS approval for payment of contract funds that the self-determination 

contracts required. Under the self-determination contracts, IHS disperses portions of the contract 

funds throughout the year based on agency approval. Self-governance compacts have had a 

 

74 Ibid. 

75 25 U.S.C. § 458bb(c)(3). 

76 IHS, Interrogatory Response 39. 

77 Ibid. 

78 Pfefferbaum, Providing for the Health Care Needs of Native Americans, p. 237. 79 Ibid. 

80 To Amend the Indian Self-Determination and Education Assistance Act to Provide for Further Self-Governance by 

Tribes: A Hearing on Title V and Title VI of H.R. 1833 before the Senate Indian Affairs Committee, 105th Cong. 

(1998) (testimony of Robert J. Clark, president/CEO, Bristol Bay Area Health Corporation). 

81 Ibid. 

82 Ibid. 

83 Ibid. 

84 Ibid. 

85 Ibid. 

86 Ibid. 
Staff Draft July 2004 56

dramatic impact on tribal health programs in Alaska.87 Today, Alaska Natives operate almost the 

entire IHS health care delivery system in Alaska.88

Another advantage of tribal self-governance has been an increase in the number of Native 

American employees. Consequently, the knowledge gained of specific techniques and the 

general importance of health remains in the community, building a foundation or “corporate 

knowledge” that might otherwise have rotated to other communities with the transfer of Public 

Health Service employees.89 Employees’ earnings, as well, usually remain in the community, 

providing economic stimulus.90

As tribes take over the management and operation of their health programs, the quality of 

care provided improves by being more responsive to local needs.91 Tribes participating in the 

self-governance program say it has significantly improved the health and well-being of their 

tribal members.92 Through the administration and management of their own health programs, 

tribes have more flexibility to tailor programs to meet the specific needs of their tribal 

members.93 Therefore, federal funds are more effectively and efficiently used to address the local 

health needs of Native Americans.94

Finally, tribal control creates two financial gains for health care. First, the tribes become 

more efficient at third-party recovery because they recognize the direct increase in the amount of 

money available for the purchase of additional health services.95 Second, the tribes have become 

willing to seek out private and public grants, knowing that their share of IHS funding will not be 

reduced as a result.96

 

87 Ibid. 

88 Ibid. 

89 Munson interview. 

90 Ibid. For example, in South Dakota Native American health care infuses $170 million into the local economy with 

an overall impact in excess of $512 million. See David Melmer, “Health Care—A State Issue,” Indian Country 

Today, vol. 23, no. 26, Dec. 10, 2003, p. 1. 

91 U.S. Department of Health and Human Services, Indian Health Service, Office of Tribal Self-Governance, 

“Purpose and Method of Operation,” pp. 539–40, <http://www.ihs.gov/NonMedicalPrograms/Self 

Governance/index.asp> (last accessed Mar. 25, 2004); see also Joe, “The Rationing of Healthcare.” 

92 U.S. Department of Health and Human Services, Indian Health Service, Office of Tribal Self-Governance, 

“Purpose and Method of Operation,” <http://www.ihs.gov/NonMedicalPrograms/SelfGovernance/index.asp> (last 

accessed Mar. 25, 2004); Draft Legislation to Reauthorize the Indian Health Care Improvement Act of 1976: A 

Hearing Before the Senate Indian Affairs Committee, 106th Cong. (2000) (testimony of H. Sally Smith, chairperson, 

National Indian Health Board). 

93 U.S. Department of Health and Human Services, Indian Health Service, Office of Tribal Self-Governance, 

“Purpose and Method of Operation,” <http://www.ihs.gov/NonMedicalPrograms/SelfGovernance/index.asp> (last 

accessed Mar. 25, 2004). 

94 Ibid. 

95 Third-party recovery is the reimbursement of IHS by other health care providers obligated to pay for health 

services. Typically, these providers include, Medicare, Medicaid and private insurance companies. By law, IHS is 

the payor of last resort. A more detailed discussion is provided in Chapter 4. 96 Munson interview. 
Staff Draft July 2004 57

Generally, the shift toward tribal autonomy in health care under the self-governance 

agreements has been a dramatic success.97 Tribes have redirected resources based on local 

priorities and needs, resulting in more effective use of those resources.98 Because tribes have full 

control over their programs and are less restricted by IHS regulations, they are able to 

consolidate and redesign health programs to meet the needs of their own tribal members. 

Virtually every tribe that has taken control of health facilities has expanded services.99 The 

following paragraphs relate some tribal experiences confirming this success. 

The Cherokee Nation was one of the first self-governance compacting tribes under the 

demonstration project. In every service category, the Cherokee Nation has expanded the services 

since taking over.100 It has developed partnerships with state and local governments as well as 

private entities, including nearby teaching universities, to expand and diversify its services.101

According to Chris Walker, executive director of the Cherokee Nation Health Services, the 

Cherokee Nation has maximized its resources to expand and create more services for its tribal 

members through various partnerships, third-party collections, and reallocation of its IHS 

funding, as well as its tribal funds.102

According to the director of health of the Wampanoag Tribe of Gay Head, tribal 

operation of its health program has allowed the tribe more flexibility and autonomy to create 

solutions to the health problems confronting its community.103 Furthermore, the tribe has gained 

full control of its funding by receiving it from IHS at the beginning of each fiscal year.104

Since the Alamo Navajo Chapter, a political subdivision of the Navajo Nation, began 

contracting small portions of IHS health care activities 25 years ago, it has seen growth in 

facilities and staff.105 According to Bob Newcombe, the health services division director of the 

Alamo Navajo School Board, the Indian Self-Determination Act has “created a greater level of 

sophistication and health capacity building in Indian country than existed two decades ago.”106

The Shoshone-Paiute Tribes of the Duck Valley Indian Reservation, after nearly losing 

accreditation of its facility in the first two years of tribal operation because it did not receive 

 

97 Paula Williams, Indian Health Service, interview in Washington, DC, Sept. 8, 2003; Dorothy Dupree, Centers for 

Medicare & Medicaid, telephone interview, June 30, 2003; Don Kashevaroff, Alaska Native Tribal Health 

Consortium, telephone interview, Sept. 3, 2003. 

98 On legislation relating to Native Health Care: A briefing on S. 299 and S. 406 before the Senate Indian Affairs 

Committee, 106th Cong. (1999) (testimony of Chris Walker, executive director, Cherokee Health Services; Melanie 

Knight, Government Resources, Cherokee Nation; and W. Ron Allen, Jamestown S’Klallam Tribe). 

99 NIHB, Tribal Perspectives; Walker interview; Knight interview; Munson interview. 100 Chris Walker, executive director, Cherokee Health Services, interview in Washington, DC, Apr. 23, 2004. 

101 Ibid. 

102 Ibid. 

103 Freddy Rundlet, director of health, Wampanoag Tribe of Gay Head, e-mail response to USCCR questions, Apr. 

29, 2004. 

104 Ibid. An added benefit is the ability to earn interest on those funds throughout the year. 

105 Bob Newcombe, health services division director of the Alamo Navajo School Board, Inc., e-mail response to 

USCCR questions, May 3, 2004. 

106 Ibid. 
Staff Draft July 2004 58

contract support payments, tripled third-party collections and stabilized its physician staffing.107

It no longer has IHS providers rotate through on a short-term basis and it is fully staffed with 

over a dozen more positions than when IHS ran the facility.108 The tribes’ health facility is 

evaluating the possibility of adding a third dental operatory and technology such as a CT scanner 

to better serve its beneficiaries.109

According to Bill Elliot, health director of the Fallon Paiute Shoshone Tribe, after having 

worked for four tribes, he has found that “by far, self-governance provides the tribe with better 

services, more services, and services which are cost effective and more efficient.”110 The 

Yerington Paiete Tribe took over an IHS program that offered care only three days per week 

without a physician, and expanded it to provide services six days a week with a full-time 

physician, a full-time nurse practitioner, and a part-time physician.111 The tribe also successfully 

took over the Contract Health Services program with huge deficits. Prior to the takeover, the 

CHS program severely restricted its services to “life and limb emergency care.” Since the tribal 

takeover, the CHS program has become an integrated system that carries over funding each 

year.

112 The tribe is now able to provide a wide variety of services, including elective 

procedures.113

The success of tribally operated health programs also has been documented in a report by 

the National Indian Health Board (NIHB). According to the 1998 report, Tribal Perspectives on 

Indian Self-Determination and Self-Governance in Health Care Management, tribes that have 

taken over their health programs under either contracting or compacting agreements have 

reported improvement in the quality of care.114 This study confirms that tribes with tribally 

operated health programs have improved the quality, quantity, and accessibility of services. 

The report found that with self-governance agreements tribes have expanded programs.115

When IHS direct programs and tribally operated programs are compared, the contracting and 

compacting tribes had 50 percent more community-based programs; all had at least one new 

clinical services program; 34 percent had more auxiliary services; and all had at least one new 

prevention program, with 68 percent having more than one additional prevention program.116

Similarly, tribally operated programs added more facilities than IHS direct programs. For 

those tribes that contract and compact, the study found that 49 new facilities were added and 12 

 

107 Alan Burgess, tribal health administrator/hospital chief executive officer, Shoshone-Paiute Tribes, e-mail 

response to USCCR questions, May 1, 2004. 

108 Ibid. 

109 Ibid. 

110 Bill Elliott, health director, Fallon Paiute Shoshone Tribe, e-mail response to USCCR questions, May 14, 2004. 111 Ibid. 

112 Ibid. 

113 Ibid. 

114 See generally NIHB, Tribal Perspectives. 115 NIHB, Tribal Perspectives, vol. 2, p. 76. 116 Ibid., vol. 1, pp. 4–5. 
Staff Draft July 2004 59

facilities were closed, for a net gain of 37 facilities.117 The IHS direct service tribes, conversely, 

added nine new facilities but closed eight, for a net gain of one.118

Overall, tribes found success in operating their health programs under the selfgovernance agreements. One major contributor to this success is the tribe’s ability to utilize other 

incomes and resources to supplement IHS funding.119 The NIHB study found that the tribes are 

more likely to use income from economic enterprises to support their health care services and to 

build new facilities when they operate their own health care programs under contract or 

compact.120

Tribal self-governance has also brought improvements in the quality of care. Most trial 

leaders and health directors surveyed by the NIHB indicated that the quality of care has 

improved through tribal compacts and contracts.121 The quality of care is measured by waiting 

times, types of services, number of people served, and overall health care system.122 More 

specifically, 57 percent of tribal leaders and 84 percent of tribal health directors participating in 

the survey indicated that the quality of care had gotten “better” over the past three to four 

years.123 Moreover, tribal leaders and health directors from compacting tribes more commonly 

responded that the quality of care is continuing to get “better.”124 Overall, the NIHB study found 

tribes that choose to operate their own health programs are better able to add services and 

improve care.125

While tribal operation of health programs has its advantages, potential drawbacks exist. 

The most significant is the inability to take advantage of “economy of scale,” or the fall in 

average costs resulting from an increase in the scale of production.126 Economies of scale in 

health care delivery reduce costs by taking advantage of increased purchasing power in the same 

manner that large corporate retail stores provide reduced prices to consumers of retail goods. 

A second drawback stems from the lack of data coordination and reporting that occurs 

when tribes act independently of IHS. As a result of tribal autonomy, not all tribes contribute 

health data to IHS and this affects the availability and accuracy of data on overall Native 

American health status, and program administration and funding. Dave Baldridge, formerly with 

the National Indian Council on Aging, is especially critical of the impact these data problems 

have on the ability to address health concerns on a national level.127 In the context of reporting 

 

117 Ibid., p. 5. 

118 Ibid. 

119 Ibid., p. 6. 

120 Ibid. 

121 Ibid., p. 7. 

122 Ibid., p. 8. 

123 Ibid., p. 7. 

124 Ibid. 

125 Ibid. 

126 Pfefferbaum, Providing for the Health Care Needs of Native Americans, pp. 211, 237. See also Collins English 

Dictionary, “economy of scale,” <http://www.wordreference.com/english/definition.asp?en=economy+of+scale> 

(last accessed Dec. 17, 2003). 

127 Baldridge Testimony, Briefing Transcript. 
Staff Draft July 2004 60

data on behavioral health, he sees the potential for “500 tribes operating in 500 different 

directions.”128 If health data are not collected and reported to a central entity, he fears that trends 

in disease incidence, prevention, and treatment, and other health-related information will be 

underreported and could, in the long term, undermine progress in eliminating Native American 

health disparities. 

Third, small tribes often lack the resources and expertise to take over their own health 

programs. While self-determination contracts and self-governance compacts have allowed large 

tribes to improve health care services, not all small tribes have been able to take advantage of 

these programs. Even for the tribes that have taken over their health programs, small tribal 

services generally lack the technology and the knowledge gained in a larger health care 

system.129 As a result, tribal programs are not able to offer more complicated health services and 

these services are often contracted out to non-IHS facilities under the Contract Health Services 

program. To the extent that tribal programs are under the same financial constraints as direct 

delivery systems, they face similar obstacles in providing access to quality care. Because tribal 

programs also rely on the Contract Health Services program to provide specialty care and other 

services not available at tribal facilities, they also face the same formidable obstacles associated 

with the Contract Health Services program to be discussed in the next section. 

Contract Health Services Program 

Through its Contract Health Services (CHS) program, IHS purchases primary and 

specialty health care services for eligible Native Americans when services are not available 

through IHS direct or tribal services.130 More specifically, IHS may purchase medical care and 

services from contract health facilities in “situations where: (1) no IHS direct care facility exists; 

(2) the direct care element is incapable of providing required emergency and/or specialty care; 

(3) the direct care element has an overflow of medical care workload; and (4) supplementation of 

alternate resources (i.e., Medicare, private insurance) is required to provide comprehensive care 

to eligible Indian people.”131 Approximately 18.5 percent of the IHS clinical services budget is 

appropriated for CHS.132 IHS administers 48 percent and the tribes manage 52 percent of the 

CHS programs.133 

To be eligible for contract health services, an individual must live on a reservation 

located within a Contract Health Service Delivery Area (CHSDA), or reside within a CHSDA 

and either be a member of the tribe located on that reservation or maintain close economic and 

social ties with that tribe.134 

 

128 Dave Baldridge, telephone interview, Nov. 4, 2003. 

129 Ibid. 

130 This includes patients of IHS and tribally operated facilities. See Indian Health Service, “Glossary,” 

<http://www.ihs.gov/PublicInfo/PublicAffairs/Welcome_Info/ThisGlossary.asp> (last accessed Dec. 18, 2003). 

131 IHS, Interrogatory Response 5. 

132 IHS, Interrogatory Response 2. 

133 Ibid. 

134 U.S. Department of Health and Human Services, Indian Health Service, “IHS Manual: Contract Health Services,” 

p. 12, <http://www.ihs.gov/PublicInfo/Publications/IHSManual/Part2/pt2chapt3/pageone.htm> (last accessed June 

21, 2004) (hereafter cited IHS, “Contract Health Services Manual”). 
Staff Draft July 2004 61

Contract Health Service Delivery Areas are statutorily established and may be 

redesignated by Congress.135 In addition, the Secretary of HHS may redesignate the Contract 

Health Service Delivery Areas. The Secretary’s decision to redesignate a delivery area may come 

as a result of a redesignation request from affected tribal group(s), or from IHS after participation 

with the affected tribal group(s).136 After a consultation with the tribal governing body of those 

reservations included in the CHSDA, the Secretary of HHS may redesignate a delivery area.137

Because the Contract Health Services program requires that a patient live in the CHSDA 

identified for his or her tribe, accessibility to IHS contract health care services is effectively 

denied when individuals move from their home reservation to urban or rural locations, outside 

the designated CHSDAs.138 This creates access issues for Native Americans who live in urban 

areas. 

According to IHS regulations, IHS is the payor of last resort. This means that when a 

Native American who receives CHS services is eligible for alternate resources such as Medicaid 

or Medicare, the patient must exhaust all alternate resources before IHS is required to pay. In 

addition, if a Native American is eligible but does not have alternate resources, IHS assists the 

patient in applying for alternate resources.139

In addition, access to CHS is determined by the availability of funds and therefore, 

services under the CHS program are provided only to the extent that funding is available.140 IHS 

has the authority under its regulations to establish priorities based on medical needs when CHS 

funds are insufficient to provide for necessary health services.141 Accordingly, IHS has 

established medical priorities for CHS.142 Tribal programs are also required to follow IHS 

regulations and use the IHS Medical Priorities as guidelines for setting their medical priorities.143

There are five levels of medical priority. Priority I: immediate threat to life, limb or 

senses (emergent/acutely urgent care services); Priority II: urgent care (primary and secondary 

care services); Priority III: preventive care; Level IV: chronic tertiary and extended care services; 

and Level V: excluded services.144 These IHS medical priority levels are reviewed annually.145

Ultimately, the availability of funds determines the medical care that can be provided. Because 

of insufficient funds, most areas can only pay for Priority I care.146 Following the IHS Medical 

Priority guidelines, each area office develops its own Area Medical Priorities that integrate the 

 

135 42 C.F.R. § 136.23 (2004); IHS, “Contract Health Services Manual,” p. 12. 

136 42 C.F.R. § 136.22 (2004); IHS, “Contract Health Services Manual,” p. 9. 

137 IHS, “Contract Health Services Manual,” p. 10. 138 Indian Health Service, “Health Care Away From Home Reservation,” <http://www.ihs.gov/GeneralWeb/ 

HelpCenter/CustomerServices/CHSDA.asp> (June 21, 2004). 

139 42 C.F.R. § 136.23(e) (2004); see also IHS, “Contract Health Services Manual,” p. 15. 140 IHS, “Contract Health Services Manual,” pp. 10–11. 141 Ibid., p. 15. 

142 Ibid. 

143 Ibid. 

144 IHS, Interrogatory Response 5. 

145 IHS, “Contract Health Services Manual.” 146 IHS, Interrogatory Response 5. 
Staff Draft July 2004 62

annual spending plan.147 Every time an area office updates its Medical Priorities list, a copy is 

submitted to the headquarters, CHS branch. Using its system of medical priority levels, each area 

office determines the authorization for CHS.148 Once a request for CHS is submitted to the Area 

CHS reviewing committee, such as a CHS Resource Management Committee or Managed Care 

Committee, the strict regulations guiding the authorization of CHS are applied to determine 

whether to grant, defer, or deny the CHS referral request.149 These review committees consist of 

both clinical and administrative staff of the facility.150 

Under the regulations, no authorization for CHS and no payment will be made for 

medical care from non-IHS providers unless (1) the patient meets the IHS eligibility requirement 

for residence, (2) the health care provider first notifies the IHS ordering official of the need for 

service and provides appropriate information to determine the relative medical priority for the 

requested service, and (3) the provider receives prior authorization.151 According to IHS, the 

justification for denial of payment for CHS may include the following: an IHS facility was 

available; an alternate resource was available; the patient has lived out of his CHSDA for over 

180 days; notification was not received within 72 hours; insufficient information was provided; 

and no appeal was made within 30 days.152

Following a denial of CHS, a patient may appeal that decision under the IHS formal 

appeals mechanism. The IHS appeals process involves three levels: the service unit, the area 

director, and the director of IHS.153 Tribes that contract or compact their health services establish 

their own procedures and operate under their own appeals process.154 For tribal systems, the 

chief executive officer or the director of the facility becomes the final appeals authority of all 

CHS appeals.155 The composition of the group that adjudicates the formal appeals is determined 

at the local level.156 Generally, members are chosen based on their expertise and are often 

physicians, registered nurses, physician assistants, or health care administrators.157 While tribally 

operated systems have some flexibility in the composition and operation of their appeals 

committee, like the IHS direct systems, they are expected to operate in the same manner and in 

accordance with federal regulations.158 This appeals process, a quasi-legal process, can involve 

individual patients submitting documentation to support their appeal, or IHS staff contacting 

tribal representatives or individual Native Americans to verify information provided.159

 

147 IHS, “Contract Health Services Manual”; IHS, Interrogatory Response 5. 148 IHS, “Contract Health Services Manual.” 

149 Ibid. IHS, Interrogatory Response 5. 

150 IHS, Interrogatory Response 5. 

151 IHS, “Contract Health Services Manual,” p. 20; IHS, Interrogatory Response 3. 

152 IHS, Interrogatory Response 3. 

153 Ibid. 

154 Ibid. 

155 Walker interview; Burgess interview. 

156 IHS, Interrogatory Response 3. 

157 Ibid. 

158 Ibid. 

159 Ibid. 
Staff Draft July 2004 63

Despite the extensive formal appeals process to review denied CHS requests, a large 

portion of the requests go unfulfilled. While IHS is willing to review any denied CHS request, it 

acknowledges that, because of insufficient funds, it is forced to limit the types of services 

provided to Native Americans.160 Rationing is an unfortunate reality for IHS.161 While IHS no 

longer requires area office staff to provide information on the number of appeals and types of 

services that have been approved for payment,162 the sheer number of denied CHS cases 

indicates the impact of rationing, an impediment to access. 

As a further impediment to accessing quality health care, IHS requires that other non-IHS 

sources be exhausted for payment before contract services are sought.163 As explained above, 

IHS is the payor of last resort.164 This means that while the patient may still receive a referral, 

instead of IHS paying the bill, the referral lists the alternate health care provider as the payor, 

subject to any applicable restrictions.165 If the alternate provider requires any deductible or copayment, IHS may pay, if funding is available.166

In recent years, the denial of CHS payments has increased more than 75 percent from 

1998.167 In FY 2000, of the 680,350 requests for CHS, IHS authorized 329,236 and denied 

124,576 cases. For FY 2001, of the 663,962 requests, 318,745 cases were authorized and 

131,204 were denied. Similarly, in FY 2002, of the 638,765 requests for CHS, 324,191 were 

authorized and 134,179 cases were denied. In FY 2003, of the 571,926 requests, 318,449 cases 

were authorized and 144,392 were denied.168 Reviewing the information IHS provided, there is a 

discrepancy in the total number of CHS requests and the total number of authorized and denied 

cases. IHS did not provide an explanation for this discrepancy. The discrepancy, however, 

appears to indicate that there were a large number of de facto denied CHS requests resulting 

from IHS inaction. Accordingly, the total number of denied CHS requests would be greater, 

indicating an overall CHS denial rate that may be worse. 

The denial rate has reached the point that the existence of a “loss of life or limb” rule is 

commonly recognized.169 Ed Fox, executive director of the Northwest Portland Area Indian 

Health Board, observed that by August of each year, with several weeks remaining in the fiscal 

 

160 IHS, Interrogatory Response 5. 

161 Ibid. 

162 Ibid. 

163 Holly T. Kuschell-Haworth, Jumping Through Hoops: Traditional Healers and the Indian Health Care 

Improvement Act, 2 DEPAUL J. HEALTH CARE L. 843, 844 (1999) (hereafter cited as Kuschell-Haworth, Traditional 

Healers and the Indian Health Care Improvement Act). 

164 IHS, Interrogatory Response 3. 

165 Ibid. 

166 Ibid. 

167 ITU Budget Workgroup, “FY 2003 Needs Based Budget Presentation,” <http://www.npaihb.org/index.html> 

(last accessed Aug. 19, 2003). 

168 IHS, Interrogatory Response 2. 

169 ITU Budget Workgroup, “FY 2003 Needs Based Budget Presentation,” <http://www.npaihb.org/index.html> 

(last accessed Aug. 19, 2003). See also Jack Testimony, Briefing Transcript, p. 26. 
Staff Draft July 2004 64

year, most facilities either defer or deny gallbladder surgeries and eyeglass prescriptions, as well 

as other services of equivalent urgency.170

As an illustration of the degree to which CHS limits care, IHS officials identified one 

facility where only 14 of 45 cases needing referral for necessary services were even forwarded 

for CHS review.171 Even fewer of those reviewed actually received contracted care.172 This 

problem is not isolated to a single facility. The Cherokee Nation Health Services, for example, 

denied 4,300 CHS referrals in FY 2003. These reported denials underestimate the real number of 

necessary services that are not provided under CHS since providers cease writing referrals for 

CHS when they know that service will be denied.173 The unfortunate reality is that the severe 

underfunding of CHS programs causes IHS to ration health services. Cherokee Nation Health 

Services reports that it is unable to fund many requests for cancer treatment and diagnostic 

services. Officials there explained that this rationing of care has a direct impact on the overall 

health status of the Cherokee Nation.174 The most disturbing of their claims is that denied or 

delayed medical treatments correlate directly to increased mortality rates.175

Further, due to restricted funding, those patients awaiting more routine care experience 

lengthy delays and unnecessary complications.176 For example, Cherokee Nation states that a 

child experiencing recurring ear infections would not be referred to an ear, nose, and throat 

specialist for treatment until the child shows signs of hearing loss.177 

Dr. Craig Vanderwagen, acting chief medical officer for IHS, acknowledged how 

rationing health care is not the optimal method of treating patients: 

We don’t feel good about the number of patients who need care who are rejected 

because their problem is not life-threatening. . . . It’s rationing. We hold them off 

until they’re sick enough to meet our criteria. That’s not a good way to practice 

medicine. It’s not the way providers like to practice. And if I were an Indian tribal 

leader, I’d be frustrated.178

In summary, the rationing of health care leads to the denial or delay of treatment, and 

compels patients to accept cheaper and less effective treatment interventions or to go without 

care.179 While there is insufficient data to assess the actual impact of rationing services on 

 

170 Fox interview. 

171 Vanderwagen interview. 

172 Ibid. 

173 Cherokee Nation Health Services, “Contract Health Services” (information packet from USCCR visit to 

Cherokee Nation, Mar. 25–26, 2004). 

174 Staff meeting with the Cherokee Nation in Oklahoma, Mar. 25–26, 2004 (hereafter cited as the Cherokee Nation 

Meeting). 

175 Ibid. 

176 Joe, “The Rationing of Healthcare,” pp. 539–42. See also Vanderwagen interview. 177 Cherokee Nation Health Services, “Contract Health Services” (information packet from USCCR visit to 

Cherokee Nation, Mar. 25–26, 2004). 

178 Vanderwagen interview. 

179 Joe, “Rationing,” p. 549. 
Staff Draft July 2004 65

mortality and morbidity rates, denying or delaying treatment as a result of rationing inevitably 

worsens the overall health status of Native Americans. 

Although Contract Health Services programs provide health care otherwise unavailable 

through IHS direct or tribal providers, the limited services and rationing of care erect an 

insurmountable barrier, ensuring Native Americans will not have full access to adequate health 

care. 

Urban Indian Health Programs 

While IHS direct and tribal services provide health care on and near reservations, the 

Urban Indian Health Programs serve urban Native Americans. According to the 2000 census 

data, 61 percent of the Native American population lives in urban areas. Short of returning to the 

IHS facilities on the reservation, urban health programs are the only IHS facilities available to 

this majority of the Native American population. In actual terms, Urban Indian Health Programs 

serve only an estimated 150,000 Native Americans.180 This represents 6 percent of the total 

Native American population, though approximately 25 percent live in areas where they could 

potentially be served by these urban programs.181 Not all urban Indians live in areas where 

service is available; a staggering 46 percent of all Native Americans, or more than 1 million, 

remain with no access to IHS facilities.182 

These urban Indian programs, which began as not-for-profit clinics and survived on 

donated equipment, supplies, and volunteer services, became slightly more reliable sources of 

care with funding through the Indian Health Care Improvement Act (IHCIA).183 Title V of 

IHCIA allows for minimal federal funding to sponsor operation of Urban Indian Health 

Programs.184 The Title V program seeks to provide outpatient health services for urban 

Indians.185 IHS funds these urban services, whether direct care or referral services, through 

contracts with nonprofit organizations controlled by urban Indians.186

For FY 2004, $31.5 million was requested for the Urban Indian Health Programs, an 

increase of $245,000 from FY 2003. The $31.5 million amounts to an average of $210 per 

user.187 Despite the growing number of Native Americans residing in urban settings, IHS has 

 

180 Of these 150,000 approximately 100,000 either do not meet IHS eligibility criteria or reside outside IHS and 

tribal service areas. Another 49,000 Native Americans use urban programs in cities located in IHS direct or tribal 

service delivery areas. Ibid. 

181 Urban Indian Health Institute, “The Health Status of Urban American Indians and Alaska Natives: An Analysis 

of Select Vital Records and Census Data Sources,” Mar. 16, 2004, p. 4. 

182 Ibid. See also Northwest Portland Area Indian Health Board, FY 2004 IHS Budget Analysis and 

Recommendations (14th Annual), Mar. 19, 2003, pp. 7, 25 (hereafter cited as Northwest Portland Area Indian Health 

Board, FY 2004 IHS Budget Analysis). 183 Joe, “The Rationing of Healthcare,” p. 535. 

184 Ibid. 

185 Forquera, Urban Indian Health, p. 9. 186 Ibid. 

187 Urban Indian Health Institute, “The Health Status of Urban American Indians and Alaska Natives: An Analysis 

of Select Vital Records and Census Data Sources,” Mar. 16, 2004, p. 4. See also Chapter 4 to compare this value 

with that spent on other Native Americans and the amount spent on others receiving federally funded health care. 
Staff Draft July 2004 66

allocated only about 1 percent of its annual appropriations for urban programs since 1979.188

This 1 percent of past appropriations serves about 25 percent of the entire Native American 

population. 

Currently, approximately 34 Urban Indian Health Programs in more than 41 locations are 

partially supported by IHS.189 The balance of their funding is obtained through tribal support, 

public and private grants, and revenues from Medicaid and Medicare payments and private 

insurance reimbursements.190 The services provided vary among the 34 programs. Of the 34 

programs, 21 are comprehensive clinical programs, six are limited clinical programs, and seven 

are outreach and referral programs only.191 The types of services these urban programs provide 

depend on the availability of non-IHS funding in the region to supplement Title V 

appropriations.192 Among the 20 cities with the largest Native American populations, 10 cities 

have programs that provide medical services, six have programs that mainly offer referral 

services, and four are without any urban programs.193 Urban Indians who are on public 

assistance, unemployed, or employed in jobs without health benefits most often use these 

facilities.194 

Unlike IHS and tribal health services that are provided without charge to eligible Native 

Americans, Urban Indian Health Programs provide services on a sliding fee basis and many of 

the services are restricted to primary care.195 The opportunity to use contract health services 

when primary and specialty care is unavailable is not an option for urban Indians as it is for 

Indians using IHS direct delivery and tribal programs. As explained in the Contract Health 

Services section, contract health services are available only to those Native Americans who live 

within the Contract Health Service Delivery Areas. Tribal members who live off the reservation 

for over 180 days are not eligible to receive contract health services.196 Accordingly, urban 

Indians must pay for themselves when referred for such services as inpatient hospital care, 

specialty services, and diagnostics.197

IHS acknowledges that Native Americans in urban areas face barriers to accessing 

hospitals, health clinics, and contract health services provided by IHS and tribes.198 The agency 

attributes urban Indian access problems to poverty, lack of health insurance, and the dearth of 

 

188 Forquera, Urban Indian Health, p. 8. 

189 Indian Health Service, “Urban Indian Health Programs,” <http://www.ihs.gov/NonMedicalPrograms/Urban/ 

UIHP.asp> (last accessed Mar. 26, 2004); Forquera, Urban Indian Health, pp. 9–10. 

190 Forquera, Urban Indian Health, p. 10. 

191 IHS, Interrogatory Response 34. 

192 Forquera, Urban Indian Health, p. 12. 

193 These 10 cities that provide medical services are Albuquerque, Chicago, Denver, Oklahoma City, Minneapolis, 

Portland, San Diego, San Jose, Seattle, and Tulsa; the six cities that provide referral services are Dallas, Fresno, Los 

Angeles, New York, Phoenix, and Tucson; and the four cities without urban programs are Anchorage, Houston, 

Mesa, and San Antonio. Forquera, Urban Indian Health, p. 12. 

194 Joe, “The Rationing of Healthcare,” p. 535. 

195 Forquera, Urban Indian Health, p. 12. 

196 42 C.F.R. § 136.23(c) (2004). 

197 Forquera, Urban Indian Health, p. 12. 

198 IHS, Interrogatory Response 33. 
Staff Draft July 2004 67

culturally sensitive physicians and other health professionals.199 While as tribal members, Native 

Americans in urban areas can access tribally operated services, access to that care is further 

impeded by lack of transportation.200 

According to Norman Ration, executive director of the National Indian Youth Council, 

although Native Americans are moving to urban areas in growing numbers, “IHS does not get it 

when it comes to addressing the health care needs of urban Indians.”201 Kay Culbertson, 

executive director of the Denver Indian Health and Family Services, also testified that urban 

Indians have become invisible to federal policies; everything is geared toward tribal members 

living on the reservations.202 She added that the health care needs of Native Americans living off 

reservation are as great or even greater than the needs of Native Americans who live on their 

homelands—and their needs should be recognized.203

Documenting the health disparities of urban Indians and the pressing need for an 

adequate health care system serving urban Indians, a report released in March 2004 by the Urban 

Indian Health Institute concluded that Native Americans living in urban areas are at a greater risk 

of poor health than most Americans.204 The report found that Native Americans in the 34 urban 

areas served by IHS-funded Urban Indian Health Organizations have rates 38 percent higher for 

death due to accident, 126 percent higher for chronic liver disease and cirrhosis, and 54 percent 

higher for diabetes than general population rates.205

Accordingly, while the health disparities among Native Americans in general are great, 

the disparities are even greater for Native Americans living in urban areas. As IHS admits, it has 

the responsibility to eliminate barriers, elevate health status, and reduce the health disparities 

among Native Americans in urban areas.206 IHS states that it addresses its responsibility by 

funding, through contracts and grants, 34 urban programs, and 10 alcohol and substance abuse 

programs.207 As mentioned, however, IHS funding for its urban programs—which serve 25 

percent of the Native American population—makes up a scant 1 percent of total IHS 

appropriations. 

When asked to explain any changes made or proposals to improve health care for the 

growing urban Indian population, IHS failed to provide examples of significant programmatic 

improvements. It pointed to improvements in the urban program’s data collection system, the 

establishment of an urban Indian epidemiology center, and more focus on the involvement of 

urban programs in the agency’s consultation efforts.208 

 

199 Ibid. 

200 Ibid. 

201 Ration Testimony, Briefing Transcript, p. 78. 

202 Culbertson Testimony, Briefing Transcript, p. 268. 

203 Ibid., p. 276. 

204 Urban Indian Health Institute, The Health Status of Urban American Indians and Alaska Natives, Mar. 16, 2004, 

p. 31. 

205 Ibid., p. v. 

206 IHS, Interrogatory Response 33. 

207 Ibid. 

208 IHS, Interrogatory Response 34. 
Staff Draft July 2004 68

As will be discussed in Chapter 4, the underfunding of urban Indian programs is a crisis 

in Indian Country. Compounding the problem may be a lack of representation for urban Indians. 

Norman Ration of the National Indian Youth Council said that urban Indians were 

disproportionately unrepresented in discussions before Congress and IHS.209 Mr. Ration 

explained that, among other problems, the inability to voice urban Indian concerns has resulted 

in funding mechanisms that allow funds designated for urban Indians to be spent by tribal health 

programs.210 He clarified that as tribes compact services that were provided by hospitals, tribes 

take the funds intended for their tribal members and use the funds for services provided on 

reservation.211 According to IHS, however, the urban program is a budget line item in the IHS 

budget.212 Urban projects are funded separately from the IHS program for Native Americans on 

or near reservations.213 Mr. Ration, nonetheless, is concerned that urban Indians do not have a 

voice to express their concerns when it comes to funding distribution.214 

Clearly, urban Native Americans face greater challenges in accessing health care 

services, and the resulting reality is disproportionate health status and outcomes. As more Native 

Americans move to urban areas, health care needs will only increase. Unfortunately, funds 

appropriated for urban Indian health care are only 1 percent of total IHS appropriations. Further, 

IHS has not implemented any programmatic changes to address the growing urban population. 

Any initiatives to eliminate health disparities for Native Americans must include measures to 

address the specific health needs of Native Americans living in urban areas. 

Structural Barriers to the Use of IHS Facilities 

While the three service delivery programs within IHS have varying advantages and 

disadvantages, the overarching problem with the IHS system is limited access. This section 

explores some of the factors that limit access to IHS facilities. The manner in which IHS 

manages, operates, and administers its health system can create barriers for Native Americans 

both in terms of physical access and in terms of the quality of services received. Accordingly, 

this section reviews the IHS management, operation, and administration of its delivery system, 

and assesses the quality of care issues created by the system itself. 

Remoteness of IHS Facilities 

For the more than 538,000 Native Americans living on reservations or other trust lands 

where the climate is inhospitable, the roads are often impassable,215 and where transportation is 

 

209 Ration Testimony, Briefing Transcript, p. 78. See also a more detailed discussion including recommendations in 

Chapter 4. 

210 Ibid. 

211 Ration interview, Apr. 15, 2004. 

212 IHS, Interrogatory Response 21. 

213 Ibid. 

214 Ration interview, Apr. 15, 2004. 

215 Anchorage Daily News, “Native Americans in the Census,” Nov. 1, 2002, <http://www.adn.com/alaska/vprinter/story/2059310p-2157469c.html> (last accessed July 15, 2003); Restructuring Initiative Workgroup, 

Transitions 2002: A 5-Year Initiative to Restructure Indian Health, Final Report to the Indian Health Service, 

October 2002 (hereafter cited as Restructuring Initiative Workgroup, Transitions 2002). 
Staff Draft July 2004 69

scarce, health care facilities are far from accessible. Anslem Roanhorse, director of the Division 

of Health for the Navajo Nation, testified that on the Navajo reservation 78 percent of the public 

roads are unpaved and 60 percent of the homes lack telephone service.216 Even worse, for those 

who can get to the facilities, the equipment, medicine, and services are often not available for 

necessary treatment. Traveling to more distant facilities and delaying treatment are the only 

options. For example, in Eagle Butte, South Dakota, the Cheyenne River Sioux Tribe does not 

have an obstetrics unit in its hospital and is worried that the new proposed hospital will not have 

one. “Obstetrics services for the tribe’s approximately 210 births a year are contracted out, ‘and 

last year there were five births in the ambulance on the way to Pierre,’ 90 miles away,” 

according to tribal leaders.217 For the Kalispel Tribe in Usk, Washington, the problem extends 

beyond specialty services. They have no on-site primary care at this time and tribal members 

must travel 75 miles to receive care at the Wellpinit Service Unit IHS clinic or use an IHS 

contract facility, if available.218 Geographical access problems are not limited to remote, rural 

areas. For the 25,000 urban Indians living in Denver, Colorado, the closest IHS hospitals are in 

Albuquerque, New Mexico (450 miles away) and Rapid City, South Dakota (400 miles away).219

The geographical access problem is not a new problem facing IHS. It has long been 

recognized that geographic location and the resulting transportation problems hamper IHS efforts 

to provide health services.220 In 1976, in passing the Indian Health Care Improvement Act to 

raise the health status of Native Americans, Congress acknowledged the grave health disparities 

Native Americans were facing.221 Among other access problems, Congress explained that many 

Native American patients were “hitchhiking” or relying on costly rides from neighbors to get to 

IHS facilities.222 This situation, unfortunately, has not changed today. Many Native Americans 

continue to depend on others traveling to IHS facilities.223 Because of unpredictable travel 

arrangements, they are unable to plan ahead and make appointments at the IHS facilities; thus, 

many show up without appointments, leading to long wait times at the facilities. The problem is 

magnified as many facilities are unable to accommodate walk-in patients and limit their services 

to appointment-only services.224

At IHS facilities serving the Cherokee Nation, certain diagnostic tests are provided on 

specified dates each month. If a patient is unable to get to the facility during the times provided, 

the patient must go without the service until the test is offered again.225 The providers and 

 

216 Roanhorse Testimony, Briefing Transcript, p. 139. 

217 Peter Harriman, “Indian Health Worries Shared,” Argus Leader, Aug. 25, 2003, p. 1A. 218 American Indian Health Commission of Washington State, “2003 American Indian Health Care Delivery Plan,” 

July 2003, p. 103, <http://www.aihc-wa.org/Issues/AIHCDP.htm> (last accessed Aug. 28, 2003). 

219 The Reauthorization of the Indian Health Care Improvement Act: Hearing Before the Senate Indian Affairs 

Comm., 107th Cong. (2001) (statement of Kay Culbertson, executive director, Denver Indian Health and Family 

Services). 

220 S. Rep. No. 94-1194, at 73 (1976), reprinted in 1976 U.S.C.C.A.N. 2711. 221 Id. at 2652. 

222 Id. at 2710–11. 223 Roanhorse interview. 

224 Visit with the Cherokee Nation. According to the IHS officials at the service unit in the Cherokee Nation, its 

services are limited to patients with appointments. 

225 Ibid. 
Staff Draft July 2004 70

administrators at IHS facilities in Cherokee Nation all agreed that delayed services result in 

adverse health outcomes.226 A presumably treatable condition when left unaddressed often leads 

to more serious conditions or unnecessary complications. 

While insufficient funding can make providing transportation or locating facilities closer 

to Native Americans difficult, IHS nonetheless has the responsibility for ensuring its facilities 

and services are accessible. IHS has developed the Health System Planning software and is 

developing the proposed Small Ambulatory Health Care Facility (SAHCF) Criteria as the main 

guide for planning IHS facilities.227 In addition, the 12 IHS areas are developing Area-Wide 

Health Services and Facilities Master Plans (AHSFMPs) to better plan the location of new health 

facilities.228 IHS is optimistic that the SAHCF Criteria will provide consistent and appropriate 

health care guidance to remote Native American communities. AHSFMPs established a 

conceptual direction for new health care services. IHS did not provide details on how the 

SAHCF Criteria and AHSFMPs will ensure that IHS facilities comprehensively address the 

community health needs. 

Clearly, because tribes best understand their own community health needs, tribal 

representatives must play a crucial role in determining the location of IHS facilities and the types 

of services to be provided. IHS agrees that tribes should fully participate in the development of 

data and provide input into health care delivery program choices in their service areas.229

However, it is unclear whether tribes have meaningful or effective input into the overall IHS 

health care delivery program decisions. 

Under the Indian Self-Determination and Education Assistance Act, and the Indian 

Health Care Improvement Act, IHS is required to consult with tribes and to ensure effective and 

meaningful participation of Native Americans in the planning, conduct, and administration of 

programs and services that affect Native Americans. In 1997, IHS promulgated the first 

comprehensive Tribal Consultation and Participation Policy in the federal government.230 Under 

the policy, tribal consultations take place on three management levels: headquarters, area offices, 

and service units.231 At each level, managers are required to establish advisory committees, 

which provide advice and consultation to the IHS managers.232 IHS managers are encouraged to 

establish additional forums for tribal consultation and participation.233 The implementation of 

 

226 Ibid. 

227 IHS, Interrogatory Response 35. 

228 Ibid. 

229 IHS, Interrogatory Response 36. 

230 U.S. Department of Health and Human Services, Indian Health Service, “Consultation and Participation by 

Tribes,” <http://info.ihs.gov/TreatiesLaws/Treaties4.pdf> (last accessed Apr. 7, 2004). 

231 U.S. Department of Health and Human Services, Indian Health Service, Tribal Consultation and Participation 

Policy, Indian Health Service Circular No. 97-07. 

232 Ibid. 

233 IHS, Interrogatory Response 51; U.S. Department of Health and Human Services, Indian Health Service, Tribal 

Consultation and Participation Policy, Indian Health Service Circular No. 97-07. 
Staff Draft July 2004 71

this policy is a critical performance element for the annual performance standards of principal 

managers at IHS.234 

While the tribal consultation policy calls for effective and meaningful participation of 

tribes and individual Native Americans, the policy lacks a measure to assess the effectiveness 

and meaningfulness of the tribal consultation and participation. Tribes vary in size, resources, 

health needs, and expertise in health policies. While larger tribes with more resources hire 

representatives and experts to study the impact of IHS policy on their tribes and to best present 

their views, some of the small tribes lack the resources and expertise necessary to represent their 

issues and concerns.235 One tribal representative stated that while IHS frequently “invites” tribes 

to consultative meetings and sessions, unless travel is fully funded, many small tribes and some 

large ones cannot afford to send representatives.236 Another tribal representative expressed the 

frustration that tribal consultation is often “one-sided” and structured in a “non-Native” way, 

without respect to the Native culture.237 According to one tribal representative, the sheer number 

of tribes nationally can create logistical difficulty in tribal consultation.238 Another tribal 

representative added that while IHS is better at considering tribal views than other federal 

agencies, IHS tribal consultation does not equate to responsiveness.239 He stated that because of 

distance and revenue, small tribes have a disadvantage when it comes to consultation.240

Any consultation and participation policy aimed at increasing effective and meaningful 

participation must also include a mechanism to provide the necessary assistance. IHS policy does 

not have a mechanism to provide this type of assistance. Absent such a mechanism, it is difficult 

to conclude that tribes have meaningful and effective participation in the decision-making 

process at IHS. Thus, many tribes and their tribal members continue to face geographical 

challenges in accessing IHS facilities. 

Telemedicine. Where IHS locates its facilities ultimately affects how accessible its 

services are to Native Americans. As stated, IHS is developing new criteria and guidelines to 

determine its plans for IHS facilities and soliciting input to ensure that the placement of facilities 

and the types of services to be provided are determined based on community needs. One notable 

step IHS has taken to address the geographical barrier between remote communities and health 

care providers is telemedicine.241 IHS is applying technology to bring primary care and specialty 

medicine to remote locations.242 Telemedicine “refers to the use of electronic communication 

and information technologies to provide or support a diverse group of health-related activities 

 

234 U.S. Department of Health and Human Services, Indian Health Service, Tribal Consultation and Participation 

Policy, Indian Health Service Circular No. 97-07. 235 Bird interview. 

236 Burgess e-mail response. 

237 Rundlet e-mail response. 

238 Newcombe e-mail response. 

239 Elliot e-mail response. 

240 Ibid. 

241 U.S. Department of Health and Human Services, Indian Health Service, “Telemedicine and Telehealth Projects,” 

<http://www.ihs.gov/nonmedicalprograms/dfee/telmed/default.cfm?content=coverpage.html> (last accessed Apr. 

22, 2004). 

242 Ibid. 
Staff Draft July 2004 72

that may include health professionals’ education, community health education, public health 

research, and the administration of health services.”243 There are about 40 telemedicine programs 

and partnerships within IHS that are delivering care to smaller, more isolated communities.244 

For example, clinical engineers are equipping small remote villages in Alaska with 

telemedicine systems to transmit digital images of patients’ eardrums, skin conditions, and even 

tonsils to distant health care providers.245 Through telemedicine, small rural communities can 

communicate during emergencies with social workers via video conferencing when 

transportation is difficult or impossible.246 Telemedicine allows pre- and post-operation services 

to be provided at the local facility and eliminates trips to regional medical centers.247 The local 

on-site primary care provider can receive quick consults from regional medical centers, which 

results in a faster treatment time.248 It also provides access to continuing medical and community 

education.249 Telemedicine has the potential to eliminate some of the geographical access issues 

for Native Americans in rural communities.250

Although promising, the IHS telemedicine program is not yet widely used. According to 

a report prepared by the American Indian Information Network for IHS, which identified and 

inventoried telemedicine use within IHS and tribal clinics, there are barriers to telemedicine 

access.251 The report found that access to affordable telecommunications is the major barrier to 

implementing telemedicine projects in rural America and especially in Indian Country.252 Many 

projects, it found, had difficulty obtaining services. For example, it took the University of 

Arizona more than a year to negotiate with telecommunications companies to establish service to 

the IHS Tuba City Indian Medical Center and the Navajo National Sage Memorial Hospital.253

The report also noted a cultural barrier associated with distance education and medicine, 

where the providers themselves were unable or hesitant to incorporate technology into service 

delivery.254 While IHS/tribal clinics recognize the immediate value of telemedicine for cutting 

travel costs for training or administrative meetings, telemedicine is viewed as a luxury and 

clinics cited structural reasons why use was low.255 Two top reasons cited for infrequent use of 

 

243 U.S. Department of Health and Human Services, Indian Health Service, Department of Environmental Health & 

Engineering, “Telemedicine & Telehealth Projects Serving Indian Health Service & Tribes,” October 2000, p. 7. 244 U.S. Department of Health and Human Services, Indian Health Service, “Telemedicine and Telehealth Projects,” 

<http://www.ihs.gov/nonmedicalprograms/dfee/telmed/default.cfm?content=coverpage.html> (last accessed Apr. 

22, 2004). 

245 Ibid. 

246 Ibid. 

247 Ibid. 

248 Ibid. 

249 Ibid. 

250 Ibid. 

251 U.S. Department of Health and Human Services, Indian Health Service, Department of Environmental Health & 

Engineering, “Telemedicine & Telehealth Projects Serving Indian Health Service & Tribes,” October 2000, p. 24. 252 Ibid. 

253 Ibid. 

254 Ibid., p. 25. 

255 Ibid., p. 26. 
Staff Draft July 2004 73

telemedicine are high patient loads and employee turnover that keep staff from learning and 

maintaining skills on equipment use.256

Because of these barriers, the benefits of telemedicine have not been fully recognized. 

With the proper use of telemedicine, some of the geographical access barriers may be reduced or 

eliminated. The unfortunate reality, however, is that telemedicine is not widely used and it has 

not resolved the geographical barriers challenging access to health care for Native Americans in 

rural communities.

Aging and Outdated Facilities 

IHS also faces the challenge of dealing with aging facilities. The average age of current 

IHS facilities is 32 years, compared with nine years for private sector facilities,257 indicating that 

a massive modernization program is urgently needed.258 New and properly designed facilities are 

needed to provide efficient space in which to provide services.259 Older IHS facilities tend to be 

“inefficient and haphazard in their arrangement of space,”260 and some are beyond capacity. The 

oldest facilities may not be in compliance with Occupational Safety and Health Administration 

and Americans with Disabilities Act standards.261

Claremore Indian Hospital illustrates the problems older facilities face. Though built in 

1977 for an anticipated patient population of 36,000, as of 2001, the hospital had more than 

136,484 registered patients.262 In addition, the hospital was constructed as a 60-bed inpatient 

facility with 14 examination rooms.263 As it shifted services from inpatient care to outpatient care 

following the modern health care trend, the layout of the facility became inadequate. Lack of 

space to serve patients caused crowded waiting rooms, low productivity by providers, and 

ultimately patient dissatisfaction.264 

Because of the overwhelming financial constraints discussed in greater detail in Chapter 

4, IHS has been unable to renovate its older facilities. An IHS survey in November 2002 

estimated a backlog of $506 million in needed facilities repairs alone.265 As IHS has 

acknowledged, its aging facilities pose a serious threat to providing quality services to Native 

Americans.266 IHS’ decision not to devote resources to modernize aging facilities works as a 

 

256 Ibid., p. 24. 

257 See Indian Health Service, “Strategic Plan: Improving the Health of American Indian and Alaska Native People 

Through Collaboration and Innovation,” p. 5, and Perez Testimony, Briefing Transcript, p. 16. 

258 Restructuring Initiative Workgroup, Transitions 2002. 

259 Indian Health Service, Office of Public Health, Division of Facilities and Environmental Engineering Health 

Care Facilities Engineering, Millennium Report and Accomplishments Since 1954, January 2000, p. 32. 

260 Ibid. 

261 Roanhorse interview. 

262 Jim Cussen, chief executive officer, Claremore Indian Hospital, telephone interview, May 27, 2004. 

263 Ibid. 

264 Ibid. Indian Health Service, Office of Public Health, Division of Facilities and Environmental Engineering Health 

Care Facilities Engineering, Millennium Report and Accomplishments Since 1954, January 2000, p. 32. 

265 Results from Backlog of Essential Maintenance and Repair (Survey) as reported in Northwest Portland Area 

Indian Health Board, “FY 2004 IHS Budget Analysis,” p. 30. 

266 Ibid. 
Staff Draft July 2004 74

barrier for Native Americans in accessing quality services. Furthermore, without the 

appropriations for facility renovations, IHS hospitals at local levels sometimes rely on their own 

third-party collections to conduct badly needed reconfiguration and renovations, consuming 

funds that could go toward patient care.267 Accordingly, proper resources must be devoted to 

renovate and reconfigure some of the older IHS facilities, and it must be done without taking 

resources away from patient care. 

Extended Wait Times at IHS Facilities 

One of the problems of aging facilities, as explained above, is that an outdated layout 

leads to an insufficient use of space, which can lead to crowded waiting areas and reduced staff 

and provider productivity.268 Lower productivity and the inefficient use of space can cause long 

delays at IHS facilities. One of the most frequent complaints among Native American patients is 

the long wait times at IHS facilities. 

This existence of long wait times at IHS facilities has been widely acknowledged. In his 

Floor Statement on Indian Health Amendment to the FY 2004 Budget Resolution, Senator Tom 

Daschle identified long wait times at IHS facilities as a serious problem facing Native 

Americans.269 IHS hospital administrators also admit that poorly designed configurations and a 

lack of space cause long delays in receiving services.270 At hearings held by the Cheyenne River 

Sioux Tribal Council, many Native Americans came forward complaining that they are often 

required to wait long periods before being seen by their providers. According to one speaker, 

Native American patients typically “wait to see the doctor first. They wait to get their vitals 

taken. Then they wait to see the doctor. Then they wait to get the prescriptions.”271 The same 

speaker, a Native American woman, said she must rely on the IHS Community Health 

Representative program to transport her to the clinic, and said she would have to get to the clinic 

in the morning even though her appointment was in the afternoon. Once at the clinic, she would 

wait up to three hours after her appointment just to get medication.272 Another Native American 

explained that because the IHS facilities are “behind times,” patients have to wait to see their 

providers.273 

Whether the long wait times are self-created by patients walking into the facility without 

appointments; by insufficient use of space and the resulting low productivity of providers and 

staff; or by inefficient management and operation of the facilities, it is well established that IHS 

needs to take measures to address this problem. The Commission could not find, and the IHS did 

not provide, any information indicating that IHS had taken steps to reduce the long wait times 

that are now common at its facilities. 

 

267 Cussen interview. 

268 Ibid. 

269 Senator Tom Daschle, “Floor Statement on Indian Health Amendment to the FY 2004 Budget Resolution,” Mar. 

24, 2003, <http://daschle.senate.gov/pressroom/speeches/03/03/20030324.html> (last accessed Feb. 23, 2004). 270 Cussen interview. 

271 Barbara Iron Wing, LaPlant Hearing, Mar. 15, 2002, p. 87. 

272 Ibid. 

273 David Bald Eagle, Bridger Hearing, Apr. 11, 2002, pp. 19–20. 
Staff Draft July 2004 75

Quality of Care Issues 

In addition to physical access, access to care encompasses providing and receiving 

quality care. Undoubtedly, funding for health care affects the quality of health services and 

increases in funding would significantly and immediately improve the quality of health services. 

Nevertheless, several other factors can affect a facility’s ability to provide quality health 

services, such as maintaining qualified staff, capable of accurately diagnosing diseases, as well 

as treating patients in a culturally appropriate and acceptable manner. Chapter 2 has already 

addressed the issue of language and culturally competent health care services. This section 

discusses two other “quality” problems faced by IHS: the ability to recruit and retain qualified 

providers and the misdiagnosis or late diagnosis of diseases. 

Ability to Recruit and Retain Health Providers 

The ability to recruit and retain competent health care providers has a direct bearing on 

the quality of care at a health facility. In some cases, poor quality creates high turnover rates. Not 

surprisingly, highly trained medical personnel get frustrated at the inability to provide care at the 

level they were trained to provide. In addition, overworked staffs quickly develop burnout.274 In 

other situations, high turnover rates result in a poor quality of service. High turnover rates leave 

gaps where facilities are undermanned and disrupt continuity of care. 

Historically, IHS has experienced shortages in doctors, dentists, pharmacists, and 

nurses.275 The IHS director testified that vacancy rates range anywhere from 8 to 23 percent.276

In 2001, his staff reported that the physician vacancy rate for IHS facilities was 10 percent, and 

the average length of service for IHS physicians was 8.1 years.277 Consequently, Dr. Grim 

reported that the agency must hire almost 1,200 doctors in order to fill 900 vacant physician 

positions each year.278 IHS has had difficulty achieving this goal in some locations, which it 

primarily attributes to the remoteness of some sites.279 The vacancy rate for other health care 

professionals also causes concern. For example, in 2001, IHS experienced a vacancy rate of 22 

percent for dentists and 14 percent for optometrists.280 IHS has also recognized that it is 

experiencing a shortage of registered nurses in inpatient and ambulatory care facilities, as well as 

pharmacists.281 On a local level, conditions can be even worse. The director of the Division of 

Health for the Navajo Nation reported nursing vacancy rates exceeding 25 percent.282

 

274 Open Session before the U.S. Commission on Civil Rights, Gallup Medical Facility, Gallup, NM, Oct. 16, 2003. 

Remarks of Dr. Jana Gunnell, New Mexico Department of Public Health. 

275 Restructuring Initiative Workgroup, Transitions 2002. 276 Grim Testimony, Briefing Transcript, p. 61. 

277 Indian Health Service, “Workforce,” Issue Summary, February 2001, <http://info.ihs.gov/infrastructure/ 

infrastructure4.pdf> (last accessed Sept. 25, 2003) (hereafter cited as IHS, “Workforce”). More recent figures list 

average physician longevity at nine years. These numbers compare with an average of two to two and a half years in 

the 1970s. See also Olson Testimony, Briefing Transcript, p. 126. 

278 Charles Grim, director, Indian Health Service, interview in Rockville, MD, July 21, 2003. 

279 IHS, “Workforce.” 

280 Ibid. 

281 Ibid. 

282 Roanhorse Testimony, Briefing Transcript, p. 143. 
Staff Draft July 2004 76

Often, it is difficult to recruit and retain health care providers willing to live and work in 

remote locations.283 The problem is especially acute in remote tribal communities, which lack the 

usual conveniences with which health care professionals are familiar.284 Some of the specific 

obstacles to recruiting and retaining health professionals include lack of parity in pay,285

insufficient or inadequate housing, lack of jobs for spouses, lack of community activities for 

youth, lack of health care for staff and families, insufficient opportunities for continuing 

education, and substandard educational systems.286 These factors have each contributed to the 

historical difficulty IHS has experienced in staffing rural health facilities.287 

Inevitably, a shortage of providers affects the quality of care. Gregg Bourland and Harold 

Frazier, former chairman and vice chairman, respectively, of the Cheyenne River Sioux Tribe in 

South Dakota, described the following situation at an IHS facility: 

In January and February 2002, the Eagle Butte Service Unit [in South Dakota] on 

the Cheyenne River Sioux reservation has been swamped with children with 

Influenza A, RSV [Respiratory Syntactical Virus], and one fatal case of 

meningitis. There are only three doctors on duty, one Physician Assistant, and one 

Nurse Practitioner. The only pediatrician is the Clinical Director who will not see 

any patients, even though there is a serious need for the services of a pediatrician. 

Several of these children have presented with breathing problems, high fever, and 

severe vomiting. The average waiting time at the clinic has been four and six 

hours. The average time at the emergency room is similar. Most babies have been 

sent home without any testing to determine what they have and with nothing but 

cough syrup and Tylenol. In at least three cases, the baby was sent home after 

these long waits two or more times with cough syrup, only to be life-flighted soon 

thereafter because the child could not breathe. The children were all diagnosed by 

the non-IHS hospital with RSV. . . . No babies have died yet, but the Tribe sees no 

justification for waiting until this happens when these viruses are completely 

diagnosable and treatable.288 

 

283 Bird interview. 

284 U.S. Department of Health and Human Services, Indian Health Service, “IHS Awards $1.7 Million in Grants for 

Health Care Professionals in Indian Health Programs,” Oct. 1, 2002, news release, <http://www.ihs.gov/ 

PublicInfo/PublicAffairs/PressReleases/Press_Release_2002/Release_20_Recruitment_Grants_2002.asp> (last 

accessed Apr. 6, 2004) (hereafter cited as IHS, “$1.7 Million in Grants”). 

285 See Taylor McKenzie, telephone interview, September 11, 2003; see LeRoy Jackson, USCCR Staff Director 

meeting with the Tribal Self-Governance Advisory Committee, Sept. 16, 2003. According to Richard Champany, 

clinical director at the Northern Navajo Medical Center in Shiprock, New Mexico, it is difficult for IHS to recruit 

providers in specialty and subspecialty fields such as emergency care, general surgery, orthopedics and 

anesthesiology because it is unable to pay competitive salary. Richard Champany, telephone interview, June 29, 

2004. 

286 U.S. Department of Health and Human Services, Indian Health Service, Fiscal Year 2005 Budget Justification, 

Indian Health Professions, p. IHS-116; IHS, “$1.7 Million in Grants.” 

287 IHS, “$1.7 Million in Grants.” 

288 149 CONG. REC. S4109–47 (daily ed. Mar. 20, 2003) (statement of Sen. Daschle). As part of his statement, 

Senator Daschle referred to a letter from the Cheyenne River Sioux Tribe to IHS describing the situation at the Eagle 

Butte Service Unit. Senator Daschle also noted the following quality of care issues at the Eagle Butte Service Unit: 

The facility does not have an obstetrician. It is funded at 44 percent of the need calculated by the IHS. Although 
Staff Draft July 2004 77

Improvements in recruiting, training, and compensation are necessary to reduce the 

shortage of health professionals at IHS facilities. To reduce staff shortages, IHS has been 

implementing a system of special pay, bonuses, and allowances.289 IHS also has scholarship and 

loan repayment programs.290 Both of these programs provide benefits to health professionals in 

exchange for serving in the IHS.291 Through the IHS Indian Health Professions programs, IHS 

has been recruiting and retaining Native American health professionals to serve in the IHS.292

These recruitment and retention activities are essential to staffing and managing IHS’ health care 

delivery system.293

Under the authorization of the IHCIA, IHS has the IHS Health Professions Scholarship 

Program.294 This program includes Section 103 Health Professions Preparatory Scholarship 

Programs for Indians, which authorizes two scholarship programs for Native American students 

in pre-professional education and pre-medicine or pre-dentistry education, and Section 104 

Indian Health Professions Scholarship, which authorizes scholarships to Native American 

students in health professional schools.295 In addition, authorized by Section 108 of the IHCIA 

and funded through appropriations, IHS offers loan prepayment programs.296

Through scholarships and loan repayment programs, from 1981 to 2003, the total number 

of IHS professional staff members grew 51 percent and the number of Native American federally 

employed health professionals increased 230 percent.297 The proportion of the Native American 

professional staff has increased 125 percent over the same period.298 In 1981, 84 percent of the 

IHS health professional staff was non-Indian and by 2003, 64 percent of the staff was non-Indian 

and 36 percent Indian.299

In addition, acknowledging that a monetary incentive is sometimes necessary to retain 

health professionals in remote IHS facilities, HHS announced $1.7 million in new grants to tribal 

communities to assist in recruitment and retention programs. The objective of these grants is to 

recruit, place, and retain health professionals in areas with high vacancy and staff turnover 

rates.300

 Eagle Rock has a birthing room and 22 obstetrical beds, only two to three doctors are available to staff the clinic, 

hospital, and emergency room. Id.

289 U.S. Department of Health and Human Services, Indian Health Service, Fiscal Year 2005 Budget Justification, 

Indian Health Professions, p. IHS-115. 

290 Ibid. 

291 Ibid., p. IHS-116. 

292 Ibid. 

293 Ibid. 

294 IHS, Interrogatory Response 45. 

295 Ibid. 

296 Ibid. 

297 U.S. Department of Health and Human Services, Indian Health Service, Fiscal Year 2005 Budget Justification, 

Indian Health Professions, p. IHS-119. 

298 IHS, “Workforce.” 

299 IHS, Interrogatory Response 45; U.S. Department of Health and Human Services, Indian Health Service, Fiscal 

Year 2005 Budget Justification, Indian Health Professions, p. IHS-119. 300 IHS, “$1.7 Million in Grants.” 
Staff Draft July 2004 78

Despite signs of improvement through scholarships and loan programs and an increased 

awarding of grants, the need for qualified medical and nursing staff remains at a number of IHS 

facilities, particularly those in remote locations. While IHS data indicate an increase in 

professional staff in general, and Native Americans in particular, during the same period, IHS 

has continued to face increasing vacancy and turnover rates. Current vacancy rates are 25 percent 

for dental, 15 percent for nursing, 10 percent for medicine, and 9 percent for pharmacy.301

According to data provided by IHS, in 2004, the total numbers of physicians, nurses, and dentists 

has decreased since 1993.302 Furthermore, national trends indicate that the shortage of health 

professionals is increasing and without effective measures to recruit and retain health 

professionals, IHS will not be able to compete for an ever-decreasing number of available 

professionals.303 

A review of IHS budget justifications from 1999 to 2004 illustrates that IHS has not 

made significant changes to existing recruitment and retention programs in at least the last five 

years. Total appropriation for Title I of the IHCIA, Indian Health Manpower, for FY 1999 was 

$29,623,000; $30,491,000 for FY 2000; $30,486,000 for FY 2001; $30,565,000 for FY 2002; 

$31,114,000 for FY 2003; $30,774,000 for FY 2004; and an estimated $30,803,000 for FY 2005. 

In light of the insignificant changes in appropriations and the continued high vacancy and 

turnover rates at IHS, the existing recruitment and retention programs are not meeting the 

objective of reducing vacancy and turnover rates. 

Misdiagnosis or Late Diagnosis of Diseases 

One of the major problems created by the high turnover rate of providers is that patients 

do not receive consistent care. For patients who must seek regular treatment due to chronic 

health conditions, it is imperative that providers are aware of their medical history and the types 

of medication taken. Inconsistency among providers causes undue burden for the patient who 

must provide his or her medical history to each provider. In addition, inconsistency makes it 

difficult for the provider to diagnose the illness and make appropriate treatment decisions. 

Among the resulting problems are misdiagnosis and the assignment of incorrect treatment 

regimens. Furthermore, without an accurate medical history, providers may prescribe 

medications that interact negatively with previously prescribed medications or that produce 

allergic reactions. Therefore, continuity of care is an important indicator of quality care. 

According to a 2002 study supported by HHS’ Agency for Healthcare Research and 

Quality, continuity of care for Type 2 diabetes patients resulted in improved self-management of 

diet and glucose control.304 Furthermore, explaining the benefits of continuity of care, the acting 

director of the Agency for Healthcare Research and Quality, Carolyn M. Clancy, M.D., has 

 

301 U.S. Department of Health and Human Services, Indian Health Service, Fiscal Year 2005 Budget Justification, 

Indian Health Professions, p. IHS-116. 302 IHS, Interrogatory Response 46. The numbers for pharmacists and optometrists increased during the same period. 

Ibid. 

303 Indian Health Care Improvement Act: Hearing on S. 212 before the Senate Indian Affairs Committee, 107th 

Cong. (2001) (testimony of Michael Bird, American Public Health Association). 

304 Michael L. Parchman, M.D., Dr. Pugh, Polly Hitchcock Noel, Ph.D., and Anne C. Larme, Ph.D., “Continuity of 

Care, Self-Management Behaviors, and Glucose Control in Patients with Type 2 Diabetes,” Medical Care, vol. 40, 

no. 2, 2002, pp. 137–44. 
Staff Draft July 2004 79

stated that continuity of care means that the provider knows the patient’s past medical and 

personal history and other circumstances of the patient’s daily life that affect one’s health.305

Accordingly, by developing a continuing relationship with the patient, the provider has the 

knowledge of the patient’s entire history and the provider is better able to treat the patient.306

Furthermore, continuity of care is also associated with greater efficiency in terms of increased 

satisfaction by patients and shorter hospital stays.307

Many Native American patients, due to high turnover rates, do not receive consistent care 

from one provider. According to a retired Lakota nurse, even with the knowledge she had as a 

nurse to ask for proper medication and treatment, since suffering a heart attack, she has faced 

problems getting appropriate treatment. She explained that being seen by many different 

providers caused these problems.308 Another story comes from a woman given a hysterectomy 

because of fibroid adhesive disease. She explained that despite the fact that her condition was 

written in her medical chart, she had to explain her condition to each doctor she saw. In one 

extreme situation, even though she explained to a new doctor that she had had a hysterectomy for 

her fibroid adhesive disease, the doctor did not believe her and forced her to undergo more 

testing despite the pain.309 

Yet another story comes from Valerie Dupris Curley, who explains that many doctors at 

her IHS facility are temporary providers. Consequently, during each visit for her husband who 

has a chronic medical condition, they have to repeat his medical history for the providers.310 At 

the Eagle Butte hearing, one of five health hearings held by the Cheyenne River Sioux Tribal 

Council to gather testimony on the delivery of IHS services to be submitted to the Senate Indian 

Affairs Committee,311one woman explained that for two years she was seen by different 

providers and misdiagnosed repeatedly. She was finally diagnosed with cancer. She expressed 

that “there should be doctors at IHS facilities that can stay and help the people.”312

At the hearings held by the Cheyenne River Sioux Tribal Council, the most common 

complaint was misdiagnosis of illnesses by IHS providers. Another frequent concern was the late 

diagnosis of cancer. While early detection of cancer can increase the patient’s chance of survival, 

the examples will illustrate the problem of late diagnosis at IHS facilities. For example, Lyle 

Jack testified at the Commission briefing about a cancer patient who for two years sought 

medical assistance for back pain. Each time the patient went to an IHS facility, he was sent home 

with pain medication without proper diagnosis. It was determined after two years of pain 

medication that the patient had cancer; he died three weeks after being diagnosed.313 Another 

 

305 “Continuity of Care: How Important Is It to Your Health?” Medical Reporter, <http://medicalreporter.health.org/ 

tmr0896/clancycare.html> (last accessed Apr. 6, 2004). 

306 Ibid. 

307 Ibid. 

308 Lois Spotted Bear, Cheyenne River Sioux Tribe Health Hearings, Eagle Butte Hearing, Mar. 12, 2002, p. 27 

(hereafter cited as Eagle Butte Hearing). 

309 Joye Lebeau, Eagle Butte Hearing, pp. 22–23. 

310 Valeri Dupris Curley, Eagle Butte Hearing, p. 32. 

311 Rebecca Kidder, Eagle Butte Hearing, p. 5. 

312 Donna Talks, Eagle Butte Hearing, pp. 30–31. 

313 Jack Testimony, Briefing Transcript, p. 56. 
Staff Draft July 2004 80

example of late diagnosis comes from a Native American woman from the Rosebud Reservation. 

Despite persistent stomach pain, she was diagnosed with heartburn. She later learned that she 

was suffering from fatal stomach cancer.314

Unfortunately, in Indian Country, the story of misdiagnosis is all too common. IHS has 

acknowledged that cancer is diagnosed late in the Indian Country.315 In a telling statement, Lyle 

Jack stated that the reason why cancer is not diagnosed, or diagnosed late, is that IHS does not 

have providers trained to detect cancer.316 Because of the lack of cancer specialists, many 

treatable cancers go undiagnosed or diagnosed too late.317 

Dr. Grim cited a lack of resources and the remoteness of the facilities as reasons for 

misdiagnosis or late diagnosis of cancer.318 Dr. Olson of IHS testified that one of the reasons for 

late diagnosis is the providers’ failure to screen for preventable diseases early.319 While 

additional resources would remedy some of the problems related to misdiagnosis, failure to 

screen early for preventable diseases is more than just a resource problem. Given the lack of 

funding or resources, IHS must improve training for current providers or recruit more qualified 

providers to ensure that providers take early screening measures and follow-up with patients. Dr. 

Grim placed the onus on the shoulders of Native Americans, urging them to “go back, and that’s 

not always easy. They need to continue to ask questions of their provider until they have them 

adequately answered.”320 Before asking the patients to follow-up with providers, providers must be 

better trained to notice early signs of more serious conditions and to take appropriate preventive 

measures, whether screening for diseases or increasing the monitoring of patients’ conditions. 

The causes of misdiagnosis or late diagnosis are twofold. First, as explained, lack of 

continuity of care by primary providers leads to misdiagnosis or late diagnosis. The Eagle Butte 

cancer patient identified earlier in this section, attempted to explain her medical conditions for two 

years to each new provider she saw, yet never received proper screening, resulting in late diagnosis 

of cancer.321 Second, the lack of competent providers leads to misdiagnosis or late diagnosis. 

Providers sometimes may not have the proper training to look for early warning signs of more 

serious conditions. High turnover rates contribute to this lack of proper training. 

According to IHS, based on the results of a study conducted in 1999–2001, which found 

frequent delays in treatment from the time of diagnosis, and other surveys and focus groups, IHS 

has made efforts to place Native American providers and staff into early detection programs and to 

encourage clinicians to get their patients to treatment more rapidly.322 Furthermore, IHS’ Cancer 

program has training activities aimed at early detection and early treatment, including a cancer 

survivors support group training, Native Researcher’s Cancer Control Training, close partnership 

 

314 Tom Daschle, “Adequate Indian Health Funding Not Unrealistic,” Argus Leader, May 7, 2004. 

315 Olson testimony, Briefing Transcript, p. 158. 

316 Jack, testimony, Briefing Transcript, p. 56. 

317 Ibid. 

318 Grim testimony, Briefing Transcript, p. 109. 

319 Olson testimony, Briefing Transcript, p. 158. 

320 Grim testimony, Briefing Transcript, p. 108. 

321 Donna Talks, Eagle Butte Hearing, pp. 30–31. 

322 IHS, Interrogatory Response, 25. 
Staff Draft July 2004 81

with the CDC National Breast and Cervical Cancer Early Detection Program, colposcopy training 

for IHS primary care physicians, and cancer awareness training for Community Health 

Representatives.323 Unfortunately, IHS did not explain how these training programs contribute to 

the early detection and early treatment of cancer. At this stage, IHS does not have detailed 

information about cancer incidence rates.324 IHS has begun over the past year to engage many of the 

state members of the CDC-funded National Program of Cancer Registries in a data match to 

improve the ascertainment of race in those registries.325 It hopes to use the resulting data to analyze 

issues such as stage at diagnosis and survival rates.326 As the information provided by IHS indicates, 

IHS does not have detailed cancer-related information to help it set its cancer prevention and early 

detection programs or policies. 

Furthermore, despite some cancer training activities, both Dr. Grim and Dr. Olson of IHS 

stated at the Commission briefing that IHS lacks the resources necessary to provide appropriate 

screening equipment and adequate training.327 Based on the information provided by IHS and other 

sources indicating high incidence of late diagnosis of cancer, it does not appear that IHS has taken 

appropriate measures to detect and screen for serious illnesses early enough to prevent treatable 

conditions from becoming untreatable. This failure to properly diagnose and treat existing 

conditions is an indication of a lack of quality care having a detrimental effect on the overall health 

outcomes of Native Americans. 

Conclusion 

Native Americans face barriers to gaining access to health care. As Chapter 2 explained, 

there are social and cultural barriers such as discrimination, bias, and a lack of culturally 

competent care. In addition, the system itself creates barriers. As this chapter has explored, 

structural barriers limit access to care. Providing additional funding will certainly address some 

of the resource issues. However, structural problems involving IHS management, operation, and 

administration of its health care system go beyond funding appropriation and allocation. IHS 

operational decisions on where to place facilities and what types of services to provide affect 

access. Lack of meaningful tribal participation and input on operational decisions concerning the 

location of the facilities and the types of services to be provided negatively affects Native 

American patients. Native Americans, limited by impassable road conditions and lack of 

transportation, face real physical access barriers in reaching IHS facilities that are too far away 

from their homes. Furthermore, the types of services they need are not always provided at the 

IHS facility they use and therefore, Native Americans are forced to seek contracted services or 

travel long distances to access services. 

In addition, even when Native Americans are able to get to IHS facilities, they face 

barriers caused by aging facilities and long wait times. On average, IHS facilities are much older 

than non-IHS facilities and often, these aging facilities are accompanied by the haphazard or 

insufficient use of space. Long wait times at the IHS facilities make it even more difficult for 

 

323 Ibid. 

324 Ibid. 

325 Ibid. 

326 Ibid. 

327 Grim testimony, Briefing Transcript, p. 109; Olson testimony, Briefing Transcript, p. 158. 
Staff Draft July 2004 82

patients to gain access to care. While walk-in patients may crowd waiting rooms and cause 

delays for providers, IHS’ management and operation decisions must take into consideration 

that, due to transportation issues, some Native Americans are forced to seek walk-in services and 

therefore, IHS must take measures to address long wait times. 

Limitations on access are intensified by the lack of qualified providers at IHS facilities. 

IHS experiences high turnover rates of providers. High turnover rates of providers mean that 

Native Americans are without reliable providers. Lack of consistent services by reliable 

providers affects the quality of services Native Americans receive. Insufficient recruiting and 

retention efforts by IHS contribute to high turnover and vacancy rates. As a result, IHS cannot 

ensure that adequate services are provided to Native Americans. 

Even more troubling is the misdiagnosis and late diagnosis of diseases such as cancer. As 

IHS admits, IHS providers do not always screen for preventable diseases early enough to provide 

timely treatment. Cancer death rates among Native Americans are unnecessarily high as a direct 

result of IHS providers failing to take early preventive measures to detect and treat cancer. These 

barriers, whether a result of physical access or quality issues, lead to the presence of 

disproportionate health disparities among Native Americans. Accordingly, the Commission 

makes the following recommendations: 

• IHS should re-evaluate its current Contract Health Services (CHS) eligibility requirement 

and adopt an eligibility requirement that allows all qualified Native Americans from 

federally recognized tribes to receive CHS regardless of their place of residence. 

• IHS should provide technical training and assistance to Native American tribes lacking 

the resources and capacity to meaningfully and effectively participate in consultations 

with IHS. 

• IHS should routinely assess and evaluate its tribal consultation and participation 

processes. In addition, the effective use of tribal consultation should be made a critical 

element in the annual performance evaluation of IHS managers to ensure that IHS 

managers are providing tribes meaningful and effective participation in all decisionmaking processes that affect Native American health care. 

• IHS should standardize and coordinate its data collection efforts with tribes participating 

in self-governance contracts or compacts to ensure that comprehensive Native American 

health data are collected. The collection procedures and criteria adopted by IHS should be 

established in consultation with tribes. Standardized and coordinated data collection will 

make for more informed Indian health policies and initiatives. 

• IHS should accelerate efforts to make telemedicine widely available and easily accessible 

for communities in remote areas. The IHS telemedicine programs should be carefully 

tailored to overcome the challenges related to the lack of affordable telecommunications 

in some areas, reluctance on the part of service providers to utilize telemedicine 

technology, and concerns about providing culturally sensitive health services. 

• IHS should redesign operating policies to reflect the reality that many Native Americans 

have limited access to reliable transportation and, as a result, have limited access to IHS 
Staff Draft July 2004 83

health facilities. To address this problem, IHS should use more “walk-in” services, 

allowing walk-in appointments as part of its regular health delivery system. 

• IHS should implement initiatives to reduce wait times at its facilities. These initiatives 

should include redesigning or reconfiguring waiting areas and examining rooms to reduce 

overcrowding and increase productivity and efficiency; hiring more staff to reduce 

workload; training staff on time management; and increasing productivity and efficiency. 

• IHS should revise its recruiting and retention programs and take proactive measures to 

recruit and retain qualified providers. The revised IHS recruitment and retention 

programs should include tailoring the programs to meet the specific recruiting and 

retention needs of various IHS Service Areas by providing competitive pay to providers 

in areas where parity in pay is an issue; providing adequate housing or supplementing 

housing costs to address lack of adequate housing; and providing special incentives for 

providers in rural areas to compensate and address the lack of lifestyle choices in rural 

areas. 

• IHS facilities should be properly equipped with screening and diagnostic equipment to 

provide early detection of disease. Early detection will reduce mortality rates, as well as 

medical costs over the long term. In addition to screening and diagnostic equipment, 

adequate training for providers must be provided. 
Staff Draft July 2004 84

Chapter 4: Financial Barriers That Limit Native Americans’ Access to Health Care 

and Contribute to Health Disparities

The testimony, research, and interviews conducted in support of this report show that 

inadequate federal funding is an important obstacle to adequate health care and eliminating 

disparities in health status for Native Americans. This report is not the first time the Commission 

has identified this obstacle. In the A Quiet Crisis, the Commission concluded that “the anorexic 

budget of the IHS can only lead one to deduce that less value is placed on Indian health than that 

of other populations.”1 Speaking for the administration, the Assistant Secretary of Minority 

Health for the Department of Health and Human Services explained that “barriers to adequate 

health care include underfunding or complete lack of funding.”2 In arguing for increases in 

funding, Senator Tom Daschle related a story that gives life to the statement that the level of 

underfunding is disastrous. 

Several years ago, a stillborn baby was delivered in Eagle Butte. A simple 

ultrasound would have prevented the death of this full-term, healthy baby: the 

umbilical cord was wrapped around his neck. No ultrasound was performed, even 

though the baby’s heart rate was dangerously low, because the IHS, due to budget 

constraints, allows only one ultrasound per pregnancy, and the baby’s mother 

already had hers.3

The need for additional funding is particularly well supported by advocates for 

Native American health care, who have developed a variety of measurements to verify 

the inadequacy of present funding levels. Over the years, they have made the following 

arguments to the President and Congress when requesting additional funding, which are 

discussed later in this chapter: 

• Annual per capita health expenditures for Native Americans are only 60 percent of the 

amount spent on other Americans under a mainstream health plan. 

• Annual per capita expenditures fall below the level for every other federal medical 

program and standard. 

• Annual increases in IHS funding have failed to account for medical inflation rates and 

increases in population. 

• Annual increases in IHS funding are less than those for other HHS components. 

• Annual increases have effectively been reduced to reflect increased collection efforts 

despite express congressional intent that appropriations not be reduced. 

 

1

 U.S. Commission on Civil Rights, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, July 

2003, p. 49. 

2

 Dr. Charles W. Grim, Indian Health Service, “Eliminating Disparities Is More Than an Access Issue” (speech 

delivered at the 32nd annual Meeting of the Association of American Indian Physicians, Santa Fe, NM, Aug. 4, 

2003), <http://www.ihs.gov/PublicInfo/PublicAffairs/Director/2003_Statements/FINAL-AAIP_August_2003.pdf> 

(last accessed Feb. 9, 2004). 

3

 Tom Daschle, “Adequate Indian Health Funding Not Unrealistic,” Argus Leader, May 7, 2004, p. 9B. 
Staff Draft July 2004 85

Examined individually, these measurements express in clear terms that funding levels are 

inadequate. When examined together, the conclusion is unmistakable that current funding levels 

are far below that necessary to maintain basic health services and that the federal government has 

failed to satisfy explicit trust obligations. The first section of this chapter addresses affordability 

as measured by government spending, including a detailed examination of several methods for 

measuring the adequacy of funding levels.4 This discussion will be followed by an analysis of 

specific identifiable funding needs for contract health services, contract support costs, and the 

Urban Indian Health Program, as well as an evaluation of certain administrative issues 

surrounding the financing of Native American health care. These administrative issues include 

the frequently misunderstood term “entitlement,” rules for the distribution of funds among tribes 

and regions, and rules for the administration of designated appropriations. The second section of 

this chapter isolates the insurance component of health care financing. Specifically, it examines 

the various barriers that produce startling numbers of uninsured Native Americans and how those 

barriers have a detrimental influence on the affordability of and the access to health care. The 

chapter closes with the identification of findings and with specific recommendations to address 

those findings. Before examining the adequacy of funding, we first provide the context with a 

background section on funding. 

Funding Background 

As the primary health care provider for Native Americans, IHS receives the vast majority 

of funds appropriated for that purpose. For FY 2005, the President’s budget request included 

$2.97 billion for IHS, just 4.4 percent of a $66.8 billion HHS discretionary budget and an even 

smaller 0.5 percent of the overall HHS budget of $580 billion.5

 While other HHS components 

and programs provide limited health-related services for Native Americans, their Native 

American expenditures are equal to approximately 0.5 percent of IHS spending on Native 

Americans, less than $20 million.6

 

The FY 2005 budget request includes a $45 million increase, an increase of 1.6 percent 

over FY 2004 enacted levels.7 To some extent, at least in the allocation of additional funds, the 

increase reflects priorities established through tribal consultation, including increases to cover 

pay raises and inflation, thereby protecting the current level of services, and greater funding for 

preventive services.8

Another HHS agency, the Centers for Medicare & Medicaid Services (CMS), directly 

funds health care services for Native Americans who are enrolled in the Medicaid, Medicare, or 

State Children’s Health Program when their care is provided through IHS or tribal facilities. The 

 

4

 These individual methods parallel the arguments identified above for establishing the inadequacy of funding levels. 

5

 U.S. Department of Health and Human Services, Fiscal Year 2005 Indian Health Service Justification of Estimates 

for Appropriations Committees, p. IHS-12 (hereafter cited as HHS, FY 2005 Indian Health Service Justification of 

Estimates for Appropriations Committees). See also Northwest Portland Area Indian Health Board, Priority One: 

The FY 2005 Indian Health Service Budget: Analysis and Recommendations, Mar. 8, 2004, pp. 42–43. 

6 See U.S. Commission on Civil Rights, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, July 

2003, Tables 2 and 3 of Chapter 3 (citing the Budget of the United States Government, Fiscal Year 2004, Historical 

Tables, Table 5.4, pp. 103–04). 

7

 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-12. 8

 Ibid. 
Staff Draft July 2004 86

President’s FY 2005 budget request estimates Medicaid and Medicare expenditures of $544 

million,9

 or a very small 0.1 percent of the combined annual Medicaid and Medicare budget of 

$473 billion.10 CMS funds spent on Native Americans are seen as IHS collections or 

reimbursements, rather than budgeted appropriations. When IHS budget appropriations are 

combined with collections from CMS and private, third-party insurers, the total composes the 

program-level funding for IHS and provides a better picture of the overall federal government 

spending on Native American health care. For FY 2005, the President’s budget estimates 

reimbursement in excess of $598 million, for a total IHS program-level funding of almost $3.7 

billion.11

Even with program-level funding boosted by third-party collections the end result is a 

rationed system. IHS acknowledges this reality in its budget justification, explaining that its 

system “explicitly rations care, deferring and denying payment for medical services that are 

thought to be of lower priority.”12 To what degree rationing is a problem will be discussed in 

detail in the Contract Health Services section. First, it is necessary to address the myth 

surrounding the gaming industry in Indian Country and its contribution to the continued 

shortfalls in federal funding and the resulting system of rationed care. 

Because the Native American gaming industry has grown to encompass 220 tribes, 377 

facilities and more than $16 billion per year in revenue a perception exists that Indians have been 

given everything they need and that federal “handouts” are no longer necessary.13 This 

perception is inaccurate on several levels. First, it ignores the federal trust obligation discussed 

earlier in the report. Second, it overstates the magnitude and impact of gaming profits. A report 

prepared for the American Indian Program Council provides a clearer picture of the impact of 

casinos in Indian Country: 

• Only half of all tribes have casinos. 

• 39 casinos produced the majority of casino-generated income. More specifically, 39 

percent of casinos accounted for 66 percent of revenue. 

• Casinos in five states, with more than half the total Native American population, 

accounted for less than 3 percent of all casino revenue. 

• Casinos in three states, with only 3 percent of the Native American population, accounted 

for more than 44 percent of all casino revenue. 

• Dozens of casinos barely break even because of inadequate size or location.14 

 

9

 Ibid. 

10 Indian Health Service, “President’s Fiscal Year 2004 Budget Request.” See also Northwest Portland Area Indian 

Health Board, Priority One: The FY 2005 Indian Health Service Budget: Analysis and Recommendations, Mar. 8, 

2004, p. 43. 

11 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-2. 12 Ibid., p. IHS-27. 

13 James Brosnan, “Indian Gaming Surges, States Seeking Larger Cut,” Scripps Howard News Service, Apr. 3, 2004. 

14 Richard Anzures, “Time Special Report: Portrays Misconception of Indian Gaming and Tribal Sovereignty,” 

<http://www.aipc.osmre.gov/GamingReport.htm> (last accessed May 27, 2004). 
Staff Draft July 2004 87

 The overall effect is that only a relatively small number of tribes have been very 

successful—successful enough to establish health care systems independent of federal aid. For 

most tribes, gaming has brought increased administrative, legal, and lobbying expenses along 

with impressive gains for non-Indian investors and state governments who have taken as much as 

16 percent of revenue.15 After other expenses are covered, some percentage of the successful 

tribes has appropriately applied some portion of their increased revenue to health care. 

Nevertheless, the vast majority of tribes, and Native Americans, must continue to rely on the 

inadequate funds appropriated to the IHS. 

Measurements of Funding Adequacy 

The adequacy of funding for Native American health care was central to recent hearings 

before the Senate Committee on Indian Affairs. On February 26, 2003, and March 5, 2003, the 

committee conducted hearings on the President’s FY 2004 budget request for Indian programs. 

The hearings addressed a wide array of Native American programs, including the Indian Health 

Service. The four panelists represented the National Congress of American Indians, the National 

Indian Health Board, the urban Indian community, and the Indian Health Service. Over the 

course of the two hearings, the panelists developed two competing images for the committee. 

The first image, from Dr. Charles W. Grim, director of the Indian Health Service, described an 

increasing budget, demonstrative of government commitment to high-quality health care for 

Native Americans.16 It is important to note that Dr. Grim frequently hedges his optimism with 

the phrase “within the scope of national priorities.”17 The second image, from the three 

advocates, described a marginal budget increase, woefully inadequate for bridging the divide 

between the current funding level and that necessary for Native Americans to receive the same 

medical care as average Americans.18 The five methods characterized below will help explain 

how the same system could be described using two vastly differing images. 

 Level of Unmet Need Calculation 

The first of these methods is the level of unmet need calculation. It is important to note 

that the level of unmet need calculation is a government mechanism, created independent of the 

motivation to advocate for additional funding. Significantly, it draws conclusions similar to those 

drawn by the most forceful advocates for Native American health care. Specifically, the IHS was 

funded at 52 percent of the level appropriate for the average American in 2003, leaving an unmet 

need of more than $3 billion.19 This methodology will be explained in detail; first to establish a 

 

15 Ibid. See also James Brosnan, “Indian Gaming Surges, States Seeking Larger Cut,” Scripps Howard News 

Service, Apr. 3, 2004. 

16 See generally The President’s FY 2004 Budget for Indian Programs: Hearing Before the Senate Comm. on Indian 

Affairs, 108th Cong. (2003) (statement of Dr. Charles W. Grim, director, Indian Health Service). 17 Dr. Charles W. Grim, “An Indian Health Update” (remarks at the Midwest Alliance of Sovereign Tribes Impact 

Week Meeting, Mar. 22, 2004). 

18 See generally The President’s FY 2004 Budget for Indian Programs: Hearing Before the Senate Comm. on Indian 

Affairs, 108th Cong. (2003) (statements of Tex Hall, president, National Congress of American Indians; Julia DavisWheeler, chair, National Indian Health Board; and Kay Culbertson, executive director, Denver Indian Health and 

Family Services). 

19 U.S. Department of Health and Human Services, Indian Health Service, “FY 2003 IHCIF—Area Summary,” 

<http://www.ihs.gov/NonMedicalPrograms/lnf/2003/AreaAllowanceSummary.pdf> (last accessed July 7, 2003). 
Staff Draft July 2004 88

degree of credibility, and second to provide some sense of margin of error. No system is without 

its critics; the level of unmet need calculation is no exception. A summary of criticisms presented 

by the Alaska Native Health Board is included as an additional check on the credibility of using 

the unmet need calculation to evaluate the annual IHS budget. 

Several times throughout the congressional hearings referenced above, mention was 

made of the unmet need calculation. It is this mechanism and its use of a disparity index that led 

to the conclusions made by those testifying that the IHS budget falls short of the $18 billion 

necessary to extend IHS service to all Native Americans.20 The explanation below will evaluate 

that assertion and the FY 2005 budget request. 

The unmet need calculation was originally created to address distribution issues within 

the Native American health care system. Historically, the IHS has been challenged for its 

inequitable distribution of resources among health services and facilities for the various tribes.21

The distribution controversy reached a head during Rincon Band of Mission Indians v. Harris,

22

where a group of California Indians sought redress for disparate funding levels for Indian health 

care in California. At the time, less than 2 percent of total IHS funding had been allocated to 

California despite that approximately 10 percent of the IHS user population lived in California.23

IHS had been using a priority system that emphasized program continuity to distribute any 

remaining funds. The court ruled in favor of the plaintiff Indians, finding that the system failed to 

set a rational and proper standard for the equitable distribution of Snyder Act funds.24 The court 

mandated systemic improvements to resolve the inequities. In response to the court order, IHS 

developed an equity fund as a proportion of annual appropriations, referred to as the Indian 

Health Care Improvement Fund (IHCIF). Distribution of the IHCIF is based on the unmet need 

of individual tribes.25 Currently, the IHS “Level-of-Need Funding Workgroup” establishes the 

level of unmet need, now measured as the FEHBP Disparity Index (FDI).26 

The FDI is simply the ratio of funds spent on Native American health care for a specified 

locale, compared with the benchmark cost for mainstream benefits, or the funds spent on the 

“average” American, as measured by the level of spending in the Federal Employee Health 

Benefits Program (FEHBP).27 The lower the ratio for a specified location, the more funding lags 

for Native Americans in that location, and the higher the proportion of new funding to be 

 

20 The President’s FY 2004 Budget for Indian Programs: Hearing Before the Senate Comm. on Indian Affairs, 108th 

Cong. (2003) (statements of Tex Hall, president, National Congress of American Indians, p. 7, and Julia DavisWheeler, chair, National Indian Health Board, p. 5). This number includes $9–10 billion in annual expenditures and 

$9 billion one-time facilities construction expenses. See also Northwest Portland Area Indian Health Board, FY 2004 

IHS Budget Analysis, p. 2. 21 See generally Rose L. Pfefferbaum et al., Providing for the Health Care Needs of Native Americans: Policy, 

Programs, Procedures and Practices, 21 AM. INDIAN L. REV. 211 (1997). Pfefferbaum reports that 1993 per capita 

IHS allocations ranged from a high of $1906 in Alaska to a low of $525 in Portland. Pfefferbaum at 242. 

22 Rincon Band of Mission Indians v. Harris, 618 F.2d 569 (9th Cir. 1980). 

23 Id. at 571. 

24 Id. at 572. 25 Problems remain with the adequacy of this distribution mechanism. 

26 FEHBP—Federal Employee Health Benefits Program 

27 U.S. Department of Health and Human Services, “FEHBP Disparity Index,” <http://www.ihs.gov/Nonmedical 

programs/lnf> (last accessed July 14, 2003) (hereafter cited as HHS, “FEHBP Disparity Index”). 
Staff Draft July 2004 89

allocated. Once the FDI is determined for all individual locations, the fiscal year IHCIF can be 

allocated. The threshold to qualify for the IHCIF is a score of 60 percent or less on the FDI. 

Funds are allocated to all tribes falling below that threshold level.28 

The FDI is calculated using a complicated formula based on a series of assumptions and 

comparisons.29 The first step is to determine the benchmark cost for mainstream benefits using 

an actuarial model. The benchmark (or health care spending on the average American) is the 

FEHBP, adjusted for numerous geographical and demographic differences. The second step 

combines the per capita funds available from IHS sources in that region and the funds available 

from all non-IHS resources to obtain the funds spent on health care for Native Americans.30 A 

1991 IHS survey set this non-IHS resource figure at 25 percent of the total amount spent for 

Indian health care.31 The FDI is the ratio of funds available for Native American health care 

relative to the FEHBP benchmark. 

The difference between the funds available and the benchmark is the unmet need. In FY 

2000, the federal benchmark was $2,980, the average nationwide level of funding available for 

Native Americans was $1,728, and the average FDI was 58 percent.32 Since 2000 the FDI had 

fallen to a level of 52 percent in 2003.33

In addition to its role in the distribution of the IHCIF, the FDI has become a useful tool 

for evaluating the overall Indian health system. For example, the figures illustrated above 

demonstrate the funding shortfall on an individual level. Since the FDI is a ratio, it applies 

equally well at the program level. When the IHS funding level is divided by the FDI, the result is 

the federal benchmark funding level for a program with the number of users in the IHS program. 

 

28 HHS, “FEHBP Disparity Index.” Equitable distribution of resources is an ongoing problem. See Duane Jeanotte 

testimony before the U.S. Commission on Civil Rights, briefing, Albuquerque, NM, Oct. 17, 2003, transcript, p. 209 

(hereafter cited Briefing Transcript); Indian Health Service, “Speaking with one Voice: IHS, Tribes, Urban” (Draft 

Report on the Indian Health Service Regional I/T/U Consultation Meeting held Feb. 1,2 1999 in Reno, Nevada); 

U.S. Congress, Office of Technology Assessment, Indian Health Care, OTA-H-290, April 1986), p. 155. 

29 HHS, “FEHBP Disparity Index.” 

30 Ibid. 

31 This value is based on a 1991 survey. It does not reflect the rapid growth in the IHS user population since 1991, 

nor the rapid increase in collection efforts on the part of IHS and CMS. By some estimates as many as 40 percent of 

Native Americans are eligible for Medicaid, with more eligible for Medicare and SCHIP, and as many as 50 percent 

have private insurance yet IHS estimates that only 25 percent of the money spent on Native American health care 

comes from non-IHS sources. See Kaiser Commission on Medicaid and the Uninsured, Key Facts, June 2000, 

<http://www.kff.org/content/2000/1525/American percent20Indians.pdf> (last accessed July 14, 2003). A recent 

CMS survey explains the extent to which CMS and IHS are unaware of the actual numbers of Native Americans 

eligible and/or enrolled in public health insurance programs. See Kathryn Langwell et al., American Indian and 

Alaska Native Eligibility and Enrollment in Medicaid, SCHIP, and Medicare—Estimating Eligibility and 

Enrollment: A Methodological and Data Exploration, December 2003, pp. 1–3. 

32 HHS, “FEHBP Disparity Index.” 

33 U.S. Department of Health and Human Services, Indian Health Service, “FY 2003 IHCIF—Area Summary,” 

<http://www.ihs.gov/NonMedicalPrograms/lnf/2003/AreaAllowanceSummary.pdf> (last accessed July 7, 2003). 
Staff Draft July 2004 90

 IHS average IHS Total 

FDI = .52 = ----------- = -------------------------- 

 FEHBP average FEHBP avg. x # of IHS users 

Unmet Need for Individuals = FEHBP avg. - IHS avg. 

Unmet Need for Program = FEHBP avg. x # of IHS users – IHS total 

The President’s FY 2005 budget request for Indian programs proposes program-level 

funding of $3.7 billion, including $3.2 billion for health services and the remainder for health 

care facilities.34 Applying the FDI of 52 percent produces an unmet need in the range of $3 

billion for FY 2004. This figure reflects only the unmet need for the IHS user population, not for 

the total Native American population. 

The FDI measurement system is not without its critics. In addition to possible errors in 

the 25 percent non-IHS resource figure, the Alaska Native Health Board has completed a report 

on its dissatisfaction with the Level-of-Need Funding (LNF) Workgroup. The report identifies the 

following deficiencies: the formula fails to account for prevention and public health strategies, 

including facilities construction; the formula limits its health status indicators to the coarse 

indicators on birth, death and poverty rates; and its efficiency factors fail to account for the 

problems associated with the small and extremely isolated areas common in Alaska, where market 

conditions and comparisons simply do not apply. If these deficiencies were factored into the level 

of funding needed, the level of unmet need would be substantially greater. In addition, in general 

terms the Alaska Native Health Board believes that the LNF methodology gives the false 

impression that an insurance model will “fix” problems better suited to a public health model.35

Nevertheless, the LNF methodology is an accepted government measurement of 

necessary health care funding, a measurement making the unequivocal statement that Native 

American health care is grossly underfunded. Significantly, the unmet need calculation includes 

only the Native Americans using IHS. Including all Native Americans would greatly expand the 

level of unmet need. In fact, the Northwest Portland Area Indian Health Board, a recognized 

leader in budget evaluation in the Native American community, estimates that providing the 

entire Native American population with the care at the level provided to federal employees 

would require $8–9 billion in increased annual funding, as calculated under LNF methodology.36

 

34 Program-level funding includes $2.99 billion from standard appropriations and $700 million from public and 

private insurance collections and a special diabetes appropriation. See HHS, FY 2005 Indian Health Service 

Justification of Estimates for Appropriations Committees, p. IHS-2. 

35 Alaska Native Health Board, “Public Health and Isolation: The Missing Elements of LNF,” October 2000, 

<http://www.anhb.org/documents/ANHB_LNF_Report.pdf> (last accessed July 7, 2003). 

36 Northwest Portland Area Indian Health Board, “FY 2004 IHS Budget Analysis,” p. 2 (hereafter cited as NPAIHB, 

“FY 2004 IHS Budget Analysis.”) The remainder of the $18 billion requested before the Senate Indian Affairs 

Committee is accounted for by a one-time expenditure of $10 billion for facilities. 
Staff Draft July 2004 91

Rate of Increase Relative to Inflation 

The preceding section made clear that funding levels are inadequate by the government’s 

own standards. This government failure is compounded by the failure of annual increases to even 

keep pace with inflation and population growth. Current estimates place the growth rate of the 

IHS user population at 1.8 percent per year.37 Furthermore, the fastest growing segments of the 

population are the very young and the elderly, both of which carry the highest burden of 

disease.38

The overall IHS budget has grown at a rate slightly below the rate of inflation over the 

past several years. The $2.97 billion budgeted for FY 2005 appropriations represents an increase 

of 1.6 percent from FY 2004.39 This follows an increase of only 2.6 percent in FY 2004, an 

amount far below that needed to maintain the current level of services.40 As recently as FY 2000, 

annual appropriations included a line item to compensate for inflation. Though less than the 

calculated inflation rate, Congress at least attempted to maintain constant spending levels. Since 

FY 2000, not one dollar has been allocated specifically to address the rising cost of health care 

for Native Americans.41 In FY 2005 alone, this shortfall will amount to more than $50 million.42

With only limited increases proposed, actual spending power will continue to decline due 

to the high medical inflation rate, the moderate health services and facilities inflation rates, and 

the significant population growth identified above.43 The Northwest Portland Area Indian Health 

Board estimated that $360 million, a full 12.4 percent increase, would have been needed in FY 

2004 simply to cover current services and mandatory costs.44 Those figures, when updated, will 

certainly be larger for FY 2005 as the gap continues to widen. 

As an additional measure of the effectiveness of the “growing” budget, the HHS budget 

justification breaks down the allocation of individual increases, including an analysis of the 

services those increases provide. The list below represents $34 million of the $45 million 

budgeted increase, yet not one dollar of that increase produces an increase in available services: 

 

37 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-85. 38 Ibid. 

39 Ibid., p. IHS-12. 

40 NPAIHB, “FY 2004 IHS Budget Analysis,” p. 2. 

41 U.S. Department of Health and Human Services, Indian Health Service, Response to the Commission’s 

Interrogatory 19, April 2004 (hereafter cited as IHS, Interrogatory Response). 

42 Ibid. 

43 For FY 2004, the Northwest Portland Area Indian Health Board estimates the medical inflation rate for CHS 

services at 12.5 percent; the health services inflation rate at 7.5 percent; the facilities inflation rate at 4.0 percent and 

the population growth at 2.1 percent of the health services account. See NPAIHB, “FY 2004 IHS Budget Analysis,” 

p. 13. The difference between the medical inflation rate and the health services and facilities inflation rates are 

obtained by estimating the percentage of the expense subject to the respective medical and general inflation rates. 

See Ed Fox, executive director of Northwest Portland Area Indian Health Board, e-mail, Apr. 17, 2004. 44 NPAIHB, “FY 2004 IHS Budget Analysis,” pp. 9, 15. Mandatory costs include $19.6 million for federal pay 

increases, $16 million for tribal pay increases, and $25.5 million to fund staffing and operating costs for new 

facilities. See also The President’s FY 2004 Budget for Indian Programs Before: Hearing Before the Senate Comm. 

on Indian Affairs, 108th Cong. (2003) (statement of Dr. Charles W. Grim, interim director, Indian Health Service). 
Staff Draft July 2004 92

• The budget for dental health services increases by $5.7 million, yet 92,000 fewer services 

will be provided.45

• The budget for mental health services increases by $2.5 million, yet 7,700 fewer services 

will be provided.46

• The budget for alcohol and substance abuse treatment increases by $3.4 million, yet 

29,000 fewer outpatient visits will be provided.47

• The budget for contract health services increases by $18 million, yet fewer general 

medical and surgical hospitalizations will be provided, though the number of outpatient 

visits will increase by 1,175.48

• The budget for public health nursing increases by $3 million, yet 13,000 fewer patient 

visits will be provided.49

• The budget for contract health representatives increases by $1.4 million, yet 99,000 fewer 

tribally operated services will be provided.50 

For most of the increases listed above, the majority of the funding increase is to cover 

salary increases. In some cases, a portion is applied to the staffing of new facilities. No specific 

funding is provided for the effects of inflation on supplies and facilities.51

FY 2005 is not the first year with limited budget increases. The graphs below clearly 

illustrate the financial trends afflicting Native Americans. The first of the two illustrates that the 

per capita spending power for IHS appropriations, in 1996 dollars, dropped from a high of 

$1,439 in 1991 to a low of $1,197 in 1998.52 IHS attributes most of this drop to medical 

inflation.53 

 

45 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-53. 46 Ibid., p. IHS-59. 

47 Ibid., p. IHS-67. 

48 Ibid., p. IHS-75. 

49 Ibid., p. IHS-83. 

50 Ibid., p. IHS-95. Similar IHS figures for the FY 2004 budget indicate a 6 percent reduction in inpatient 

admissions; a 4 percent reduction in outpatient visits; a 3.5 percent reduction in dental services; and a 1 percent 

reduction in CHS outpatient visits. See IHS Business Plan as cited in The President’s FY 2005 Budget for the Indian 

Health Service: Hearing Before the Senate Comm. on Indian Affairs, 108th Cong. (2004) (statement of Don 

Kashavaroff, Alaska Native Tribal Health Consortium). 51 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, pp. IHS-53, 59, 

67, 75, 83, 95. 

52 Indian Health Service, “10 Year Expenditure Trends,” <http://www.ihs.gov/nonmedicalprograms/ihdt2/bd/IHS10 

yr.pdf> (last accessed June 21, 2004). IHS figures show that in 2003 the level for actual per user buying power has 

decreased 15 percent over 12 years, with slight decreases on all charted figures in the table. 

53 Indian Health Service, Revenues and Buying Power Trends: Indian Health Service 2001–2003 (Presentation of 

Mar. 4, 2003) (hereafter cited as IHS, Revenues and Buying Power Trends: Indian Health Service 2001–2003). 
Staff Draft July 2004 93

Figure 2: Ten-Year Trends in IHS Buying Power Per Capita 

Source: Indian Health Service “Ten Year Funding Trends,” 

<www.ihs.gov/nonmedicalprograms/ihdt2/Oldindex.asp> (accessed July 3, 2003). 

Only enhanced collection efforts have prevented a continuous decline since 1998.54 The 

second graph, provided by the Northwest Portland Area Indian Health Board, illustrates the 

budget relative to inflation, without the benefit of collections.55 The overall effect is that per 

capita spending power is roughly the same now as it was in 1991. In fact, accounting for 230,000 

new users between 1991 and 2003 the buying power per user increased only 2 percent.56

 

54 IHS increased collections by 453 percent from 1991 to 2003. See IHS, Revenues and Buying Power Trends: 

Indian Health Service 2001–2003. 

55 Northwest Portland Are Indian Health Board, Creating Healthier Indian Communities for a Healthier America: 

Fiscal Year 2003 Indian Health Service, Tribal and Urban Needs-Based Budget, June 13, 2001. 56 IHS, Revenues and Buying Power Trends: Indian Health Service 2001–2003. 

0

500

1000

1500

2000

2500

1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001

Year

Dollars per user

PHCC + IHS Wraparound Spending

PHC + Collections (PHCC)

IHS Personal Health Care Spending (PHC)
Staff Draft July 2004 94

Figure 3: Comparison of Approved IHS Budget and IHS Inflation-Adjusted Budget 

 Source: Northwest Portland Area Indian Health Board, Creating Healthier Indian Communities for a Healthier 

America: Fiscal Year 2003 Indian Health Service, Tribal and Urban Needs-Based Budget, June 13, 2001. 

Even in 1991, this fight against inflation and the resultant erosion of buying power was 

nothing new. The legislative history of the Indian Health Care Improvement Act reveals that 

Congress recognized that many factors prevented improvement of the health status of Native 

Americans, “not the least of which is the fact that rampant inflation is constantly eroding the 

purchasing power of the fiscal resources available to the IHS.”57 

These effects of inflation on financing for Native American health care are well 

documented, as Congress has repeatedly failed to provide funding sufficient to cover even the 

costs of inflation.58 Yet, many public health programs could have received less funding than 

desired or needed over that same period. Consequently, we turn our examination to these other 

health care programs, including Medicare, Medicaid, and federally funded health care for 

veterans, government employees, and prisoners. 

 

57 S. Rep. No. 94-1194, at 73 (1976), reprinted in 1976 U.S.C.C.A.N. 2711. 

58 Over the same period, the inflation adjusted discretionary outlays for all government programs increased 15.6 

percent. See Robert C. Sahr, “Summary of National Government Budget Data,” p. 10, <http://oregonstate.edu/ 

Dept/pol_sci/fac/sahr/sumbudg.pdf> (last accessed Mar. 29, 2004). 1 1.5 2 2.5 3

1993 1994 1995 1996 1997 1998 1999 2000 2001

Year

Dollars in billions

Budget I Budget II
Staff Draft July 2004 95

Comparison to Other Government Spending 

Establishing that current funding levels are inadequate and that increased appropriations 

have failed to keep track with inflation does not necessarily complete the argument that federal 

policy discriminates against Native Americans. In a time of shrinking expenditures it is only 

natural that programs will experience cutbacks. It is helpful then to examine other federal 

programs to determine how their funding compares with that of Native Americans. Drawing this 

comparison leads to the conclusion that annual per capita expenditures for Native American 

health care programs fall below the level for every other federal medical program and standard. 

Comparisons available include federal prisoners, beneficiaries of Veterans Administration 

services, Medicare and Medicaid, and federal employees enrolled in the FEHBP. 

Staking claim to the lowest level of federal funding is unfortunate enough standing alone. 

When the actual figures take form graphically a simple comparison becomes a revolting 

disparity. Figure 4 illustrates the importance placed on Native American health care relative to 

every other federal medical program. 

Figure 4: Per Capita Health Care Expenditures 

$5,915

$5,214 $5,065

$3,879 $3,803

$619

$1,914

$3,725

$0

$1,000

$2,000

$3,000

$4,000

$5,000

$6,000

$7,000

Medicare

expenditures 

VA users US per

capita 

Medicaid

acute care

Federal

prisoners

FEHB

benchmark

per IHS user

IHS medical

care

IHS nonmedical

Source: U.S. Department of Health and Human Services, Indian Health Service, Office of Management Support, 

Division of Financial Management, “IHS Appropriations Per Capita Compared to Other Federal Health Expenditure 

Benchmarks,” March 2003, submitted by fax Mar. 27, 2003. 

In numerical terms, HHS estimates the FY 2003 annual per capita health care spending 

for the general population at $5,065. In contrast, IHS spent $1,914 per eligible user or 38 percent 

of that spent by the general population.59 Although updated figures are not yet available, the 

 

59 Indian Health Service, Office of Management Support, Division of Financial Management, IHS Appropriations 

Per Capita Compared to Other Federal Health Expenditure Benchmarks, March 2003, submitted by fax Mar. 27, 

2003. 
Staff Draft July 2004 96

limited increases over the past two fiscal years have almost certainly lowered the amount spent 

on Native Americans relative to the general population—and every other federal program 

providing health care. 

Rate of Increase Relative to Other HHS Components 

The previous section compared funding for Native American health care in absolute 

terms with the funding for other health programs. In contrast, this section compares the increase 

in IHS funding with the increases for other HHS components, in particular the health-related 

components within CMS. 

Comparing the FY 2004 rate of increase with other HHS programs, not surprisingly, IHS 

falls short. The 2.6 percent increase for FY 2004 compares with a 5.5 percent increase for 

Medicaid and a 10.9 percent for Medicare.60 Over a longer period IHS fares no differently; it has 

the smallest rate of increase within HHS from FY 2000 to FY 2004.61 Furthermore, when the 

annual IHS budget figures are adjusted for inflation it becomes apparent that the per capita 

spending power for IHS appropriations, in inflation-adjusted dollars, is roughly the same today 

as it was in 1991.62 Looking at an extended period of time, the inflation-adjusted expenditures 

for HHS discretionary programs increased more than 300 percent from 1975 to 1999, compared 

with an increase of less than 200 percent for IHS programs for that same period. Notably, most 

of the divergence in annual increases for HHS and IHS programs has been created since 1990.63 

Making this comparison between HHS and IHS programs creates a presumption that the 

congressional allocation of scarce discretionary funding reflects our nation’s assignment of value 

to funding recipients. It could be said that requesting a different allocation of discretionary funds 

simply calls for an adjustment to the value assigned to the respective programs. The President’s 

Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral 

Research offers guidance for assigning value in these situations. Its 1983 report suggests that the 

“priority in the use of public subsidies should be given to achieving equitable access for all 

before government resources are devoted to securing more care for people who already receive 

an adequate level.”64 Applying this guidance, it follows that demonstrating an ability to raise 

funding levels for other similarly situated programs, while refusing to raise levels for Native 

Americans, expands inequity and violates ethical principles. The extent of current inequities can 

either be attributed to intentional discrimination or gross negligence, especially when examined 

in light of other funding disparities and other actions taken contrary to the stated intent of 

decision-makers. One such statement of intent involves the apparent use of increasing third-party 

collections to offset the failure to raise appropriated funding levels. 

 

60 HHS, FY 2004 Budget in Brief. 61 NPAIHB, “FY 2004 IHS Budget Analysis,” p. 39. 

62 Indian Health Service, “Ten Year Funding Trends,” <http://www.ihs.gov/nonmedicalprograms/ihdt2/Old 

index.asp> (last accessed July 3, 2003). 

63 National Congress of American Indians, “FY 2005 Appropriations: Indian Country and the Federal Budget,” 

<http://www.ncai.org/main/pages/issues/other_issues/documents/Approps/2005_budget_recommendations.pdf> 

(last accessed Mar. 31, 2004). 

64 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 

Securing Access to Health Care, The Ethical Implications of Differences in the Availability of Health Services, vol. 

1, March 1983, p. 5. 
Staff Draft July 2004 97

 Improper Use of Increased Collections from Third Parties 

When Congress made the IHS payor of last resort65 and granted the IHS authority to 

collect payments from Medicare, Medicaid, and other public and private insurance programs 

Congress anticipated that as revenues increased from these third parties there would be a 

tendency for Congress to offset those new revenue sources by withholding or limiting additional 

increases in appropriated funding levels.66 Consequently, Congress included language to 

articulate the express intent that increased collections not be used to justify lower appropriations 

levels.67 

Congress has failed to abide by this clear mandate. Only enhanced collection efforts have 

made up for shortfalls created by inflation and population growth, and prevented a continuous 

decline from 1991 until today.68 Recall that collections from third parties increased 453 percent 

from 1991 to 2003.69 As a result, Native American health care programs have come to rely on 

third-party providers for 16 percent of their funding.70 

This pattern of reliance on third-party reimbursements has potential negative 

consequences beyond the replacement of needed appropriations, particularly in the face of 

shrinking state budgets. It is especially disturbing to the American Indian Health Commission for 

Washington State where even slight changes in Medicaid benefits or eligibility would have 

serious consequences for tribal health care programs. According to the commission: 

Elimination of Medicaid adult dental benefits could jeopardize tribal dental 

programs that have taken years to build. The cost of establishing dental programs 

in rural areas, including the recruitment and retention of qualified dentists with 

the cultural competency to work in a Tribal setting has been significant. If the 

Medicaid revenue that sustains these programs is cut, entire communities may 

lose the capacity to sustain local dental services.71

 

65 The payor of last resort is entitled to seek payment or reimbursement after medical services are provided to a 

patient enrolled in other “third party” programs. These third-party programs include Medicare, Medicaid, CHIP, and 

private health insurance programs, among others. See 42 C.F.R. § 136.61 (2003). 66 See 25 U.S.C. § 1641(a) (1994). 

Determination of appropriations. Any payments received by a hospital or skilled nursing facility 

of the Service (whether operated by the Service or by an Indian tribe or tribal organization 

pursuant to a contract under the Indian Self-Determination Act (25 U.S.C. §§ 450f et seq.)) for 

services provided to Indians eligible for benefits under title XVIII of the Social Security Act (42 

U.S.C. §§ 1395 et seq.) shall not be considered in determining appropriations for health care and 

services to Indians. 

Id.

67 S. Rep. No. 94-1194, at 108 (1976), reprinted in 1976 U.S.C.C.A.N. 2746. “It is the intent of the Committee that 

any Medicare and Medicaid funds received by the Indian Health Service program be used to supplement—and not 

supplant—current IHS appropriations.” Ibid. 

68 IHS, Revenues and Buying Power Trends: Indian Health Service 2001–2003. 69 Ibid. 

70 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-2. 71 American Indian Health Commission for Washington State, “Uniform Benefits Package for American Indians and 

Alaska Natives,” position paper, Dec. 12, 2002, <http://www.aihc-wa.org/Issues/Documents/Position_Papers/ 

Uniform_Benefits.pdf> (last accessed Aug. 27, 2003). 
Staff Draft July 2004 98

The impact would expand well beyond dental services. Some tribes rely extensively on 

third-party reimbursements to support their programs. For example, the Lower Elwha Band of 

Klallam of Port Angeles, Washington, has been so successful at enrolling all eligible patients that 

95.4 percent of clinic users have a third-party source for health care coverage.72 Any reduction in 

benefits from third parties causes an immediate reduction in money available to purchase health 

care services for the Lower Elwha Band specifically, and Native Americans in general. 

IHS has raising collections to an even greater level as one of its long-term goals. As 

collections are raised more money is available to purchase additional services for facilities where 

funding is the single most limiting factor. To exactly what level collections could potentially rise 

is a disturbing unknown. IHS officials estimate that at most collections could be increased 25 

percent, but that estimate is conservative since the current infrastructure could not support an 

immediate 25 percent increase in services.73 In general terms, any increase in services would 

require expanding overcrowded facilities and hiring additional staff in locations already unable 

to reach full staffing levels.74 From the CMS perspective, it is impossible to precisely determine 

current CMS expenditures with current data collection systems.75 Two factors contribute to that 

reality. First, the self-governance agreements make tribal services reporting to IHS voluntary. 

Current collections figures are based on voluntary reports and estimates. Second, for CMS 

services provided outside IHS facilities, inclusion in collection figures is dependent on selfreporting by the Native American patient. 

Regardless of the level to which IHS is able to raise third-party reimbursements, the 

entire system’s reliance on any third-party funds recovered will be real and substantial. 

Furthermore, even though congressional intent in assigning appropriations is difficult to surmise, 

the consistent widening of the gap between program-level funding and budget authority, and the 

resulting plateau in spending power creates a strong presumption that third-party collections are 

being used to justify lower levels of appropriated funding. Congressional assignment of 

appropriations over the past 14 years has failed Native Americans and is further evidence of the 

intent to continue de-prioritizing the health care needs of Native Americans. 

 

72 American Indian Health Commission of Washington State, “2003 American Indian Health Care Delivery Plan,” p. 

103, <http://www.aihc-wa.org/Issues/AIHCDP.htm> (last accessed Aug. 28, 2003). 

73 Interview with IHS executive staff, July 21, 2003. The IHS executive staff members who were present at this 

interview included Michel Lincoln, deputy director, Office of the Director; Duane Jeanotte, director, Headquarters 

Operations, Office of the Director; Robert McSwain, director, Office of Management Support; Gary Hartz, acting 

director, Office of Public Health; Paula K. Williams, director, Office of Tribal Self-Governance; Craig 

Vanderwagen, M.D., acting chief medical officer, Office of the Director; Michael Mahsetky, director, Legislative 

Affairs, Office of the Director; Lovell Hopper, director, Division of Financial Management, Office of Management 

Support; Cliff Wiggins, senior operations research analyst, Office of the Director; Jon Perez, Ph.D., director, 

Division of Behavioral Health, Office of Clinical and Preventive Services, Office of Public Health; Ron Demaray, 

division director, Self Determination, Office of Tribal Programs, Office of the Director; and Kitty Marx, senior 

policy analyst, Legislative Affairs, Division of Regulatory & Legal Affairs, Office of Management. 

74 Problems associated with overcrowded and aging facilities and the inability of IHS facilities to retain adequate 

staffing levels are discussed in detail in Chapter 3. 

75 Dorothy Dupree, Centers for Medicare & Medicaid, telephone interview, June 30, 2003. 
Staff Draft July 2004 99

Specific Funding Needs 

Every tribal leader contacted and every health care advocate interviewed identified 

increased funding as an important aspect of any effort to improve health care for Native 

Americans. Obtaining additional funding, however, will not be simple. Thus, it is important to 

understand the specific impact of failing to provide adequate funding, as well as the influence of 

marginal funding gains. Tribal leaders have compiled these data, and have calculated the gain 

they would realize for incremental changes in funding. For every $100 million in purchasing 

power, the IHS, tribal, and urban health programs would gain: 

• 365,000 outpatient visits. 

• 13,000 inpatient days. 

• 115,000 dental services. 

• 10,000 mental health contacts. 

• 28,000 alcohol treatment visits. 

• 23,000 contract health services outpatient visits. 

• 16,000 public health nursing visits. 

• 29,000 health education services.76

Consequently, with a $100 million or 3.1 percent increase in appropriated funding the Native 

American health care system would be able to provide a substantial increase in services. 

In addition to identifying the specific benefits achievable for an unrestricted increase in 

appropriations, Native American health care advocates have identified specific funding 

deficiencies in the FY 2004 budget. The identified requests having gone unanswered, the 

shortfalls remain for FY 2005. The most dramatic shortfalls involve contract health services, 

contract support costs, and Urban Indian Health Programs. They will be discussed in sequence 

below. 

Funding for Contract Health Services 

The Contract Health Services (CHS) program has very specific funding problems and its 

persistent underfunding has had a haunting effect on Native Americans. As discussed in Chapter 

3, the current program postpones, and in some cases denies outright, necessary medical services. 

Furthermore, the purchasing power of CHS funds continues to decline as the costs of service go 

up while the number of services IHS can provide go down.77 If immediate increases are not 

provided, most tribes will fall into Priority I category, where the only procedures provided are 

those that save life and limb, several months earlier than spring as in recent years.78 For the 

Cherokee Nation in FY 2004, two-thirds of CHS funds had been spent by March 2004, with six 

 

76 NPAIHB, “FY 2004 IHS Budget Analysis.” 

77 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-76. See 

this chapter’s discussion of inflation for additional figures on general losses in service despite increasing funding 

levels. 

78 NPAIHB, “FY 2005 Budget Analysis,” p. 28. 
Staff Draft July 2004 100

months remaining in the fiscal year.79 In addition, as of March 1, 2004, 3394 cases had been 

deferred, equal to the number deferred in all of FY 2003.80 These numbers do not include the 

requests that were not even made, knowing with certainty that they would be denied. 

The FY 2005 budget request includes $497 million for contract health services (CHS), an 

$18 million increase, or 3.8 percent, over FY 2004. This represents a shortfall of more than $500 

million relative to estimated need, and is well below the $60 million necessary to even maintain 

the current level of services.81 Among all IHS programs, CHS is the most vulnerable to 

inflationary pressures.82 It is estimated that between FY 1992 and FY 2003, CHS lost more than 

$250 million to inflation alone.83 The following statistics illustrate the impact of recent inflation 

on the CHS program: 

• From FY 1998 to FY 2003, billed costs per admission increased 38 percent from $10,903 

to $15,065. 

• During that same time, CHS inpatient admissions increased only 8 percent from 16,124 

to 17,513. 

• From FY 1998 to FY 2003, billed costs per visit increased 69 percent from $363 to $614. 

• During that same time, CHS outpatient care declined by 38 percent from 208,802 to 

128,571.84

Consequently, despite annual increases in CHS funding, totaling 27 percent from FY 

1998 to FY 2003, the number of patient services provided has actually decreased. 

On a positive note, the recently enacted Medicare Prescription Drug Improvement and 

Modernization Act85 will increase the buying power of CHS funding by $8 million, allowing the 

purchase of 35,000 additional outpatient visits or 3,000 additional days of inpatient care.86

Nevertheless, the fact remains that, at current deteriorating levels, only treatment for lifethreatening conditions will be funded, particularly toward the end of the fiscal year. Failure to 

immediately increase funding for CHS will lead to ever-increasing delays in delivering 

necessary, though not life-threatening, medical services. 

 

79 USCCR meeting with representatives of Cherokee Nation, Mar. 23, 2004. 

80 Cherokee Nation Health Services, “Contract Health Services Worksheet” (presented to USCCR at Cherokee 

Nation briefing March 23, 2004). 

81 The President’s FY 2004 Budget for Indian Programs: Hearing Before the Senate Comm. on Indian Affairs, 108th 

Cong. (2003) (statement of Julia Davis-Wheeler, chair, National Indian Health Board). See also HHS, FY 2005 

Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-2. 

82 NPAIHB, “FY 2004 IHS Budget Analysis,” p. 22. 

83 Ibid. 

84 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-77. 

85 Medicare Prescription Drug Improvement and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 

(2003). 

86 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-77. 
Staff Draft July 2004 101

Funding for Contract Support Costs 

As explained in Chapter 3, individual tribes and tribal consortia have been compacting 

and contracting with IHS under the Indian Self-Determination and Education Assistance Act to 

provide for their own health services.87 In fact, compacting and contracting tribes (638 programs) 

now operate programs consuming more than 50 percent of IHS operating funds.88 Perhaps the 

strongest point of contention for the tribes participating in tribal self-governance programs is the 

issue of contract support costs (CSC), specifically, the growing CSC shortfall. In testimony 

before the House Committee on Resources, the IHS deputy director, Michel Lincoln, provided 

the following definition of contract support costs: 

Contract support costs are defined under the Act as an amount for the reasonable 

costs for those activities that must be conducted by a tribal contractor to ensure 

compliance with the terms of the contract and prudent management. They include 

costs that either the Secretary never incurred in her direct operation of the 

program or are normally provided by the Secretary in support of the program 

from resources other than those under contract. It is important to understand that, 

by definition, funding for contract support costs is not already included in the 

program amounts contracted by tribes. The Act directs that funding for contract 

support costs be added to the contracted program to provide for administrative 

and related functions necessary to support the operation of the health program 

under contract.89 

The National Congress of American Indians (NCAI) estimates the FY 2004 shortfall at 

$93 million; the FY 2005 shortfall will grow to $111 million under projected appropriations.90 In 

FY 2003, Congress appropriated $285 million to meet 81 percent of the $350 million negotiated 

CSC level.91 Although on average the tribes received 81 percent of CSC, many tribes received 

far less. In FY 2002, there were 14 tribes funded below 60 percent, with the lowest funded tribe 

 

87 Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203 (codified as 

amended in scattered sections of 25 U.S.C.). Under this law, tribes can contract with the federal government to take 

over the management of all or part of their health care programs; subsequent amendments allowed tribes to compact 

with the federal government to obtain more power and independence in the management of their health programs. In 

1992, the Self-Determination Act was reauthorized through amendments to IHCIA. See Indian Self-Determination 

Act of 1992, Pub. L. No. 102-573, Title VIII §813(a), 106 Stat. 4590 (codified as amended in scattered sections of 

25 U.S.C.). 

88 Tribal Contract Support Cost Amendments of 2004: Hearing on S. 2172 before the Senate Comm. on Indian 

Affairs, 108th Cong. (2004) (testimony of Dr. Charles W. Grim, director, IHS). 

89 Contract Support Costs Within the Annual Indian Health Service Budget: Hearing before the House Resources 

Comm., 106th Cong. (1999) (testimony of Michel Lincoln, deputy director, IHS), <http://www.hhs.gov/asl/testify/ 

t990224c.html> (last accessed June 1, 2004). 

90 Tribal Contract Support Cost Amendments of 2004: Hearing on S. 2172 before the Senate Comm. on Indian 

Affairs, 108th Cong. (2004) (testimony of W. Ron Allen, treasurer of NCAI). It is important to note that the 

negotiated contract support costs “are set by the government itself, through the negotiated and audited ‘indirect cost 

rate’ process established under OMB circular A-87.” See Tribal Contract Support Cost Amendments of 2004: 

Hearing on S. 2172 before the Senate Comm. on Indian Affairs, 108th Cong. (2004) (testimony of Lloyd B. Miller, 

Sonosky, Chambers, Sachse, Miler & Munson, LLP). 

91 Tribal Contract Support Cost Amendments of 2004: Hearing on S. 2172 before the Senate Comm. on Indian 

Affairs, 108th Cong. (2004) (testimony of Dr. Charles W. Grim, director, IHS). 
Staff Draft July 2004 102

receiving only 31.6 percent.92 This disparity exists despite express wording in the Indian SelfDetermination and Education Assistance Act that contract support costs shall be awarded. 

Currently, both the legislative and judicial branches of government are making efforts to resolve 

this issue. In the legislative branch, bills have been introduced in the House and Senate that 

would provide for the permanent and full funding of contract support costs. This legislation will 

be discussed in detail in Chapter 5. In the judicial branch, the Cherokee Nation has filed suit to 

enforce the mandate of the act. The case awaits oral argument before the U.S. Supreme Court. A 

description of the case posture follows. 

Two cases involving the same contractual dispute between the Cherokee Nation and the 

Department of Health and Human Services have had certiorari granted before the U.S. Supreme 

Court.93 The dispute centers on the wording of the Indian Self-Determination and Education 

Assistance Act, the Indian Self-Determination Amendments of 1988, and the contracts made 

pursuant to those statutes. Essentially, the tribes argue that the federal government has breached 

its contracts by failing to fully fund contract support costs.94 The government argues, in turn, that 

by statute, funding is subject to the availability of appropriations and that contract support costs 

cannot be fully funded without reducing funding available to other tribes, in violation of 

statute.95 In upholding the findings of the Department of the Interior Board of Contract Appeals, 

the Federal Circuit concluded that funds were available and that the government had breached its 

contracts with the tribes in not reimbursing all contract support costs.96 The key ruling was that 

“there was no statutory restriction on reprogramming authority,” thereby making funds available 

from the lump sum appropriation.97 In contrast, the Tenth Circuit found that the specification of a 

set figure for contract support costs in the relevant appropriations bill illustrates that “Congress 

intended to limit the amount available for . . . contract support costs.”98 Consequently, the 

Supreme Court will resolve the contradictory opinions and decide whether the current tribal selfgovernance agreements are sufficient to mandate complete funding of contract support costs or 

whether future legislation would be required for such a mandate. Whether or not additional 

legislation is necessary, one current proposal has been presented and will be discussed in Chapter 

5. 

 

92 IHS, “Tribal Leader Letter of February 18, 2004,” p. 4, <http://www.ihs.gov/NonMedicalPrograms/otp/files/ 

CSC_Draft_Circular_2004_xx.pdf> (last accessed June 1, 2004). To obtain an average near 80 percent, the above 

numbers are averaged with 166 tribes funded at 90 percent or greater, including 53 tribes funded at 100 percent or 

more. Ibid. 

93 Cherokee Nation of Oklahoma v. Thompson, 2004 U.S. LEXIS 2027 (U.S., Mar. 22, 2004) an appeal from 

Cherokee Nation of Oklahoma; Shoshone-Paiute Tribes of the Duck Valley Reservation v. Tommy G. Thompson; 

Michael J. Trujillo, 311 F.3d 1054 (10th Cir. 2002) and Thompson v. Cherokee Nation of Oklahoma, 2004 U.S. 

LEXIS 2028 (U.S., Mar. 22, 2004) an appeal from In re Cherokee Nation of Oklahoma, 2001 IBCA LEXIS 4 

(I.B.C.A., Mar. 21, 2001). 

94 334 F.3d at 1079. 

95 Id.

96 Id. at 1095. 97 Id. at 1086. 

98 Id. at 1065. 
Staff Draft July 2004 103

Funding for Urban Programs 

Urban funding has a unique set of problems. In addition to funding levels far below that 

of reservation Indians, urban Indians face representation problems that, among other factors, 

restrict how money can be spent on Urban Indian Health Programs. 

By some estimates, 61 percent of Native Americans live in urban areas.99 The total 

amount requested for appropriation in FY 2005 for all urban Indian programs, treating 61 percent 

of all Native Americans, is $32.4 million, an increase of $791,000 from FY 2004. This represents 

approximately 1 percent of annual IHS appropriations for programs actually serving only 24 

percent of the entire Native American population, or those fortunate enough to live in those areas 

with an urban Indian program. The other 37 percent of all Native Americans live in urban areas 

without urban Indian programs and have no IHS care whatsoever. Considering the total urban 

Indian population, the level for current unmet needs rises to more than $1.5 billion.100

Nevertheless, advocates for urban health care request only an additional $6 million in the face of 

two compelling realities.101 

First, and perhaps most importantly, the current political and fiscal climate is unlikely to 

support substantial increases in funding levels. Congress has shown no inclination to raise 

funding levels even enough to compensate for inflation, much less to immediately double or 

triple a multibillion dollar program. Second, and almost overshadowed by the first concern, the 

current IHS structure, most notably facilities and employees, cannot accommodate immediate 

full funding.102 Any attempt to fully fund urban Indian health care would require extensive 

structural change and a gradual increase in funding.103 Certainly, few if any, Native American 

leaders would refuse an immediate and substantial increase in funding. The fundamental point is 

that, in the unlikely event that Congress appropriates $18 billion for IHS in FY 2005, it would 

still take several years before the system would be functioning at the expected level. 

Restrictions on Funding 

Failing to raise appropriations to an adequate level is the obvious way in which Native 

Americans are deprived of necessary funds, but it is not the only way. Federal rules and 

regulations governing how money is allocated and spent can also contribute to underfunding or 

an irrational distribution of funds. The most controversial of these, and as mentioned earlier 

perhaps the most misunderstood, is entitlement status. To the tribes located in regions with 

significantly lower per capita spending by the IHS, how funding increases are distributed can be 

no less important. Finally, to those urban Indians who have lost funds designated for their use via 

 

99 Urban Indian Health Institute, “National Aggregate Urban Indian Data,” <http://www.uihi.org/data.asp> (last 

accessed Aug. 23, 2003). 

100 The President’s FY 2004 Budget for Indian Programs: Hearing Before the Senate Comm. on Indian Affairs, 

108th Cong. (2003) (statement of Kay Culbertson, executive director, Denver Indian Health and Family Services). 

101 Ibid. 

102 Ibid. See also Jeanotte interview. 103 The President’s FY 2004 Budget for Indian Programs: Hearing Before the Senate Comm. on Indian Affairs, 108th 

Cong. (2003) (statement of Kay Culbertson, executive director, Denver Indian Health and Family Services); ITU 

Budget Workgroup, “FY 2003 Needs Based Budget Presentation,” p. 18, <http://www.npaihb.org/index.html> (last 

accessed Aug. 19, 2003). 
Staff Draft July 2004 104

regulations granting discretionary authority to tribal programs, appropriations regulations hold 

particular interest. Each will be discussed below. 

Entitlement Status 

The first of the issues surrounding the federal rules and regulations with a potential 

impact on health services is the status accorded to the entire program in the appropriations 

process. The status of the program determines whether funding will be provided at levels defined 

by Congress on an annual basis (discretionary appropriations) or whether funding will be 

provided to cover actual need (entitlement programs). 

Independent of these government labels, a perception has been created among Native 

American peoples over the years that health care is an entitlement for Native Americans. In 

simple terms, many Native Americans believe that they bargained for health care when they 

signed treaties giving up their land. Therefore, whether the government should finance the IHS is 

not the question; annual appropriations decisions should not be subject to congressional 

discretion. When the federal government accepted the responsibility, it became an “entitlement” 

for Native American peoples. 

From the federal government perspective, the argument against entitlement status is 

obvious; granting that status would be prohibitively expensive.104 As an entitlement similar to 

Medicaid, care would be provided, if necessary, and the government would be responsible for 

payment, subject to certain limitations. Passing legislation to formally transform Native 

American health care into a Medicaid-like entitlement would appear to be completely untenable. 

In the current fiscal environment, advocates must lobby unceasingly merely to obtain increases 

to keep pace with inflation. 

From a Native American perspective, the entitlement question is not answered so simply. 

The individual Native American is unconcerned with the cost to the federal government. That the 

contract has already been acted upon ends the discussion. Some advocates for Native Americans, 

though, hesitate to embrace entitlement for both political and policy reasons.105 

Politically, calling for entitlement status may act as a “poison pill” if pursued as part of 

the Indian Health Care Improvement Act.106 It may be such a contentious issue that its inclusion 

would delay passage and foster opposition to other provisions that would have otherwise passed. 

Even if passed, its controversy may lead to a limitation on services or the attachment of 

unacceptable eligibility criteria.107 Some programs, currently operating at an above average level, 

might be compressed to an average or minimum level.108 Myra Munson, an attorney and 

advocate for Native American health care, expressed concern that granting entitlement status 

would become a ceiling or maximum on health care, as opposed to the floor envisioned by most 

 

104 By some estimates per capita expenditures would more than double and the number of Native Americans eligible 

would increase dramatically. See Northwest Portland Area Indian Health Board, “Should Indian Health Care 

Improvement Act Propose Entitlement Status?” p. 6 (presented August 31, 1999 in Salt Lake City, UT). 

105 Ibid. 

106 Ibid., p. 2. 

107 Ibid., p. 5. 

108 Ibid., p. 6. 
Staff Draft July 2004 105

entitlement advocates.109 In addition, Native Americans would likely lose many of the public 

health benefits of the current system, including the many beneficial aspects of using IHS as a 

resource and advocate, and the flexibility to tailor services to local needs.110 A closely related 

concern is that making health care an entitlement and forcing Native Americans to access 

mainstream health care systems would become a shrouded attempt to resurrect the failed 

assimilation policies of the past.111 

With all these concerns, the Native American communities, collectively, have been 

unable to build a consensus on the definition and application of any potential entitlement 

program. What remains clear, though, is that the placement of Native American health care 

funding in the “lower” status of a discretionary expenditure makes a political statement that less 

value is given to Native Americans relative to other recipients of federal health care financing. 

Accordingly, it provides additional support to the argument that the federal government 

intentionally discriminates against Native Americans in the provision of health care. 

To some extent, this debate is a fundamental debate over the true scope of the federal 

responsibility for providing health care to Native Americans—and whether that responsibility 

includes providing the necessary funding. Without a doubt, if Native American health care 

continues to be underfunded, quality will suffer. As long as funding remains subject to annual 

appropriations, then Congress has the option of whether or not to provide adequate care. With 

history as a guide, the Commission anticipates that underfunding will remain a perpetual obstacle 

to raising the health status of Native Americans. After Native American health care becomes an 

entitlement, the federal responsibility becomes a mandate and funding will no longer hold the 

place as the single greatest limiting factor on raising the health status of Native Americans. For 

that reason, the question of entitlement status deserves recognition as an issue of immediate 

concern. 

IHCIF Distribution Rules 

Current distribution is determined by a combination of past funding levels and a 

distribution formula based on the level of current unmet need as explained earlier in the chapter. 

To the extent that funding levels represent ability to provide adequate care, uneven funding 

distribution creates inequity. This section will explain how current inequities are reinforced by 

the established distribution mechanism and its reliance on past funding levels. 

According to the IHS Funding Distribution Worksheet, FY 2001 per capita spending 

levels varied from as little as $719 in the Oklahoma Area to as high as $1,415 in the Billings 

 

109 Munson interview. 

110 Northwest Portland Area Indian Health Board, “Should Indian Health Care Improvement Act Propose 

Entitlement Status?” p. 9 (presented August 31, 1999 in Salt Lake City, UT). 

111 Fox Testimony, Briefing Transcript, p. 188. Furthermore, this desire to assimilate is motivated by a “deep seated 

ambivalence about Indian people and Indian tribes. Assimilation is the ugly goal of many reforms that like the 

groundhog on ‘Groundhog Day’ reoccurs on a daily basis. It’s seldom spoken, but it is often behind many reforms.” 

Ibid. 
Staff Draft July 2004 106

Area.112 The national per capita average is $1,190. The Cherokee Nation has calculated the 

amount necessary to eliminate this disparity and to raise all IHS and tribal programs to 80 

percent of needed funding. For FY 2001, its figure was more than $1 billion.113 To address this 

need Congress appropriated $26 million in FY 2003.114 For the Oklahoma Area this marginal 

distribution amounted to $9.5 million to spend on approximately 300,000 IHS users.115 At the 

current rate, funding for Oklahoma would have difficulty maintaining current levels, much less 

reaching the 80 percent threshold. 

Administration of Specific Appropriations 

Specific regulations govern the manner in which designated appropriations are spent. 

This section will explain how some regulations prevent efficient and effective administration of 

government funds. Two examples were presented during the October briefing. 

First, Gallup Indian Medical Center officials explained how even minor facilities 

modifications were not permissible at the local level unless specifically authorized by Congress. 

The director of the facility explained one change that would have improved service, but lamented 

that the change would take years to go through the approval and appropriations process. In a 

similar situation the Navajo Nation had been appropriated funds for the provision of substance 

abuse–related services. The IHS interpretation allowed the money to be spent on the construction 

of modular facilities, but would not allow permanent structures.116 A typical solution to this 

problem entails drafting legislation, or amendments to legislation, including the specific land or 

facility modifications.117 Depending on the vagaries of the legislative process this might take 

years, and in some cases be overcome by events prior to enactment. A related complaint by 

administrators of the Gallup center addressed the 18–24 month IHS process of negotiating lease 

agreements for facilities.118 

A separate issue, identified by Norman Ration of the National Indian Youth Council, 

involved specific appropriations designated for an Albuquerque dental facility. One half of this 

funding was administered through nearby tribes, who, in turn, used the funds elsewhere. The 

remaining half could only be spent through Title V, the IHCIA program authorizing expenditures 

for urban Indian programs. Consequently, instead of going to the Sipi Dental Clinic as intended 

by those who advocated for the appropriation, this funding went to the Albuquerque urban Indian 

facility, where it was spent in accordance with that facility’s discretion. The funding indeed went 

 

112 Indian Health Service, IHS Funding Distribution Area Per Capita Worksheet, FY 2001. At $2,248, per capita 

spending in Alaska is actually the highest, but because of unique circumstances (including travel requirements and 

expenses) Alaska is excluded from this discussion. 

113 Ibid. 

114 Indian Health Service, “FY 2003 IHCIF Area Summary,” <http://www.ihs.gov/NonMedicalPrograms/Lnf/2003/ 

AreaAllowanceSummary.pdf> (last accessed Apr. 6, 2004). 115 Ibid. 

116 Bill Donovan, “Feds Seek 2.5 Million; Misspent Money raises Complicated Options For Repayment or After-theFact Congressional Action,” Navajo Times, vol. XXXXII, no. 20, May 15, 2003, p. 1. 117 See Regarding the 2005 Department of Interior Appropriations Bill: Hearing before the House Committee on 

Appropriations, 108th Cong. (2004) (Testimony of Chad Smith, principal chief, Cherokee Nation), where the 

Cherokee Nation requested language authorizing a land purchase. 

118 Floyd Thompson, chief executive officer, Gallup Indian Medical Center, telephone interview, Apr. 20, 2004. 
Staff Draft July 2004 107

to urban Indians, but not where intended.119 Fundamentally, this is a representation problem. The 

urban Indians, though a majority, are primarily represented by the minority—specifically, the 

tribal leaders for that minority. 

Role of Health Insurance in Providing Access to Health Care 

Native American enrollment figures for job-based insurance and public insurance through 

Medicare and Medicaid programs fall well below those for white Americans. Consequently, 

fewer Native Americans are able to afford the health care they need and are forced to rely on 

IHS, seek out charitable care, or delay necessary treatment.120 Data from the Kaiser Commission 

on Medicaid and the uninsured indicate that 49 percent of Native Americans have access to 

employer-sponsored health insurance, compared with 83 percent of white Americans.121 For IHS 

users this figure was 22.9 percent in FY 2002 and 22.8 percent in FY 2003.122 These low figures 

may be partly attributed to high unemployment among Native Americans, 7.6 percent as opposed 

to 3.0 percent for white Americans in the FY 2000 census,123 and partly to the fact that many 

jobs available to Native Americans do not offer health insurance.124 In addition to those with jobbased insurance, an estimated 17 percent of Native Americans (42 percent of IHS users) rely on 

public health insurance, such as Medicaid, Medicare, the State Children’s Health Insurance 

Program (SCHIP), and the Veterans Administration services.125 This leaves the remainder, more 

 

119 Norman Ration, Nation Indian Youth Council, telephone interview, Apr. 15, 2004. 

120 Although comprehensive data on the charitable care provided to Native Americans is not available, if quantified 

it would certainly amount to a sizable percentage of annual spending on Native American health care. According to 

David Goehring, vice president of finance for the Rapid City Regional Health System, RCRH writes off $1.5 to 2 

million per year in noncollectible debt from Native Americans. See David Melmer, “Health Care—A State Issue,” 

Indian Country Today, vol. 23, no. 26, Dec. 10, 2003, p. 1. Furthermore, the Kaiser Foundation estimates that in 

Oklahoma the state government and private medical providers absorb more than $400 million each year in unpaid 

medical expenses. See Ray Carter, “Oklahoma’s American Indian Population Complicates Insurance Analysis,” 

Journal Record Legislative Report, Feb. 24, 2004. 121 Henry J. Kaiser Family Foundation, “American Indians and Alaska Natives: Health Coverage and Access to 

Care,” February 2004, <http://www.kff.org/minorityhealth/loader.cfm?url=/commonspot/security/getfile.cfm 

&PageID=31131> (last accessed Mar. 26, 2003). See also Kaiser Commission on Medicaid and the Uninsured, 

“Key Facts,” p. 12, June 2003, <http://www.kff.org/minority health/loader.cfm?url=/commonspot/security/getfile. 

cfm&PageID=14366> (last accessed Dec. 30, 2003) (hereafter cited as Kaiser, “Key Facts”). A general consensus 

has developed among self-governance tribal leaders that the 49 percent figure (from the Kaiser study) for job-based 

insurance was inexplicably high. Furthermore, the deterioration of economic conditions over the past two years and 

its disproportionate affect on Native Americans will have reduced this figure considerably. See USCCR Staff 

Director meeting with the Tribal Self-Governance Advisory Committee, Sept. 16, 2003. Duane Jeanotte explained 

that “the availability of insurance in the total Indian population is not known, but anecdotal information suggests 

that it’s less than other groups.” Jeanotte Testimony, Briefing Transcript, p. 199. For the IHS and tribal user 

population Mr. Jeanotte estimates that 60 percent has some type of third-party coverage. Ibid., p. 202. Actual 

numbers provided by IHS place that figure at 65 percent. See IHS, Interrogatory Response 12. 

122 IHS, Interrogatory Response 12. 

123 U.S. Census Bureau, “Employment Status 2000,” Census 2000 Brief, p. 5, <http://www.census.gov/prod/2003 

pubs/c2kbr-18.pdf> (last accessed Sept. 22, 2003). 

124 Kaiser, “Key Facts.” 

125 By some estimates as many as 40 percent of Native Americans are eligible for Medicaid, with more eligible for 

Medicare and SCHIP, and as many as 50 percent have private insurance, yet IHS estimates that only 25 percent of 

the money spent on Native American health care comes from non-IHS sources. See Kaiser, “Key Facts.” Veterans 

Administration programs serve more than 165,000 Native Americans. See “VA and HHS to Improve Health Care 
Staff Draft July 2004 108

than a third of the Native American population (35 percent of IHS users), with no insurance at 

all, compared with 12 percent of the white population.126 For those individuals, IHS is the only 

obligated provider. Significantly, just under half of low-income uninsured Native Americans 

report having access to IHS.127 If IHS is unable to provide service, these uninsured Native 

Americans frequently go without health care until the situation requires emergency attention. 

Typically, “uninsurance is correlated with worse health outcomes, in part because of delayed 

diagnoses and fewer options for treatment.”128 

While not diminishing the importance of insurance, at least two commentators suggested 

that insurance coverage and health care access were not coterminous.129 Equating the two terms 

suggests that the only solution necessary involves expanding insurance coverage when so many 

other factors affect Native American health care, as explained in chapters 2 and 3. Nevertheless, 

the fact remains that those with health insurance are more likely to receive quality health care 

than those without health insurance. With that in mind, the only rational explanation for the 

inordinately high number of uninsured Native Americans must be the presence of 

insurmountable barriers to obtaining health insurance. We turn now to a discussion of those 

barriers and the most effective ways to eliminate them. Barriers to obtaining insurance include 

the perception that health care is an entitlement; the stigma associated with public programs; the 

confusing and difficult enrollment processes; widespread concern that participation will lead to 

the closure of IHS; and the current structure of public health insurance programs. Each will be 

discussed below. 

A percentage of the uninsured are eligible for coverage but are not enrolled either 

because they are somehow prevented from enrolling or they choose not to enroll in programs 

available to them. One recent study found that “up to 78 percent of AI/AN [American 

Indian/Alaska Native] elders were eligible for, but not enrolled in one or more public 

programs.”130 Nevertheless, substantial data problems prevent validation of that study and 

defining any under-enrollment percentage across the entire Native American population.131 Of 

 for Indian Veterans,” Seminole Tribune, Mar. 21, 2003, p. 4. Additional sources include the TriCare program with 

the Department of Defense, serving 12,800 Native Americans and their families, see “Hopi Mom Among Missing,” 

Newsday, Mar. 30, 2003, p. W18; and state and federal correctional institutions, serving almost 29,000 inmates, see 

Bureau of Justice Statistics, “American Indians and Crime,” 1997, <http://www.ojp.usdoj.gov/bjs/pub/pdf/aic.pdf> 

(last accessed July 11, 2003). 

126 Henry J. Kaiser Family Foundation, “American Indians and Alaska Natives: Health Coverage and Access to 

Care,” February 2004, <http://www.kff.org/minorityhealth/loader.cfm?url=/commonspot/security/getfile.cfm& 

PageID=31131> (last accessed Mar. 26, 2003). 

127 Stephen Zuckerman et al., “Health Service Access, Use, and Insurance Coverage Among American 

Indians/Alaska Natives and Whites: What Role Does the Indian Health Service Play?” American Journal of Public 

Health, vol. 94, 2004, p. 57. 

128 Detailed Summary of the Health Care Equality and Accountability Act of 2003, provided by fax from the office 

of Rep. Donna Christensen, Oct. 23, 2003. 

129 Melissa Charlie, Navajo Nation, telephone interview, Apr. 30, 2004; Bill Elliott, health director, Fallon Paiute 

Shoshone Tribe, e-mail response to USCCR questions, May 14, 2004. 

130 Kathryn Langwell et al., American Indian and Alaska Native Eligibility and Enrollment in Medicaid, SCHIP, and 

Medicare—Estimating Eligibility and Enrollment: A Methodological and Data Exploration, December 2003, p. 15 

(hereafter cited as Langwell, Eligibility and Enrollment in Medicaid). 

131 Ibid., pp. 1-3. These data issues, affecting estimates in 15 states with the highest Native American populations, 

resulted in a high degree of uncertainty and a low level of confidence in the separate estimates of AI/AN eligibility 
Staff Draft July 2004 109

those who are not yet enrolled, at least some choose not to enroll based on the belief that the 

federal government is required to provide health care, without regulation or limitation, as a result 

of treaties and obligations created in court decisions and legislation. Moreover, full 

reimbursement should be neither costly nor burdensome for the individual patient.132 Many 

Native Americans feel that when their ancestors entered into treaties that promised health care 

for Native Americans they did not bargain for the Medicare and Medicaid registration and 

enrollment procedures, nor their burdensome rules and regulations.133 Likewise, they feel it is 

unnecessary to comply with the many restrictions accompanying the myriad rules and 

regulations.134 This perception of burden derives from several factors, including requests for 

private information, the necessity for documentation to support the paperwork, and the repeated 

demands on their time and energy.135 Additional factors include the historical basis for 

mistrusting federal programs, concerns regarding trust income, and the dynamic whereby 

grandparents provide child care for grandchildren.136 Some action has been taken at the state 

level to reduce the perceived burden. For example, tribal leaders in Montana have been lobbying 

for the simplification of the 17-page Medicaid form.137 Some states have had success reducing 

the complexity of their forms; California now has a seven-page form, down from 27 pages.138

The additional requirement that these forms be prepared every six months adds expense, creates 

aggravation, and effectively forms a barrier to health insurance for many Native Americans.139 

Significantly, tribally operated facilities have proved to be more effective at increasing 

enrollment in and collecting from public insurance programs than federal IHS facilities.140 This 

has been the case because Native Americans are typically more comfortable releasing private 

information to other Native Americans; the tribal facilities are motivated to seek additional funds 

available to them; the tribal facilities use a more flexible billing system capable of adapting to 

 and AI/AN enrollment in Medicaid, SCHIP, and Medicare. This uncertainty rose to such a level that the project 

objectives were altered in favor of a less ambitious methodological study. Ibid., p. 1. Specific data issues included 

varying definitions of the AI/AN population; the use of different data sources over different time periods; and the 

use of different assumptions in the acquisition of available source data. Ibid., p. 24. 

132 Dupree interview; Dupree Testimony, Briefing Transcript, p. 216. See also Langwell, Eligibility and Enrollment 

in Medicaid, pp. 8, 36. 

133 Langwell, Eligibility and Enrollment in Medicaid, p. 44. 134 Dupree interview. See also Langwell, Eligibility and Enrollment in Medicaid, p. 8. 135 A study by the California Policy Research Center found that the requirement for the production of any documents 

or records to determine eligibility was problematic. Delight E. Satter et al., “Improving Health Insurance Coverage 

for American Indian Children and Families under Healthy Families,” SCHIP Final Report, June 2002, p. 15, 

<http://www.healthpolicy.ucla.edu/pubs/files/AIAN_report_062002.pdf> (last accessed July 14, 2003) (hereafter 

cited as Satter et al., “Improving Health Insurance Coverage”). See also Dupree interview; U.S. Department of 

Health and Human Services, Indian Health Service, Response to the Commission’s Interrogatory 8, June 2004. See 

also Langwell, Eligibility and Enrollment in Medicaid, pp. 8, 9, 46. In many states it is not uncommon for patients 

to have difficulty obtaining birth or marriage certificates because they do not exist or because it represents an 

additional expense. 

136 U.S. Department of Health and Human Services, Indian Health Service, Response to the Commission’s 

Interrogatory 8, June 2004. 

137 “Tribal Leaders, Governor Discuss Economics,” Missoulian, Oct. 11, 2003, p. B1. 

138 James Crouch, California Rural Indian Health Board, telephone interview, Apr. 28, 2004. 

139 Crouch interview. See also Charlie interview and Langwell, Eligibility and Enrollment in Medicaid, p. 9. 140 Dupree interview. See also Chapter 3. 
Staff Draft July 2004 110

changing reimbursement requirements; and the tribal facilities experience less turnover, enabling 

the facility to build relationships with state government officials.141 Furthermore, studies indicate 

that “one-to-one interaction and oral communication modes are critical to communicating 

information” to Native Americans.142

In addition, Native Americans have low insurance participation rates because they fear 

that participating in public insurance programs could lead to the elimination of IHS.143 This fear 

has been reinforced by budget proposals that have, in essence, used the amount collected from 

public insurance programs to demonstrate an increase in federal spending, without necessarily 

increasing appropriated funding levels, a dynamic that has guided budgetary policy over the past 

10 or more years.144

The stigma sometimes associated with public programs also limits Native American 

enrollment in Medicare and Medicaid. Historically, stigma has centered on the perception others 

have of welfare recipients.145 Many beneficiaries of public programs feel that they are perceived 

as lazy and undeserving, and fail to get respect as a result of their decision to accept public 

assistance.146 A study by George Washington University researchers has found that the actual 

stigma is even broader.147 Stigma is related as much to how recipients will be treated in the 

application process and how health care providers will treat those recipients once they are 

enrolled, as it is to public perception.148 This stigma is amplified by several of the procedural 

factors discussed below. 

Many Native Americans are hindered by the confusing and difficult nature of the 

enrollment process.149 Very few Native Americans understand the Medicaid and SCHIP 

eligibility requirements; in fact, many IHS employees are equally confounded.150 At least one 

state, Oklahoma, has solved this problem by placing state employees in Indian health facilities to 

facilitate Medicaid enrollment.151 In other states, IHS and tribal officials encounter resistance 

working with county and state workers.152 One frequent misunderstanding in the enrollment 

process involves Native Americans being asked for co-payments for programs such as SCHIP, 

 

141 Ibid. 

142 Langwell, Eligibility and Enrollment in Medicaid, p. 36. 143 Satter, “Improving Health Insurance Coverage.” 

144 Lovell Hopper, director, Division of Financial Management, Indian Health Service, interview in Rockville, MD, 

July 21, 2003. See also this chapter’s discussion of the improper use of increased collections. 145 Langwell, Eligibility and Enrollment in Medicaid, p. 37. 146 Sara Rosenbaum et al., “Beyond Stigma: What Barriers Actually Affect the Decisions of Low-Income Families 

to Enroll in Medicaid?” July 2000, <http://www.gwu.edu/~chsrp/pdf/stig.pdf> (last accessed July 11, 2003). 147 Ibid. 

148 Ibid. 

149 Dupree interview and Langwell, Eligibility and Enrollment in Medicaid, p. 8. 150 Ibid. See also U.S. Department of Health and Human Services, Indian Health Service, Response to the 

Commission’s Interrogatory 8, June 2004 (hereafter cited as HHS Interrogatory Response 8, June 2004), and 

Langwell, Eligibility and Enrollment in Medicaid, p. 37. 151 Chris Walker, executive director, Cherokee Health Services, interview in Washington, DC, Apr. 23, 2004; Jim 

Farris, Hastings Indian Hospital, telephone interview, May 19, 2004; James Cussen, Claremore Indian Hospital, 

telephone interview, May 27, 2004; Thompson interview. 

152 HHS Interrogatory Response 8, June 2004. 
Staff Draft July 2004 111

when they are specifically exempt from the co-payment requirement.153 Any form of cost sharing 

acts as a barrier to enrollment in public programs; more so when the co-payment is neither 

required nor necessary.154 In addition, at least four states (California, Oregon, Washington, and 

Idaho) are debating co-payment and/or premium provisions to their state Medicaid programs.155

In a very encouraging development, the state of Washington attempted to implement a special 

provision to allow a waiver of co-payments for Native Americans. However, the Centers for 

Medicare & Medicaid Services (CMS) recently notified Washington that doing so violated Title 

VI of the Civil Rights Act.156 Another historical error has been the application of liens to enforce 

payment of medical bills. Many Native Americans in northern Nevada, and elsewhere, refuse to 

apply for Medicaid for fear they will lose their property.157 Compounding the lack of knowledge 

is inconsistent guidance provided by CMS. Policy is frequently promulgated by telephone from 

CMS headquarters as a result of CMS regulations seen as incomplete with respect to Native 

American health care.158 Therefore, the answer to a specific question, and consequently, policy at 

the local level, may depend on which CMS official answers the telephone on that specific 

occasion.159

Yet another solution to enrollment problems can be found in the Medicaid Administrative 

Match program. Under the program, federal funding can be accessed, through the individual 

state, to contract for outreach and access activities.160 A few states, including Washington, 

Oregon, Alaska, and Idaho, have granted these contracts to tribes.161 Extending this program to 

other states requires the approval and coordination of each individual state. Federal 

encouragement may be necessary to accelerate this process.162 

In addition to factors adversely affecting individual enrollment in insurance programs 

that limit access to health care, there are procedural factors that limit access to care. One such 

factor is the association of the 100 percent Federal Medical Assistance Percentage (FMAP) with 

the IHS facility, rather than the individual. In general terms, FMAP is the statutory percentage of 

 

153 See Dupree Testimony, Briefing Transcript, p. 212, and Dupree interview. 154 Dupree Testimony, Briefing Transcript, p. 212. 

155 Crouch interview. See also Northwest Portland Are Indian Health Board, 2004 Legislative Plan, Feb. 11, 2004, p. 

7. 

156 Northwest Portland Are Indian Health Board, 2004 Legislative Plan, Feb. 11, 2004, p. 7. The Northwest Portland 

Area Indian Health Board has joined the State of Washington and the American Indian Health Commission of 

Washington in challenging that determination. 

157 Alan Burgess, Tribal Health Administrator, Owyhee Community Health Facility, telephone interview, May 12, 

2004. See also Regarding the Reauthorization of the Indian Health Care Improvement Act H.R. 2440 and S. 556 

Title IV and Amendments to the Social Security Acts: Hearing Before the Senate Comm. on Indian Affairs, 108th 

Cong. (2003) (statement of Myra Munson, Sonosky, Chambers, Sachse, Miller & Munson, LLP), and Langwell, 

Eligibility and Enrollment in Medicaid, p. 43. 158 Dupree interview. 

159 Dupree interview; Fox interview. 

160 Northwest Portland Area Indian Health Board, Tribal Implementation of Medicaid Administrative Match, 

September 2003, p. 1. These activities include those performed by health care providers, as well as by administrative 

staff. 

161 Ibid. 

162 Ibid., p. 3, and Langwell, Eligibility and Enrollment in Medicaid, pp. 8–9. 
Staff Draft July 2004 112

Medicaid funds paid by the states, but reimbursed by the federal government.163 Without the full 

reimbursement accompanying 100 percent FMAP status, the states have no incentive to enroll 

Native Americans in Medicaid. This contributes in part to the low numbers of eligible Native 

Americans enrolled in Medicaid. 

Under the current arrangement, full federal reimbursement for state expenditures is 

dependent on Native Americans receiving health services at approved IHS facilities. Currently, 

contracted health care, long-term care, and home care do not qualify for the 100 percent FMAP 

reimbursement.164 In the absence of full reimbursement by the federal government for health 

services provided to Native Americans enrolled in Medicaid, states are required to pay a portion 

of the costs of health services received at non-IHS approved facilities. Consequently, states have 

no financial incentive to increase Native American enrollment in Medicaid. By extending the 

100 percent FMAP to all facilities, an incentive is provided to the states and they will be more 

likely to encourage Native American enrollment in public programs. 

A slightly different manifestation of this same issue is raised in the context of tribal 

nursing homes. Because tribal nursing homes are not eligible for 100 percent federal 

reimbursement, states are less inclined to certify them.165 Uncertified facilities are ineligible for 

Medicare, making them unprofitable, particularly on or near reservations.166 Other procedural 

barriers include the coverage available under Medicare Part B and various technical issues 

associated with those eligible for both Medicaid and Medicare, or dual eligibles.167 

In addition to the system and facility requirements, individual eligibility requirements can 

also impose barriers. In the context of Medicare, the requirement for 40 quarters of Social 

 

163 U.S. Department of Health and Human Services, “Office of Health Policy, Federal Medical Assistance 

Percentages,” <http://aspe.os.dhhs.gov/health/fmap.htm> (last accessed Dec. 18, 2003). 

164 Indian Health Service, “Speaking With One Voice IHS, Tribes, Urban” (Draft Report on the Indian Health 

Service Regional I/T/U Consultation Meeting held Feb. 1, 2, 1999, in Reno, Nevada) <http://www.ihs.gov/ 

AdminMngr Resources/reauthor/files/ihs-5ren.doc> (last accessed July 14, 2003) (hereafter cited as IHS, “Speaking 

With One Voice”). See Christian Richardson, “Federal Decision on Indian Health Care Reversed,” Aberdeen 

American News, Oct. 4, 2003, p. A4. This may be expanding to include coverage of contracted services. On 

September 30, 2003, a federal judge in South Dakota (in an unpublished decision) ruled that the Centers for 

Medicare & Medicaid Services must reimburse the South Dakota Department of Social Services 100 percent of the 

costs of medical services provided under the CHS program for “essential” treatment. Ibid. See also Dupree 

Testimony, Briefing Transcript, p. 211. 

165 Dupree Testimony, Briefing Transcript, p. 224. To become certified, a long-term care facility must have a 

deficiency-free survey or, if there are deficiencies, a plan of correction. In addition, in many states the first 

requirement is a demonstration of need. See Cindy Myers, “Health Care Financing Administration, South Dakota 

State-Tribal Relations Committee Meeting Minutes,” Aug. 30 and 31, 2000, <http://legis.state.sd.us/interim/2000/ 

minutes/MSTR0830.htm> (last accessed Mar. 26, 2004). 

166 Dupree Testimony, Briefing Transcript, p. 224. 

167 Ibid., pp. 213–14. During the October briefing, the CMS representative, Dorothy Dupree, identified an issue with 

dual eligibles as a barrier to reimbursement. A request to CMS for additional information was answered more than 

four months past the requested response date and only two days prior to final submission of this report. CMS 

responded in that answer to interrogatories that it was unaware of any barriers constructed by dual eligibility. 

Reconciling the conflicting inputs from CMS representatives proves difficult in light of the CMS delay in 

responding to the interrogatory regarding the financial implications of billing Medicaid first in dual eligibility 

situations. See U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, 

Response to the Commission’s Interrogatory 8, June 2004 (hereafter cited as CMS, Interrogatory Response). 
Staff Draft July 2004 113

Security–covered employment excludes many elderly applicants who would otherwise qualify 

for Medicare. With high unemployment rates on reservations and the disproportionately high 

number of persons failing to meet the 40-quarter requirement, tribes have sought a Native 

American exemption.168 Such an exemption would markedly increase Medicare eligibility. 

Furthermore, confusion and insufficient information about the availability of Medicaid to 

purchase Medicare Part B coverage have excluded an additional undefined number of elderly 

Native Americans.169 In many of these cases, “patients did not have access to Medicare advisors 

or were not fully informed of this option” and its benefits.170 Consequently, under an interagency 

agreement with CMS, IHS has pursued equitable relief in the form of special enrollment for 

potential Medicare beneficiaries in selected locations.171 For those who have passed the age of 

enrollment, CMS applies a late-fee in order to enroll. This prevents individuals from waiting 

until they are ill with costly health conditions before they enroll. Title II, Section 419(b)(2), of 

the Indian Health Care Improvement Act would waive the Medicare late enrollment penalty as 

discussed in more detail in the next chapter.172

Relationship Between IHS Health Care and Third-Party Collections 

Whether an individual Native American patient has some form of health insurance is 

irrelevant to his or her eligibility to receive IHS health care. The existence of health insurance 

only affects the ability of IHS to seek reimbursement. To the extent that IHS is reimbursed for 

the care it provides, every dollar gained, in theory, is one additional dollar available for health 

care for other Native Americans. For FY 2004, this increase in services is estimated to be almost 

$600 million, not including unreported tribal reimbursements.173 Over the period 1993–2003 this 

recovery from third parties has exceeded $4 billion. Without reimbursement, IHS would still 

have provided many of the services for which IHS was reimbursed, but an additional $4 billion 

would be unavailable for IHS to use for providing services to other uninsured Native American 

patients. 

As illustrated, IHS collections from third parties have increased dramatically in the past 

10 years.174 More specifically, FY 2003 third-party collections are three times greater than the 

amount collected in FY 1995.175 This remarkable improvement in collections was achieved 

through higher negotiated Medicare and Medicaid rates; new authority to bill under the Child 

Health Insurance Program; and more efficient business management practices that involve more 

 

168 Centers for Medicare & Medicaid Services, “Current Issues.” 

169 Dupree interview. 

170 IHS, Interrogatory Response 12. 

171 IHS, Interrogatory Response 12. Under these agreements, beneficiaries able to demonstrate to SSA that erroneous 

advice was provided resulting in their non-enrollment are eligible for “equitable relief.” See National Indian Health 

Board, Medicare/Medicaid Policy Committee, Prioritizing Issues for CMS, Jan. 6, 2003, edited Jan. 17, 2003 (sent 

by fax from Bob Newcombe, Alamo Navajo Health Center, May 4, 2004). 

172 See Chapter 5. 

173 HHS, FY 2005 Indian Health Service Justification of Estimates for Appropriations Committees, p. IHS-2. 174 Indian Health Service, “Indian Health Service FY 2004 Performance Plan, FY 2003 Revised Final Performance 

Plan and FY 2002 Performance Report,” Sept. 13, 2002, p. 13, <http://www.ihs.gov/AdminMngrResources/Budget/ 

downloads/FY_2004/GPRA%20Perf-Plan%20Report.doc> (last accessed July 14, 2003). 175 IHS, Interrogatory Response 30. 
Staff Draft July 2004 114

comprehensive patient eligibility determination, improved encoding and documentation of 

services, and improved claims processing.176 Despite this significant improvement, barriers to 

full reimbursement remain and include a lack of data on eligibility and enrollment; Medicaid 

reimbursement mechanisms favoring simplicity over higher reimbursement rates; inadequate 

training; flaws in the tracking and billing process within IHS; and a lack of leadership and 

motivation at the local level. 

Forming an umbrella over each of the barriers affecting increased enrollment is the last of 

those listed above—the leadership provided to the individual operating units. More specifically, 

it is the local unit and area leaders who must make the decisions as to how limited resources will 

be applied. As discussed earlier, when tribes or tribal organizations take over IHS programs 

third-party collections inevitably increase dramatically.177 Experts attribute the relative increase 

at least partially to motivation and creativity.178 This is not to say that IHS facilities have been 

unable to increase collections. One notable example includes the Hastings Indian Hospital. 

Under the leadership of John Farris, Hastings has raised its third-party collections to the point 

where collections now exceed appropriations and 50 percent of patients now have some form of 

third-party insurance.179 This has been achieved largely through the use of state representatives 

in the hospital in coordination with an increasing number of patient benefits coordinators.180 

One noteworthy barrier to full collection is a lack of data.181 As noted earlier, enrollment 

and eligibility data for public insurance programs are inaccurate and incomplete. With complete 

and accurate data IHS and tribal health programs could maximize enrollment, increase 

reimbursement from third parties, and in the end, provide more and higher quality health care to 

a larger number of patients. In addition, this accurate data on eligibility and enrollment would 

enable IHS, CMS, and the tribes themselves to redirect financial and administrative resources to 

where the need is greatest. For example, if a particular tribe were experiencing a particularly 

high level of infant mortality, that tribe could choose to emphasize prenatal care and education. 

If another tribe continued to struggle with diseases typically associated with poor sanitation 

practices, it could direct its resources into building appropriate sanitation facilities. With this 

 

176 This improvement has required considerable investment in hardware/software development and the employment 

of additional staff for following up on aging accounts. See IHS, Interrogatory Response 30; ULP Workshop Brief, 

“Addressing Critical Concerns of Health Care Systems American Indians,” <http://www.ahrq.gov/news/ulp/ 

tribal/ulptribal10.htm> (last accessed Apr. 27, 2004); Indian Health Service, “Indian Health Service FY 2004 

Performance Plan, FY 2003 Revised Final Performance Plan and FY 2002 Performance Report,” Sept. 13, 2002, p. 

13, <http://www.ihs.gov/AdminMngrResources/Budget/downloads/FY_2004/GPRA%20Perf-Plan%20Report.doc> 

(last accessed July 14, 2003). 

177 See earlier discussion in this chapter. 178 Melanie Knight, Government Resources, Cherokee Nation, telephone interview, May 19, 2004. 

179 Knight interview; Farris interview. See also Langwell, Eligibility and Enrollment in Medicaid, p. 45. In a one 

year effort the Hastings facility was able to demonstrate a 45 percent increase in enrollment in entitlement programs. 180 Farris interview. 

181 Jeanotte Testimony, Briefing Transcript, p. 199. The use of the all-inclusive rate, described below, also leads to 

data problems. One reason to use the all-inclusive rate is the minimal data-keeping requirement. See Dupree 

Testimony, Briefing Transcript, pp. 211–14. In addition, throughout this report the Commission has identified 

problem areas where insufficient data was listed as a contributing factor. Although the technical details are beyond 

the scope of this project, it is obvious to the Commission that the data management system currently in use for tribal 

and IHS programs requires significant improvement. 
Staff Draft July 2004 115

ability to redirect resources, individual tribes could maximize the health care improvement for a 

fixed expense. 

Medicaid and Medicare reimbursement mechanisms erect a second barrier to increased 

collections. A number of different reimbursement mechanisms are available for each program 

and for each different type of medical facility. Each has its own set of advantages and 

disadvantages, as explained below. 

For IHS and tribal facilities, Medicaid reimbursement is calculated using “all-inclusive 

rates,” calculated as either a per day amount for all inpatient services provided on that day, or as 

an encounter rate for outpatient services.182 This all-inclusive rate is a coarsely developed 

average, which may vary significantly from actual costs. This variance is problematic on its own, 

but whether an encounter is defined as a single contact with a health care provider or as a single 

day where one or more health care providers is seen can magnify the problem. Depending on the 

nature of the individual contacts with a health care provider and the amount that the actual cost 

differs from the all-inclusive rate, the reimbursement amount may be significantly more or less 

than the amount anticipated or due.183 In general, the smaller facilities benefit using this 

methodology, whereas the larger facilities are more likely to benefit from an itemized model. In 

fact, a study by Medical Learning Inc. found that every one of the larger facilities surveyed 

would recover more under a full-cost recovery model than they would using the all-inclusive 

rate.184 This problem is magnified by the delay in translating real cost data to accepted 

reimbursement rates. For example, the FY 2002 Medicare/Medicaid reimbursement rates for IHS 

facilities were established using FY 2000 actual cost data for IHS.185 Again, limited data 

prevents IHS and tribal health programs from accurately evaluating the losses attributed to this 

cost management system. The Office of Management and Budget recognized this problem as it 

expressed concern about the “quality and comprehensiveness” of IHS cost report data.186 Despite 

potential negative effects of the averaging and time delay, effective negotiation by IHS has 

produced a very favorable reimbursement rate compared with past reimbursement rates, which 

“has made a tremendous difference in helping” the tribes increase collections.187 Another very 

important characteristic of the current system is that it has “made recovery possible for facilities 

 

182 For a partial explanation of the all-inclusive rate calculation, see Jeanotte Testimony, Briefing Transcript, p. 201 

and Dupree Testimony, Briefing Transcript, p. 214. See also Regarding the Reauthorization of the Indian Health 

Care Improvement Act H.R. 2440 and S. 556 Title IV and Amendments to the Social Security Acts: Hearing Before 

the Senate Comm. on Indian Affairs, 108th Cong. (2003) (statement of Myra Munson, Sonosky, Chambers, Sachse, 

Miller & Munson, LLP). 

183 Centers for Medicare & Medicaid Services, “Current Issues.” See also IHS, “Speaking With One Voice,” and 

Dupree Testimony, Briefing Transcript, pp. 215–16. 

184 Medical Learning, Inc., “IA-00-165 Inter-Agency Agreement between Indian Health Service (IHS) and Centers 

for Medicare and Medicaid Services (CMS)—Phase II: Recommendations for Systems Changes to Address Itemized 

Medicare Billing in IHS/Tribal 638 Facilities,” Final Report, November 2002, p. 1 (hereafter cited as MLI, “IA-00-

165”). 

185 Barry Clendenin, “Medicare/Medicaid Payment Rates for IHS Facilities” (Office of Management and Budget 

Memorandum of Mar. 22, 2002). For calendar years 1998, 2000, 2001, 2002, and 2003 two-year-old data were 

employed. For calendar year 1999 the delay was three years; for calendar year 2003 at least some data was from FY 

2002. See IHS and CMS, “IHS Cost Report Initiative: Introductory Briefing with History and Future Plans,” Apr. 

11, 2003. 

186 Ibid. 

187 Bob Newcombe, Alamo Navajo School Board, telephone interview, May 4, 2004. 
Staff Draft July 2004 116

that have lacked the capacity to do full individual cost reports and for whom satisfying the 

requirements of the new outpatient prospective payment system regulations would have been 

virtually impossible.”188 

For Medicare, different reimbursement mechanisms are used for inpatient and outpatient 

services.189 For inpatient admissions, reimbursement is based on Diagnostic Related Groups 

(DRGs), using a common prospective payment system.190 For outpatient facilities, 

reimbursement is based on costs; for outpatient professional services, reimbursement is based on 

the National Medicare Fee Scale (NFS). Both the DRG and NFS payment systems use cost 

averaging similar to the all-inclusive rate, but with a broader sampling base.191 IHS has not 

calculated the loss due to averaging under either the NFS or DRG reimbursement methodologies, 

nor under the cost-based system used for nonprofessional outpatient services.192 

Not all tribal facilities are eligible to use the all-inclusive rate methodology for Medicare 

services.193 In fact, it is only recently that tribal clinics have been authorized any recovery for 

Medicare Part B services.194 Instead of using an all-inclusive rate, some tribal facilities must 

operate as Federally Qualified Health Centers, reimbursed under a cost reporting system subject 

to caps and co-payments. Though data are sparse, health care administrators sense that the allinclusive rate would provide a higher reimbursement rate.195

Another major consideration is the requirement for co-payments. Native American 

patients are not required to pay for services received at IHS and tribal facilities. When a copayment is required by the applicable insurance program, the facility simply absorbs, or writes 

off, the cost.196 The method of calculating the co-payment can potentially penalize the IHS 

facilities, in that the rate is set “at 20% of the national hospital charge for the procedure, which is 

nearly always much higher than 20% of the payment rate, sometimes more than 50%.”197 The 

 

188 Regarding the Reauthorization of the Indian Health Care Improvement Act H.R. 2440 and S. 556 Title IV and 

Amendments to the Social Security Acts: Hearing Before the Senate Comm. on Indian Affairs, 108th Cong. (2003) 

(statement of Myra Munson, Sonosky, Chambers, Sachse, Miller & Munson, LLP). Furthermore, a 2002 agreement 

between CMS, IHS, and tribes exempted Indian health facilities from transitioning to a prospective payment system 

that would have eliminated this benefit. Shifting costs to accommodate a prospective payment system would have 

resulted in sizable cuts to health services for Native Americans. See Northwest Portland Area Indian Health Board, 

2004 Legislative Plan, Feb. 11, 2004, p. 8. 

189 IHS, Interrogatory Response 13. 

190 Ibid. 

191 Ibid. 

192 IHS, Interrogatory Response 16. 

193 Burgess interview; Newcombe interview. 

194 Regarding the Reauthorization of the Indian Health Care Improvement Act H.R. 2440 and S. 556 Title IV and 

Amendments to the Social Security Acts: Hearing Before the Senate Comm. on Indian Affairs, 108th Cong. (2003) 

(statement of Myra Munson, Sonosky, Chambers, Sachse, Miller & Munson, LLP). 

195 Burgess interview; Newcombe interview. 

196 MLI, “IA-00-165,” p. 2. 

197 Ibid. Additionally, the study recommended that CMS set limits on co-payments for IHS and tribal facilities; 

increase the wage index to allow higher payments at IHS facilities; and to provide an alternative reimbursement 

methodology similar to critical access facilities for the smaller IHS and tribal facilities—allowing higher 

reimbursement rates. Ibid. 
Staff Draft July 2004 117

difference is additional cost that must be written off for IHS facilities using that reimbursement 

methodology, reducing the amount available for the purchase of additional health services. 

Many of the remaining barriers to increased collection overlap with barriers to 

enrollment. For instance, the simplified reimbursement mechanism, adopted temporarily to 

postpone the high expense of advanced billing systems, has resulted in the reduction in the 

amount collected.198 In a similar light, the lack of training that leads to a failure to enroll all 

eligible Native Americans in public health insurance programs likewise leads to billing errors 

and inefficiencies.199 An administrator who does not know and is unable to determine which 

services are billable will inevitably neglect to bill for all covered procedures.200 As explained 

earlier, data on eligibility for enrollment in public insurance programs is incomplete. Without 

these data for comparison to collection figures it is difficult to estimate the extent of underbilling. 

In addition, collecting improper or incomplete documents, the failure to submit claims, 

and inadequate follow up on pending claims lead to a denial of benefits and necessarily fewer 

collections.201 Data problems, once again, make estimating the extent of this under-billing 

difficult at best. 

Conclusion 

The Commission finds that IHS funding levels are inadequate by every applicable 

standard of measurement and in every area of health service delivery within IHS. The lack of 

funding is, however, particularly acute for contract health services and urban Indian programs. 

Federal policy as expressed in numerous documents and declarations over the past 

century reflects congressional intent to maintain credibility and to fully fund health care for 

Native Americans. Nevertheless, Myra Munson reminded us, “the ultimate policy document is 

always the budget document.”202 Unfortunately, the budget has clearly failed to reflect the stated 

policy objectives of providing adequate health care and erasing disparities. As a result, the 

federal government has defaulted on its obligation and responsibility to Native Americans. 

Considering the degree of inadequacy, the length of time over which it has been recognized, and 

the obstinate refusal to take concrete action to remedy the situation, the only possible 

explanations are either discrimination or gross neglect on the part of the federal government. 

The Commission has also determined that the current regulatory framework needlessly 

restricts IHS officials from making minor modifications to IHS facilities and structures, forcing 

inadequate facilities to remain in an unsatisfactory condition while waiting for increased 

 

198 Dupree interview. Little to no data are available to evaluate this claim. Its basis is the pattern whereby Native 

Americans, who must travel long distances and sometimes bear difficult burdens to reach the care facility, tend to 

obtain many services on the same visit. For example, an individual might schedule a dental appointment, eye exam 

for the same visit originally planned for a diabetes follow-up. Regardless of the number of separate appointments 

provided on that visit the all-inclusive rate pays for one outpatient visit. 

199 Ibid. 

200 Ibid. 

201 Ibid. Dupree Testimony, Briefing Transcript, p. 213. 

202 Munson Testimony, Briefing Transcript, p. 214. 
Staff Draft July 2004 118

appropriations specifically designated for that facility. In addition, current regulations requiring 

residence within defined Contract Health Service Delivery Areas allow the denial of access to 

health care for many Native Americans living off reservation for the simple reason that they have 

exercised their right to live somewhere besides their home reservation. 

Therefore, the Commission recommends the following: 

• Congress should raise funding levels to reduce the national average FEHBP Disparity 

Index (FDI) from the current 52 percent to 80 percent. No federally funded program 

providing health care to Native Americans should be permitted to fall below an FDI of 60 

percent. In the long term, Congress should raise funding levels to establish an average 

FDI of 100 percent. 

• Congress, in all future IHS appropriations, should ensure that the IHS budget is adequate, 

independent of any consideration of increased third-party collections. In addition, 

Congress should include language in IHS appropriations specifically reaffirming that 

increases in third party collections are not considered in determining IHS funding levels. 

• Congress should establish a high-level investigative body to study changing Native 

American health care to an entitlement. This investigative body would also create a 

mechanism whereby the provision of health services to Native Americans by the federal 

government becomes mandatory and enforceable. 

• Congress should immediately appropriate special funds for contract health services to a 

level sufficient to eliminate the rationing of health services for Priority I patients. The 

IHS, in consultation with tribal representatives, should establish this funding level and all 

future IHS appropriations must be justified with reference to this new, higher figure. 

• Congress should immediately appropriate special funds for urban Indian programs to 

enable the establishment of programs capable of providing care at the level of reservation 

Indians. In more specific terms, the Commission recommends increasing appropriations 

by an amount equal to the per capita expenditures for current IHS users (as modified by 

the above recommendations) multiplied by the number of anticipated urban Indian 

program users. Future appropriations should be justified with reference to this new, 

higher figure. 

• Congress should establish a mechanism to ensure that contract support costs are fully 

funded on an annual basis. 

• Congress should enact legislation, similar to that in the proposed Indian Health Care 

Improvement Act, linking the 100 percent FMAP reimbursement to the individual 

patient, rather than the facility used. 

• Congress should establish a mechanism to ensure that future appropriations track with 

inflation. 

• Congress should consider indexing increases in IHS appropriations, so that, at a 

minimum, IHS program increases keep pace with increases in Medicaid and Medicare 

programs. 
Staff Draft July 2004 119

• IHS should investigate mechanisms to allow increased decision-making authority at the 

tribal, area, and service unit level, particularly with respect to minor facilities 

modifications. 

• IHS should update the unmet need methodology to reflect more recent data on enrollment 

in private and public insurance programs, particularly in light of the identified 

discrepancies with the 25 percent third-party recovery figure. 

• IHS should develop an improved public education and outreach program to establish 

eligibility and facilitate enrollment in public health insurance programs, in order to 

maximize collection from alternate sources. Any efforts should incorporate the best 

practices from tribal programs with significant increases in third-party collections, 

including one-to-one interaction and oral communication modes. 

• IHS should improve its existing internal staff training efforts on the administration of 

public health insurance programs. Participation in such programs should be mandatory 

and ongoing for all staff responsible for managing, supervising, or advising Native 

Americans on eligibility and enrollment in public health insurance programs, and those 

involved in IHS third-party collection efforts. 

• IHS should establish measurable goals and timelines for increasing enrollment in public 

health insurance programs. 

• IHS should evaluate the current data management system and evaluate options for 

implementing a modernized health data system. 

• IHS should study the impact of creating a mechanism that would enable appropriated 

funds to be spent on urban Indians, outside Title V programs. 

• IHS should evaluate its method for using historic cost data in its negotiation of allinclusive rates, with an eye towards using more current cost report data. Alternatively, 

IHS should develop a mechanism, whereby adjustments can be made to reflect actual cost 

rates at time of service. 

• IHS should evaluate the current IHCIF program, with an eye toward developing an 

alternative that can provide a more realistic approach to resolving inequities between the 

various tribal programs. 

• IHS should monitor the third-party recovery efforts of individual IHS facilities and take 

corrective action to raise collections in delinquent programs. 

• CMS and IHS should evaluate the current Medicare/Medicaid reimbursement 

mechanisms available to Native Americans, with an eye toward establishing a program, 

combining elements of the QIHP and critical access facility programs proposed in the 

IHCIA and interagency agreements, that will enable full and adequate recovery, while 

operating within the confines of the present and anticipated IHS data systems. 
Staff Draft July 2004 120

• CMS should encourage state Medicaid programs to participate in the Medicaid 

Administrative Matching program, particularly with regard to Native American 

programs. 

• CMS should encourage state Medicaid programs to provide state representatives in IHS 

and tribal facilities, utilizing the Medicaid Administrative Matching program, where 

applicable. If necessary, CMS should incorporate additional incentives. 

• CMS should consider modifying its six-month re-determination requirement for 

Medicaid and SCHIP eligibility. 

• CMS should re-evaluate its decision with respect to Native American waivers in state 

operated CMS programs, in light of the unique political status of Native Americans. CMS 

should encourage state Medicaid programs to establish waivers similar in effect to the 

100 percent FMAP program. 

• CMS should evaluate the feasibility of providing equitable relief for those elderly Native 

Americans who fail, as a result of federal programs and policies, to qualify for Medicare 

under the 40 qualifying quarter requirement. Specifically, equitable relief should establish 

enrollment eligibility for those Native Americans who otherwise fail to qualify for 

Medicare as a result of government policies. This equitable relief could be similar in form 

to that provided to those Native Americans who failed to enroll in Medicare as a result of 

faulty enrollment guidance. In those circumstances, relief has been provided by granting 

waivers from the surcharge for late enrollment in Medicare Part B. 

• CMS should conduct an evaluation of the sufficiency of federal regulations governing 

administration of Medicaid and Medicare programs by IHS and tribal facilities, to ensure 

that administrative guidance is consistent and fully developed. 
Staff Draft July 2004 121

Chapter 5: Proposed Legislative Changes Affecting Native American Health Care

IHS officials have explored new and innovative ways to extend resources and address the 

causes of existing disparities in the health status and outcomes for Native Americans. This is a 

collaborative effort. At times, change originates within the agency and at other times it comes 

through tribal consultation or other means. Inevitably, all branches of the federal government 

influence both long-term and day-to-day IHS operations. Seemingly minor changes trickle down 

with enormous impact. This chapter will address proposed legislative changes to the current 

system, including points of contention. 

Legislative Changes 

This section on legislative change will identify and address federal legislation with the 

potential to significantly affect the delivery of health services to Native Americans and current 

disparities in health status and outcomes. Significant legislative initiatives include the 

reauthorization of the Indian Health Care Improvement Act (IHCIA), the Closing the Health 

Care Gap Act of 2004, the Health Care Equality and Accountability Act, and the Tribal Contract 

Support Costs Technical Amendments of 2004.1

Reauthorization of the Indian Health Care Improvement Act 

Among the pending changes identified thus far, the reauthorization of the Indian Health 

Care Improvement Act appears to hold the most promise for improving the lives of Native 

Americans. The proposal for reauthorization of the IHCIA is a tribally prepared, far-reaching 

proposal for addressing every aspect of providing medical care to Native Americans. Tribal 

leaders initiated the proposed legislation and the final version is the product of years of 

consultation between tribal leaders and federal government representatives. 

Anticipating the expiration of the IHCIA, IHS organized regional consultation meetings 

with tribal leaders in 1998 to solicit input on changes to the act.2

 Based on the outcome of the 

regional consultation meetings, the tribes formed a National Steering Committee (NSC) of tribal 

leaders to draft a comprehensive proposal that would address a range of health care concerns 

 

1

 In the early stages of this report, a variety of Medicare proposals were discussed for inclusion in this section. 

Subsequently, President Bush signed into law the Medicare Prescription Drug, Improvement, and Modernization 

Act of 2003. According to IHS Director Dr. Charles Grim, several items will be particularly important to Native 

Americans, including a provision to increase rural ambulance reimbursement rates; a provision to compensate IHS 

for providing emergency assistance to undocumented aliens; a provision to require Medicare hospitals to accept 

Medicare rates as payment in full from IHS users; an expansion of Medicare part B services in IHS facilities; and 

changes to Critical Access Hospital reimbursement rates. See Indian Health Service, “IHS Director Grim 

Congratulates Bipartisan Passage of Medicare Bill; ‘Bill Benefits All Americans and Has Specific Benefits for 

Indian Country,’ Director Says,” press release, Dec. 9, 2003, p. 1. 

2

 Indian Health Service, “Overview of Consultation Process,” <http://www.ihs.gov/AdminMngrResources/reauthor/ 

Our_Initiative.cfm> (last accessed Dec. 19, 2003). 
Staff Draft July 2004 122

using the reauthorization of IHCIA.3 The NSC specifically sought to make IHCIA more 

responsive to current real-world needs, to increase opportunities for attracting more revenue into 

the health system, and to facilitate greater exercise of self-determination in health care program 

decision-making and regulations.4

 

There is no single change in the reauthorization of the IHCIA that will close the health 

status gap for Native Americans. Instead, the House and Senate bills, as proposed, attempt to 

address many of the problems contributing to the health disparities experienced by Native 

Americans by including provisions aimed at increasing access to appropriate health facilities; 

increasing access to and enrollment in health insurance programs; increasing federal funding; 

improving the quality of care; decreasing poverty; and increasing the level of educational 

attainment for Native Americans. 

The reauthorization of the IHCIA attempts to accomplish these tasks through a series of 

procedural changes to the established system and the adoption of seven health care objectives as 

identified by the National Indian Health Board: 

1. Health Objectives. Adopts the policy, for the first time, that the objectives for health 

improvements must be the same for American Indians and Alaska Natives as for all other 

Americans. 

2. Self-Determination & Self-Governance. Updates the Act to recognize that since 1992, 

more than half of the IHS programs are now being operated by Tribes and Tribal 

Organizations. 

3. Continuum of Care. Provides authorization for a full range of health programs, rather 

than relying on “demonstration projects,” so that IHS, Tribes and Urban Indian 

Organizations can take advantage of opportunities and set priorities that specifically 

respond to the needs of the local population. 

4. Home and Community-Based Care. Updates the Act to focus on “programs” instead of 

“facilities” in recognition that nationally the length of stay in hospitals has decreased in 

favor of other care models. 

5. Facility Funding Flexibility. Authorizes more flexible funding alternatives and interagency funding partnerships to help reduce the backlog in facility construction and 

maintenance. 

6. Behavioral Health. Authorizes integration of mental health, substance abuse & violence 

programs into a behavioral health program to provide more efficient and higher quality 

care. 

 

3

 Ibid. Tribal representatives include one tribal member from each of the IHS established areas, one self-governance 

representative, and one urban representative. See National Indian Health Board, “NSC Member List,” <http://www. 

nihb.org/docs/nsc_member_list.doc> (last accessed Apr. 7, 2004). 

4

 Carol Barbero, partner, Hobbs, Straus, Dean & Walker, interview in Washington, DC, Aug. 11, 2003; Myra 

Munson, Sonosky, Chambers, Sachse, Miller & Munson, LLP, interview in Washington, DC, Aug. 11, 2003. 
Staff Draft July 2004 123

7. Access to Medicare and Medicaid. Expands access to recovery from Medicare and 

Medicaid through amendments to the IHCIA and the Social Security Act and provides for 

a study of reimbursement.5

To accomplish these objectives the reauthorization of IHCIA is organized into eight 

titles. The first three of the titles cover manpower, services, and facilities, respectively. The 

fourth title, access to health services, addresses access by way of public insurance programs. 

Urban Indian programs are administered separately under Title V. Structural changes are 

implemented through the title on organizational improvements. The relatively new change in 

focus to behavioral health is formalized in Title VII, followed by the catchall title for 

miscellaneous items. 

Each of these titles will be explained in detail below, including how individual provisions 

in each title will improve the health status of, or the service provided to, Native Americans. The 

IHCIA is an extensive piece of legislation, addressing the affordability, availability, accessibility, 

and acceptability of health care. Only the major provisions, having a significant impact on 

improving the health status of Native Americans, are explained. 

Title I: Indian Health Manpower. The changes in Title I primarily address the 

scholarship programs for health professionals. By broadening the health disciplines open to 

scholarships, decentralizing the decision-making process, and encouraging scholarship recipients 

to serve the area from which they receive the scholarships the tribes will begin to address the 

problems with recruiting and retention in isolated areas, while obtaining the services of more 

culturally proficient health care providers.6 In addition, provisions also eliminate current 

demonstration projects, contingent upon the establishment of permanent funding sources for 

scholarship programs.7 

Title II: Health Services. The changes in title II, in broad terms, aim to improve the 

quality of health service programs providing care to Native Americans. Improvement will be 

accomplished by institutionalizing the national diabetes program that is currently funded by 

special appropriations;8

 by decentralizing control of the Catastrophic Health Emergency Fund to 

the area level; expanding preventive services to cover all cancers instead of limiting coverage to 

mammography screening for breast cancer; by establishing epidemiology centers in all 12 areas; 

by requiring staff in tribally operated facilities to meet the same licensing requirements as IHS 

facilities; by strengthening the prohibition against contract health service providers holding 

 

5

 National Indian Health Board, “Reasons To Support the Indian Health Care Improvement Act H.R. 2400 and S. 

556,” <http://www.nihb.org/docs/ihcia_reasons_to_support.pdf> (last accessed Dec. 19, 2003). 6 Indian Health Care Improvement Act Reauthorization Amendments of 2004: Hearing on H.R. 2440 before the 

House Resources Committee, 108th Cong. (2003) (testimony of Joe Shirley, president, Navajo Nation) (hereafter 

cited as Shirley House Testimony); Reauthorization of the Indian Health Care Improvement Act: Hearing on S. 212 

and H.R. 2440 before the Senate Committee on Indian Affairs and the House Resources Committee, 107th Cong. 

(2003) (testimony of Rachel A. Joseph, co-chair National Steering Committee) (hereafter cited as Joseph Joint 

Testimony). 

7

 Joseph Joint Testimony. 

8 Indian Health Care Improvement Act Reauthorization of 2000: Hearing on S. 2526 before the Senate Committee 

on Indian Affairs, 106th Cong. (2000) (testimony of John J. Callahan, Assistant Secretary for Management and 

Budget, HHS) (hereafter cited as Callahan Senate Testimony). 
Staff Draft July 2004 124

individual patients responsible for payment for contract health services obligations;9 by 

establishing a program to monitor nuclear and environmental health hazards; and by designating 

the entire state of Arizona as a Contract Health Service Delivery Area.10

Title III: Health Facilities. As a starting point, title III will institutionalize tribal 

consultation for facilities expenditures. This change will ensure that facilities decisions 

accurately reflect the needs and priorities of the affected populations.11 In addition, the 

consultation will result in a priority system that encompasses all facilities not just a “top 10.” 

This change ensures that a true and complete spectrum of unmet need in Indian Country is 

presented.12 Concerning accreditation, this section will authorize accreditation under any 

nationally recognized accrediting authority. Doing so will expand the ability of smaller facilities 

to meet eligibility requirements for public insurance programs, increasing the funding available 

to purchase additional health care for Native Americans.13 Several of the other changes involve 

the creation of more flexible funding options. These include the creation of IHS-tribal joint 

ventures; allowing for innovative financing by tribes, coupled with an IHS commitment to 

equipment and staffing; the creation of a Health Care Facilities Loan Fund; and express 

permission to use any “other source” of funds for tribal services to provide health care. A 

provision is included to ensure that the use of other sources by tribes will not jeopardize their 

positions on the priority list for future construction projects.14 These flexible funding options 

have the potential to significantly increase the operating funds available to tribally operated 

facilities and will serve as a multiplier for federal funding. 

Title IV: Access to Health Services. Title IV attempts to eliminate the barriers that 

prevent Native Americans from accessing public health insurance programs. By eliminating 

these barriers, reimbursement from third parties is increased and additional funding made 

available to purchase health care for Native Americans, who otherwise might not receive care. 

Specific provisions eliminate barriers by amending the Social Security Act to authorize 

reimbursement to IHS facilities for all services for which Medicare/Medicaid programs pay; 

creating Qualified Indian Health Programs; creating a waiver of Medicare’s late enrollment fee 

for Native Americans; extending 100 percent FMAP to all health services provided to Native 

Americans;15 allowing tribal facilities to deal directly with HHS on Child Health Insurance 

Program issues; allowing for the waiver of all cost sharing by IHS eligible patients enrolled in 

public insurance programs; preventing the mandatory enrollment of Native Americans in 

managed care programs as a precondition to enrollment in public insurance programs; and 

 

9

 Joseph Joint Testimony. 

10 Shirley House Testimony. 

11 Ibid. 

12 Joseph Joint Testimony. 

13 Ibid. Callahan Senate Testimony. 

14 Joseph Joint Testimony. 

15 Qualified Indian Health Programs, 100 percent FMAP, and Medicare’s late enrollment waiver are discussed in 

detail later in this chapter. 
Staff Draft July 2004 125

establishing a demonstration project for the direct billing of Medicare/Medicaid by tribally 

operated facilities.16 

Title V: Health Services for Urban Indians. As the label suggests, Title V contains most 

of the provisions regarding urban Indians. It attempts to raise the health status of urban Indians 

by requiring HHS agencies to consult with urban Indians before taking action that would affect 

them; by expanding HHS authority to fund urban Indian programs through grants, loans, and 

loan guarantees; and by enabling urban Indians to enjoy the protection of malpractice coverage 

under the Federal Tort Claims Act.17 In addition, this title makes permanent the Oklahoma 

Demonstration Projects in Tulsa and Oklahoma City. These demonstration projects are urban 

Indian clinics that have been funded through the more reliable Hospitals and Clinics account.18

Title VI: Organizational Improvements. The major provision of Title VI is the elevation 

of the director of IHS to an assistant secretary in HHS. This elevation would “provide a stronger 

coordination and advocacy role in budget and policy matters related to Indian health,” for the 

director, with a corresponding effect on the stature of the IHS program.19 Presumably, this would 

result in changes in HHS policy and procedure that benefit IHS and raise the health status of 

Native Americans. 

Title VII: Behavioral Health Programs. Title VII’s primary focus is to establish a 

“continuum of care.” Specifically, it establishes a “seamless and comprehensive treatment model 

for behavioral health that is inclusive of substance abuse and mental health disorders.”20

Combining the various behavioral health issues in one system will allow for more effective 

assessment and treatment in a holistic manner in one facility, limiting referral of individual 

patients to several agencies or facilities to address unified conditions.21 In addition, this title 

provides for the establishment of at least one in-patient mental health facility for each IHS area, a 

significant expansion of current mental health treatment capacity.22 

Title VIII: Miscellaneous. This final title contains an assortment of minor provisions. Its 

most significant provision provides for the establishment of a National Bipartisan Indian Health 

Care Entitlement Commission. This provision implicitly recognizes that several issues preclude 

transforming health care for Native Americans into an entitlement during this reauthorization.23

 

16 Joseph Joint Testimony. This section includes the establishment of Navajo Nation Medicaid Agency. Currently, 

with the Navajo Nation crossing three state borders, tribally operated facilities have three sets of rules. This change 

will allow the Navajo Nation to deal directly with Medicaid under its own set of rules. See Shirley House 

Testimony. 

17 Joseph Joint Testimony. 

18 Indian Health Care Improvement Act: Hearing before the Senate Committee on Indian Affairs and the House 

Resources Committee, 107th Cong. (2003) (testimony of Everett R. Rhoades, vice president, Central Oklahoma 

American Indian Health Council). There are currently two major issues unresolved with this section of the IHCIA. 

The first issue is whether these projects are subject to tribal control. The second issue is whether these facilities are 

operating units or service units, which determines whether they are subject to allocations from the service unit or 

from the IHS. See ibid., pp. 4, 8. 

19 Callahan Senate Testimony. 

20 Shirley House Testimony. 

21 Ibid. 

22 Joseph Joint Testimony. 

23 Ibid. 
Staff Draft July 2004 126

The purpose of the bipartisan commission is to resolve those issues and make lasting 

improvements to the manner in which health care for Native Americans is funded. 

As mentioned above, the proposed reauthorization of IHCIA recognizes that many, and in 

some areas most, tribes have assumed responsibility for administrating their own health 

programs under contracts and compacts.24 While tribes rely on government funding, the reliance 

is to varying degrees. Many tribes have found it necessary to access tribal money, charitable 

grants, and other funding sources. The new bill will allow for additional and more flexible 

funding options, as explained above.25 In addition to these options, the reauthorization will 

produce gains in direct funding for health care. Specifically, the improvements identified above 

would generate at least an additional $6.9 billion for direct spending on Native American health 

care over the next 10 years.26

Reauthorization of the IHCIA will not be automatic. Its recent history predicts some 

resistance. The most recent version of the Indian Health Care Improvement Act was passed in 

1992 and authorized through FY 2000; Congress extended it through FY 2001.27 In October 

1999, the NSC delivered its first proposal for modifications to the IHCIA to the President and 

Congress.28 The IHCIA reauthorization bills introduced in both the 106th and 107th sessions of 

Congress adopted most of the changes proposed by the steering committee.29 While hearings 

were held on the Senate bill, neither of the Senate bills ever reached the floor. In September 

2002, the administration voiced reservations on the costs associated with the mandatory spending 

provisions of the Senate bill.30 To address the cost concerns expressed by the administration, the 

NSC and members of the House began negotiations to revise the draft bill. 

Despite the fact that negotiations to modify the Senate bill were underway in the House, 

Senator Ben Nighthorse Campbell introduced Senate bill 556 in March 2003.31 Subsequently, the 

 

24 Today, tribes administer more than half of IHS funding through self-determination contracts or self-governance 

compacts. There are 61 self-governance tribal compacts and 81 funding agreements representing 285 tribes. See 

Tribal Self-Governance Amendments of 1998: Hearing on H.R. 1833 before the Senate Indian Affairs Committee, 

105th Cong. (1998) (testimony of Luana Reyes, director of headquarters operations, Indian Health Service, U.S. 

Department of Health and Human Services). See also the detailed discussion in Chapter 3.

25 One example of a “flexible funding option” is allowing tribes to use private credit sources to finance construction 

of health facilities, yet allowing the CBO to score the expense as an operating lease when the facility is leased from 

the tribes to IHS. See Joseph Joint Testimony. 

26 Congressional Budget Office, Preliminary CBO Estimate of the Effects on Mandatory Spending of S. 212, the 

Indian Health Care Improvement Act Reauthorization of 2001, Mar. 30, 2001. See also Munson interview. 

27 Efforts to reauthorize the IHCIA before the bill’s sunset date were hampered by, among other things, Congress’ 

focus on other matters, primarily Homeland Security. 

28 The structure of the IHCIA has been retained in the various reauthorization bills introduced to Congress with new 

and revised language inserted in all eight titles. 

29 S. 212, 107th Congress (2001)—A bill to amend the Indian Health Care Improvement Act to revise and extend 

such Act; S. 2526, 106th Congress (2000)—A bill to amend the Indian Health Care Improvement Act to revise and 

extend such Act. 

30 In March 2001, the Congressional Budget Office (CBO) estimated the federal budget impact of the mandatory 

spending parts of the Senate bill, S. 212. CBO estimated these would cost $6.9 billion over 10 years. Munson 

interview. 

31 S. 556, 108th Cong. (2003)—Indian Health Care Improvement Act Reauthorization of 2003. 
Staff Draft July 2004 127

Senate Indian Affairs Committee conducted hearings, even though Senate bill 556 was identical 

to the earlier bills objected to by the administration. 

In June 2003, a bill containing the revisions negotiated by the NSC and members of the 

House to address the concerns of the Bush administration was introduced by Representative Don 

Young.32 Unlike the Senate bill, the House bill does not include three particularly noteworthy 

provisions: 

• The Qualified Indian Health Program (QIHP). 

• The exemptions from late enrollment penalty under Medicare Part B for Native 

Americans. 

• The proposed 100 percent Federal Medical Assistance Percentage (FMAP) for Medicaid 

eligible Native Americans treated at facilities other than tribal or IHS facilities. 

The QIHP would have established a new category of provider, eligible for full-cost 

reimbursement under Medicare, Medicaid, and the Child Health Insurance Program. Under 

current cost recovery procedures, many programs providing services to Native Americans utilize 

the all-inclusive rate.33 The QIHP would have been able to select from several payment options, 

including the full-cost recovery method, which would also allow recovery for indirect costs.34

The QIHP would have also expanded the list of covered services to include “preventive primary 

care; SCHIP services; various immunizations; patient transportation; and, services performed by 

an employee licensed/certified to perform such services that would be reimbursable if performed 

by a physician.”35 Finally, the provision would have allowed IHS, tribes, and urban Indian 

programs to qualify for QIHP designation.36 The Congressional Budget Office estimates a 10-

year benefit of $2.2 billion if the QIHP provision is implemented.37 That $2.2 billion would 

represent additional funding available for use by tribal programs in providing health care to 

Native Americans. 

 

32 Indian Health Care Improvement Act Amendments of 2003, H.R. 2440, 108th Cong. (2003). 

33 Joseph Joint Testimony. See also the discussion in Chapter 4 on the “all-inclusive rate.” 34 Joseph Joint Testimony. 

35 Ibid. 

36 In addition to financial concerns, the provision was dropped because HHS claimed that the provision was 

extremely complex and not feasible to administer. Specifically, the QIHP would: 

require the Federal government to complete a series of complex payment computations for each 

ITU provider, for each payment period, (including rates and adjustments not available to any other 

provider) to identify the provider type for each that yields the highest payment amount for that 

period. However, such computations could only be made after services are provided, when it is too 

late for providers to have known or complied with the differing conditions of participation 

applicable to differing provider types. 

See U.S. Department of Health and Human Services, Indian Health Service, Response to the Commission’s 

Interrogatory 26, April 2004 (hereafter cited as IHS, Interrogatory Response). See also U.S. Department of Health 

and Human Services, Centers for Medicare and Medicaid Services, Response to the Commission’s Interrogatory 7, 

June 2004 (hereafter cited as CMS, Interrogatory Response). 

37 Congressional Budget Office, Preliminary CBO Estimate of the Effects on Mandatory Spending of S. 212, the 

Indian Health Care Improvement Act Reauthorization of 2001, Mar. 30, 2001. See also Munson interview. 
Staff Draft July 2004 128

The provision excluding Native Americans from paying a late enrollment penalty for 

Medicare Part B was designed to prevent the elderly from delaying enrollment in Medicare until 

they become ill.38 As discussed in Chapter 4, the absence of relevant data, as well as the 

ineligibility due to lack of qualifying quarters, makes it difficult to estimate how widespread the 

problem is with under-enrollment in Medicare. Nevertheless, to the extent that Native Americans 

are under-enrolled in Medicare, a significant source of funding is neglected, with a consequent 

reduction in the availability of health services that funding would provide for uninsured Native 

Americans. Although few tribal leaders interviewed had solid numbers on the benefits of this 

provision, one principle was clear: as the ability of the tribes to persuade their elderly members 

to join increases through compacting, the ability to grant a waiver to those exposed to Medicare 

for the first time will significantly enhance third-party recovery.39 

Finally, the House bill deleted the provision that assigned the 100 percent Federal 

Medical Assistance Percentage (FMAP) to services provided to Medicaid-eligible Native 

Americans referred by IHS or tribal programs to outside providers through the Contract Health 

Services program. Under current law, 100 percent FMAP reimbursement for treatment applies 

only to services provided to Native Americans directly by an IHS or tribal facility.40 When 

Native Americans are treated in non-IHS facilities, states are only reimbursed at the standard 

rate. Consequently, states are required to pay as much as 50 percent of the cost of providing 

health care to Native Americans in non-IHS facilities. Without that full reimbursement 

accompanying 100 percent FMAP status the states have no incentive to enroll Native Americans 

in Medicaid, fewer Native Americans are enrolled, and less money is available to purchase 

additional health services. In addition, if receiving 100 percent reimbursement, the economic 

pressures on the individual state providing services is lessened, with a corresponding lessening of 

pressure to reduce benefits for all patients. 

These three provisions were ultimately dropped because of costs and IHS concerns about 

the difficulty of implementation. Most importantly, the Congressional Budget Office estimated 

these programs would be too costly. Over the 10-year period from 2002 to 2011, it was estimated 

that the QIHP provision would cost $2.2 billion, the Medicare exemption would cost $545 

million, and the FMAP provision would cost $2.3 billion.41 In addition to the estimated higher 

costs, IHS complained that the changes to the QIHP provider type would introduce significant 

complications to the operation and structure of the payment systems, and that 100 percent FMAP 

would substantially increase program and administrative costs while not guaranteeing an 

 

38 IHS, Interrogatory Response 27. See also Barbero interview; Munson interview (HHS objected to this provision 

because it would treat Native Americans differently from other Medicare-eligible persons who are penalized 

because they do not timely enroll). HHS refers to the desired change as enabling adverse selection, where patients 

delay until they are ill with costly health conditions before enrolling. Because of the obvious negative financial 

consequences, HHS objects. See CMS, Interrogatory Response 8. 

39 Allan Burgess, tribal health administrator, Owyhee Community Health Facility, telephone interview, May 12, 

2004. HHS maintains that as enrollment increases this problem will eventually fade. See CMS, Interrogatory 

Response 8. 

40 Barbero interview; Munson interview (in addition to the cost factor, this provision was dropped because the states, 

not Native American health programs, gained the financial advantage). 

41 Congressional Budget Office, Preliminary CBO Estimate of the Effects on Mandatory Spending of S. 212, the 

Indian Health Care Improvement Act Reauthorization of 2001, Mar. 30, 2001. See also Munson interview. 
Staff Draft July 2004 129

increase in actual services.42 The Commission finds the latter explanation unconvincing. 

Certainly, administrative expenses would not consume the entire $2.3 billion. IHS recognized 

this implicitly in explaining that the adoption of the 100 percent FMAP provision would “shift 

all, rather than part of the costs for existing services from the state to the federal budget.”43 This 

shift represents an influx of funds available to provide additional health services for Native 

Americans that otherwise would not have been provided. 

With or without the three redacted provisions, the IHCIA would be a dramatic step 

forward in the effort to erase current disparities. If passed, the IHCIA would enable significant 

improvement in the health care provided to Native Americans. If passed in the Senate version, as 

originally proposed by the NSC, it would accomplish far more. For pragmatic reasons, the 

IHCIA National Steering Committee has reached a consensus that members should support 

passage of H.R. 2440 in its current form.44 Losing the three provisions identified above would be 

a small price to pay for the many significant gains provided by passage of the remaining 

provisions. 

Passage in either form is not guaranteed, nor is the timing. If passage is to occur this year, 

“the expectation is that [it] will be passed this summer, before the fall presidential and 

congressional election activities get in full swing.”45 Meanwhile, the tribes must continue to wait. 

Fortunately, the IHCIA is not the only legislative effort with the potential to improve health care 

for Native Americans. We turn now to the other proposals. 

Other Proposed Legislation Relevant to Native Americans 

The regular reporting of Native American health disparities is one method of highlighting 

the health problems plaguing Native Americans and encouraging a more rapid response from 

lawmakers responsible for ensuring Native Americans are provided the health care they were 

promised. A series of reports and publications by various governmental and nongovernmental 

organizations have engaged in that effort. Most recently, the publication of Unequal Treatment: 

Confronting Racial and Ethnic Disparities in Health Care by the Institute of Medicine 

documented the overwhelming health disparities between people of color and whites and spurred 

Congress to engage the issue of health disparities.46 As a first step, Congress commissioned the 

Government Accounting Office to identify approaches for eliminating the identified disparities 

and report their findings.47 In the aftermath of the GAO report, Congress introduced two similar 

 

42 See Reauthorization of the Indian Health Care Improvement Act: Hearing on S. 556 before the Senate Committee 

on Indian Affairs, 107th Cong. (2003) (testimony of Dr. Charles W. Grim, director, IHS). See also CMS, 

Interrogatory Response 9. 

43 See U.S. Department of Health and Human Services, Indian Health Service, Response to the Commission’s 

Interrogatory 11, June 2004. 

44 Northwest Portland Area Indian Health Board, 2004 Legislative Plan, Feb. 11, 2004, p. 4. See also IHS, 

Interrogatory Response 26, 27, and 28. 

45 Dr. Charles W. Grim, “An Indian Health Update” (speech before the Midwest Alliance of Sovereign Tribes 

Impact Week Meeting, Mar. 22, 2004). 

46 Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (National 

Academies Press, Washington, DC, 2002), p. 19 (hereafter cited as IOM, Unequal Treatment). 

47 United States Government Accounting Office, Health Care: Approaches to Address Racial and Ethnic 

Disparities, GAO-03-862R, cover letter, July 8, 2003, <http://www.gao.gov/new.items/d03862r.pdf> (last accessed 
Staff Draft July 2004 130

acts of legislation, the Closing the Health Care Gap Act of 2004 and the Health Care Equality 

and Accountability Act, hereafter referred to as the Frist bill and the Daschle bill, respectively.48

The primary difference between the two is that the Daschle bill focuses on ethnic minority 

populations, whereas the Frist bill expands disparities to include all populations subject to 

disparity.49 In addition, the Daschle bill seeks to expand health insurance coverage, in contrast to 

the Frist bill, which seeks to expand awareness of programs already in place.50

Closing the Health Care Gap Act of 2004 

The Closing the Health Care Gap Act of 200451 was introduced as “the next bold and 

necessary step to reduce and eliminate health disparities.”52 This legislation would address five 

key elements: 

• Expanded access to quality health care. 

• Strong national leadership, cooperation and coordination. 

• Professional education, awareness and training. 

• Enhanced research. 

• Clinical disease prevention and management services.53 

As part of the access element, the bill would establish a health care access grant program, 

and broaden and expand outreach programs. These outreach programs would increase enrollment 

in public insurance programs and target and reduce behavioral risk factors.54 Perhaps most 

importantly, the new programs would create programs to drastically reduce the number of 

uninsured. To the extent this increases the enrollment of Native Americans in public health 

insurance programs, it would increase the number of health services provided to Native 

Americans by increasing third-party collections and making more money available to the 

individual health programs. This element’s inclusion of prevention programs parallels recent IHS 

efforts and elements of the IHCIA in elevating the role prevention plays in raising the health 

status of Native Americans. 

The second element, national leadership, focuses on the HHS Office of Minority Health 

and would expand its mission and authority.55 Specifically, the Office of Minority Health would 

 Feb. 9, 2004). Although specific disparities in the health status of Native Americans are identified in the report, the 

recommendations apply to minorities across the board. 

48 Closing the Health Care Gap Act of 2004, S. 2091, 108th Cong. (2004); Health Care Equality and Accountability 

Act of 2003, S. 1833 and H.R. 3459, 108th Cong. (2004). 

49 Marsha Lillie-Blanton, Kaiser Family Foundation, “Ask the Experts: Racial and Ethnic Disparities” (transcript of 

teleconference of Apr. 5, 2004) p. 30. 

50 Ibid. 

51 Closing the Health Care Gap Act of 2004, S. 2091, 108th Cong. (2004). 

52 “Legislative Summary for the Closing the Health Care Gap Act of 2003,” <http://www.allhealth.org/recent/ 

audio_10-10-03/FristBillSummary.doc> (last accessed Mar. 2, 2004). 

53 Ibid. 

54 Ibid. 

55 Ibid. 
Staff Draft July 2004 131

establish new goals for addressing health care disparities, coordinate data collection and 

assessment of disparities, and work with other agencies to “maximize program resources 

available to reduce and eliminate disparities.”56 Whether this element will improve the health 

status of Native Americans and whether it will improve the quality or quantity of health services 

provided will depend on its implementation. The latter portion of this chapter discusses the One 

Department Initiative, where resources are similarly consolidated for efficiency purposes. That 

analysis will demonstrate that Native Americans can, in certain respects, gain when resources are 

combined. More specifically, when money previously spent on administration is subsequently 

available for health services—including health services for Native Americans—Native 

Americans will gain. However, if the elimination of administrative resources results in the 

deterioration of important system characteristics uniquely beneficial to Native Americans, then 

consolidation can reduce the quality of care provided to Native Americans. 

 The professional education element, the third element, would expand existing programs 

to increase the number of minorities in the health professions. It would also establish a 

demonstration project to test model criteria for cultural competence, while also identifying 

barriers to culturally appropriate care.57 To the extent that this element is able to increase the 

number of Native American health care providers, it will be successful in raising the standard of 

care by improving cultural competence and reducing problems associated with recruiting and 

retention. 

The enhanced research element would sponsor additional research to assess intervention 

strategies and to examine the ethical issues associated with health care disparities.58 This element 

will prove successful to the extent that the body of knowledge gained through its efforts is 

implemented into the programs directly serving Native Americans. 

The final element of this legislation would establish special programs, perhaps modeled 

after the successful Native American diabetes programs, to improve services in targeted areas 

disproportionately affecting minority populations, including “cancer, asthma, obesity, 

cardiovascular disease, HIV/AIDS and infant mortality.”59 As the Native American population is 

disproportionately affected by these indicators of health status, the implementation of this 

element will raise the health status of Native Americans, so long as tribal and IHS facilities are 

included among those programs benefited by this element. 

For all of the identified elements above, one risk to Native American programs is that 

new programs will be created without the accompanying appropriated funding. To the extent that 

funding for these programs must come from the current IHS budget, in effect reducing funding 

for Native Americans by dividing funding among a larger group, this legislation would represent 

a threat to the health status of Native Americans. In that sense, this bill would “soft-pedal the 

racial dimension of unequal medical treatment and create a dangerous precedent for health 

 

56 Ibid. 

57 Ibid. 

58 Ibid. 

59 Ibid. 
Staff Draft July 2004 132

policy.”60 It is essential that Congress provide the funding to support all requirements mandated 

by this legislation. 

The tribes have had little time to analyze the provisions of the Frist bill, and less to 

consult and prepare a formal response.61 Accordingly, no tribal opinions were obtained with 

regard to either the Frist bill or the Daschle bill. Nevertheless, it is certain that any loss of 

funding would be a primary concern with passage of any health care legislation. In addition, 

tribal consultation has become an expected part of the process with regard to legislation affecting 

Native Americans. Any attempt to divorce tribal leaders from the legislative process would likely 

encounter similar resistance. To the extent that its provisions parallel those from the Indian 

Health Care Improvement Act, the consultation concerns could be alleviated. As previously 

explained, elements of the Frist bill are written to address disparities for all “disparity 

populations,” not merely an identified minority group. By illustrating the comparable problems 

faced by the various minority groups, the provisions of the Closing the Health Care Gap Act do 

indeed parallel at least some of the provisions of the Indian Health Care Improvement Act. In a 

similar manner, the next bill, the Health Care Equality and Accountability Act, also draws 

parallels with the Indian Health Care Improvement Act. 

Health Care Equality and Accountability Act 

The Health Care Equality and Accountability Act is another broadly worded bill designed 

to reduce disparity for all people of color.62 Of particular note is a provision specifically 

addressing funding for Native American health care, in addition to many provisions paralleling 

those in the Closing the Health Care Gap Act. 

Title I, subtitle D, of the act addresses Indian health care funding and provides for an 

immediate and dramatic increase in funding.63 It also details the mechanism for calculating 

future increases in light of population growth and inflation. One very controversial aspect makes 

the funding an entitlement, by removing it from the appropriations process.64 Other provisions 

specifically targeting improved health care for Native Americans include: 

• Provision of health promotion and disease prevention services. 

• Monitoring by the Federal government of environmental and nuclear health hazards and 

provision of appropriate medical care. 

• Implementation of a 10-year funding plan to provide a safe water supply, sanitary 

sewage, and solid waste disposal facilities. 

• Development of a comprehensive behavioral health prevention and treatment program.65 

 

60 American Health Line, Health Disparities: Frist Bill Would Emphasize Poverty Factor, Mar. 30, 2004. 61 Chris Walker, executive director, Cherokee Health Services, interview in Washington, DC, Apr. 23, 2004. 

62 Health Care Equality and Accountability Act of 2003, S. 1833 and H.R. 3459, 108th Cong. (2004). 63 Id. § 141. 

64 Id.

65 Office of Rep. Donna Christensen, “Detailed Summary of the Health Care Equality and Accountability Act of 

2003” (provided by fax, Oct. 23, 2003). 
Staff Draft July 2004 133

In addition, the act would include requirements for enhanced racial, ethnic, and primary 

language data collection, analysis, and reporting from every health-related program receiving 

federal funds from the Department of Health and Human Services—to increase accountability 

and to strengthen the safety net of public insurance programs.66 In addition to a national data 

program, the legislation authorizes the establishment of more epidemiology centers, designated 

specifically to serve the Indian health programs.67 

Passage of this legislation would accomplish many of the same objectives identified for 

the IHCIA, and more. Namely, it would raise the funding levels to the point where adequate care 

could feasibly be provided; it would provide for the data collection necessary to truly understand 

the problems affecting Native Americans and develop appropriate programs in response; and 

finally, it would bolster the two program types requiring additional attention in the evolving 

health care programs serving Native Americans—behavioral health and preventive services. 

Tribal Contract Support Costs Technical Amendments of 2004 

In the discussion of contract support costs (CSC) in Chapter 4, one concept should have 

been clear: CSC funding enables tribal programs operating under the Indian Self-Determination 

and Education Assistance Act to develop the necessary infrastructure for operating successful 

health care programs.68 Unfortunately, one overriding truth associated with contract support 

costs is that for many tribes, those costs have never been fully funded. The litigation initiated to 

recover unpaid contract support costs was described in Chapter 4. It is important to note here that 

subsequent to the years covered by the litigation described in Chapter 4 (1996–1997) Congress 

has included “capped” line item appropriations for contract support costs, effectively limiting 

annual contract support costs to the limited amounts requested by IHS in the annual budget 

process.69 It is that use of “caps” that makes new legislation necessary even if the Supreme Court 

rules in favor of the tribes.70 This next section will address legislation introduced to remedy the 

contract support costs underfunding in the future. 

On March 8 of this year, Senator Campbell introduced Senate bill 2172, the Tribal 

Contract Support Costs Technical Amendments of 2004.71 This legislation would change the 

current contract support costs funding authorization by removing the provision that makes 

funding subject to the availability of appropriations and inserting a clause that authorizes 

appropriations to cover any unpaid costs.72

 

66 Ibid. 

67 Ibid. 

68 See Chapter 4. See also Tribal Contract Support Cost Amendments of 2004: Hearing on S. 2172 before the Senate 

Committee on Indian Affairs, 108th Cong. (2004) (testimony of Charles W. Grim, director, Indian Health Service) 

(hereafter cited as Grim Senate Testimony on S. 2172). 

69 Tribal Contract Support Cost Amendments of 2004: Hearing on S. 2172 before the Senate Committee on Indian 

Affairs, 108th Cong. (2004) (testimony of Lloyd B. Miller, Sonosky, Chambers, Sachse, Miler & Munson, LLP). 

70 Ibid. 

71 Tribal Contract Support Costs Technical Amendments of 2004, S. 2172, 108th Cong. (2004). 

72 Id. § 3(e). 
Staff Draft July 2004 134

This legislation is a first step in addressing tribal concerns, but falls short in its “lack of 

clarity.”73 To the extent that the funds to be appropriated under the act may come from either the 

lump sum IHS appropriation or from supplemental appropriations it becomes an entitlement. 

Contract Support Costs will be paid. If the funds are distributed from the lump sum 

appropriation, presumably health services must be reduced elsewhere to cover the additional 

mandate. In doing so, it acts merely as a redistribution of resources, in favor of tribes 

participating in the tribal self-governance processes.74 Consequently, S.2172, as introduced, 

should be amended to provide the necessary clarification. 

Because failing to fully fund contract support costs represents a penalty to tribes choosing 

to participate in the tribal self-governance programs. Enacting appropriate legislation would be a 

significant step toward improving the health status of Native Americans by making more funding 

available for the purchase of health care services. Likewise, each of the acts discussed earlier has 

the potential for providing notable improvement over a wide range of issues affecting Native 

American health care, regardless of their relative differences. Some of the issues addressed by 

these bills, by their nature, require legislative action for effective change. For others, though 

legislative action would be preferred, administrative action at either the department or agency 

level would enhance the process. 

Conclusion 

That change will come over the next few years to the system providing health care to Native 

Americans is almost certain. The enthusiasm with which the current director has embraced the 

IHS mission, the general success of the continuing transition to tribal compacting and 

contracting, and the general sense that momentum in support of the IHCIA makes passage in 

some form highly likely all portend change. The Commission has found that most of this change 

propels IHS on the path to improved health status for Native Americans. Yet, among the 

proposed changes the Commission has found reason for caution. Therefore, the Commission 

makes the following recommendations concerning the Indian Health Care Improvement Act and 

other pending legislative proposals that would positively affect the health status and outcomes of 

Native Americans:

• Congress should make passage of the Indian Health Care Improvement Act a priority 

item on the legislative agenda. The most recent version of the IHCIA expired in 2001 and 

should be reauthorized. 

• Congress should include in the reauthorization legislation of the Indian Health Care 

Improvement Act the 100 percent FMAP provision and the waiver of the penalty for late 

payment of Medicare premiums provision. These provisions were previously deleted but 

are necessary to increase the enrollment of Native Americans in public insurance 

programs and to amplify the resources available to provide health care services to Native 

Americans. 

 

73 Cherokee Health Services, “Background Paper on Contract Support Costs,” p. 2. See also Grim Senate Testimony 

on S. 2172. 

74 Grim Senate Testimony on S. 2172, p. 4. 
Staff Draft July 2004 135

• Congress should make passage of the Tribal Contract Support Costs Technical 

Amendments of 2004, or similar legislation ensuring that contract support costs are paid in 

full, a priority item on the legislative agenda. Appropriate language should be included to 

reflect that additional funding should be appropriated without reducing the Native 

American health care budget in other areas. The refusal to fully fund contract support costs 

forces tribes to reduce spending on direct care services so that administrative expenses will 

be covered. Passage of this legislation will eliminate this practice and allow tribes to spend 

their entire direct care allotment on patient services. 

• Congress should make passage of the Health Care Equality and Accountability Act and 

the Closing the Health Care Gap Act, a priority item on the legislative agenda. Passage of 

either of these proposals would accomplish many of the same objectives as the IHCIA, 

but on a broader scale. Specific benefits include a mandate for additional funding; 

improved data management; and a greater emphasis on behavioral and preventive 

services. 

In addition to congressional action, the Indian Health Service has a strong role to play in 

engaging tribes and undertaking measures to make tribes more effective at participating in 

consultations related to pending legislative proposal the affect Native American health. 

Therefore, the Commission makes the follow recommendations: 

• IHS should conduct tribal consultation on the impact of the applicable provisions of the 

Health Care Equality and Accountability Act and the Closing the Health Care Gap Act. 

• IHS should form a working group to resolve the issues associated with Qualified Indian 

Health Programs, with an eye toward legislation to follow the enactment of the IHCIA. 
Staff Draft July 2004 136

Chapter 6: Findings and Recommendations

Based on the review and examination conducted by the Commission, the two most 

striking characteristics of the Native American health care system created by the federal 

government are the use of limited and incremental responses to the health care challenges faced 

by Native Americans, and the fact that the health status of Native Americans continues to lag 

behind that of all other Americans. Native Americans die at an earlier age than other ethnic 

groups and their quality of life is diminished as a result of the prevalence of disease. 

Treaties and related court decisions form the foundation of the federal government’s 

undisputed responsibility to provide adequate health care to Native Americans. Congress has 

formally acted upon that responsibility on more than one occasion, and virtually every political 

leader addressing Native American health care has recognized this responsibility. This report 

evaluates the extent to which rhetoric is matched by action specifically aimed at improving the 

delivery of health services and the overall health status of Native Americans. Regrettably, the 

Commission concludes that our nation’s lengthy history of discrimination against Native 

Americans, by way of unfulfilled promises, repeats itself as evidenced by the failure of Congress 

to provide the resources necessary for the creation and maintenance of an effective health system 

for Native Americans. The pattern of unfulfilled promises is also evident in the existence of 

cultural, social, and structural barriers that continue to limit Native American access to health 

care. 

Unlike our earlier report on the quiet crisis created by unmet funding needs in Indian 

Country, this report looks beyond financing to examine other factors contributing to the 

disparities in health status and health care experienced by Native Americans. Based on this 

review, the Commission makes specific recommendations for improving the Indian health 

system. Generally, the recommendations of the Commission address the social, cultural, 

structural, and financial barriers limiting access to health care by Native Americans and 

adversely affecting their overall health status. The recommendations address a range of issues in 

each category including, but not limited to, educating and training health care providers and 

patients, recruiting and retaining health care providers, program monitoring and evaluation, and 

data collection. The recommendations also call for the passage of pending legislation intended to 

improve Native American access to health care. 

Social and Cultural Barriers That Limit Native American Access to Health Care and 

Contribute to Health Disparities

It is true that individual social and cultural characteristics, most notably race, affect the 

quality of health care received in this country. The Commission finds that this is especially true 

for Native Americans who must navigate a health care system often insensitive to their unique 

cultures, who encounter health care workers biased against them as a people, and who suffer 

from disproportionate poverty and low levels of education. The Commission also finds that IHS, 

as an advocate for and provider of Indian health services, has not always been effective at 
Staff Draft July 2004 137

reducing or eliminating the barriers identified in this report. Therefore, the Commission makes 

the following recommendations: 

1. IHS should create separate complaint processing offices within each IHS facility to 

monitor, investigate, and resolve complaints alleging bias and discrimination in either 

IHS facilities or contract health facilities. These offices should report directly to senior 

management. 

2. IHS should establish formal review and appeals procedures at the area office level and in 

headquarters to ensure timely resolution of all discrimination complaints and prompt 

notification to complainants regarding the status of their complaints. 

3. IHS, upon creation of its complaint processing offices, should require each office to 

produce periodic reports summarizing the number complaints, the nature of the 

complaints received, and any remedial action taken. Based on analysis of these reports, 

IHS should formulate appropriate training programs aimed at eliminating bias and 

discrimination. 

4. IHS should implement formal cultural training programs aimed at teaching providers to 

present culturally specific health information and provide culturally appropriate services. 

5. IHS should implement cultural training programs for non-IHS providers at contract 

health facilities. 

6. IHS should, in addition to providing cultural training, expand efforts to hire more Native 

American providers who can better understand and communicate with Native American 

patients. 

7. IHS and other federal agencies, working in partnership together, should create and 

implement economic development strategies aimed at increasing tribal economic 

opportunities. These strategies should be tailored to meet the needs of each individual 

tribe as identified through tribal consultations and sound research. 

8. IHS should involve Native American communities in collecting and monitoring 

community health data by partnering Native American communities and tribes with 

researchers, colleges, universities, and others with technical expertise in health research 

or Indian health research, in particular. 

9. HHS should increase the availability of grants to Native American communities for 

conducting health research and data collection. 

10. IHS should create and implement a formal policy to ensure that adequate professional 

language assistance is available at all IHS and non-IHS contract facilities such as, the 

use of call centers where IHS can provide and direct telephone language translation 

services. 
Staff Draft July 2004 138

Structural Barriers That Limit Native American Access to Health Care and Contribute to 

Health Disparities

Independent of cultural and social characteristics, many Native Americans receive 

inadequate care as a result of structural obstacles. The Commission finds high staff turnover, and 

the resulting loss of continuity of care, particularly disturbing. In addition, many Native 

Americans must travel long distances to receive even primary care, patients must endure lengthy 

waiting times upon arrival, and many of the health facilities are outdated and in need of 

modernization. Furthermore, the Commission is aware of situations made worse by eligibility 

rules that close the door to care entirely. Accordingly, to address these and other structural 

barriers to health care, the Commission makes the following recommendations: 

11. IHS should re-evaluate its current Contract Health Services (CHS) eligibility 

requirement and adopt an eligibility requirement that allows all qualified Native 

Americans from federally recognized tribes to receive CHS regardless of their place of 

residence. 

12. IHS should provide technical training and assistance to Native American tribes lacking 

the resources and capacity to meaningfully and effectively participate in consultations 

with IHS. 

13. IHS should routinely assess and evaluate its tribal consultation and participation 

processes. In addition, the effective use of tribal consultation should be made a critical 

element in the annual performance evaluation of IHS managers to ensure that IHS 

managers are providing tribes meaningful and effective participation in all decisionmaking processes that affect Native American health care. 

14. IHS should standardize and coordinate its data collection efforts with tribes participating 

in self-governance contracts or compacts to ensure that comprehensive Native American 

health data are collected. The collection procedures and criteria adopted by IHS should 

be established in consultation with tribes. Standardized and coordinated data collection 

will make for more informed Indian health policies and initiatives. 

15. IHS should accelerate efforts to make telemedicine widely available and easily 

accessible for communities in remote areas. The IHS telemedicine programs should be 

carefully tailored to overcome the challenges related to the lack of affordable 

telecommunications in some areas, reluctance on the part of service providers to utilize 

telemedicine technology, and concerns about providing culturally sensitive health 

services. 

16. IHS should redesign operating policies to reflect the reality that many Native Americans 

have limited access to reliable transportation and, as a result, have limited access to IHS 

health facilities. To address this problem, IHS should use more “walk-in” services, 

allowing walk-in appointments as part of its regular health delivery system. 

17. IHS should implement initiatives to reduce wait times at its facilities. These initiatives 

should include redesigning or reconfiguring waiting areas and examining rooms to 

reduce overcrowding and increase productivity and efficiency; hiring more staff to 
Staff Draft July 2004 139

reduce workload; training staff on time management; and increasing productivity and 

efficiency. 

18. IHS should revise its recruiting and retention programs and take proactive measures to 

recruit and retain qualified providers. The revised IHS recruitment and retention 

programs should include tailoring the programs to meet the specific recruiting and 

retention needs of various IHS Service Areas by providing competitive pay to providers 

in areas where parity in pay is an issue; providing adequate housing or supplementing 

housing costs to address lack of adequate housing; and providing special incentives for 

providers in rural areas to compensate and address the lack of lifestyle choices in rural 

areas. 

19. IHS facilities should be properly equipped with screening and diagnostic equipment to 

provide early detection of disease. Early detection will reduce mortality rates, as well as 

medical costs over the long term. In addition to screening and diagnostic equipment, 

adequate training for providers must be provided. 

Financial Barriers that Limit Native American Access to Health Care and Contribute to 

Health Disparities

Virtually any examination of existing health disparities experienced by Native Americans 

must include an examination of funding. This report is no exception. The Commission finds that 

current funding levels are insufficient to operate an adequate health care system for Native 

Americans. The Commission further finds that the degree of underfunding is most extreme for 

urban Indian health programs and contract health services. 

Many of the funding barriers are found in the fine print of confusing administrative 

regulations. To the extent these regulations create unnecessary obstacles, they must be modified 

or, when appropriate, completely eliminated. Accordingly, the Commission makes the following 

recommendations: 

20. Congress should raise funding levels to reduce the national average FEHBP Disparity 

Index (FDI) from the current 52 percent to 80 percent. No federally funded program 

providing health care to Native Americans should be permitted to fall below an FDI of 

60 percent. In the long term, Congress should raise funding levels to establish an average 

FDI of 100 percent. 

21. Congress, in all future IHS appropriations, should ensure that the IHS budget is 

adequate, independent of any consideration of increased third-party collections. In 

addition, Congress should include language in IHS appropriations specifically 

reaffirming that increases in third party collections are not considered in determining 

IHS funding levels. 

22. Congress should establish a high-level investigative body to study changing Native 

American health care to an entitlement. This investigative body would also create a 

mechanism whereby the provision of health services to Native Americans by the federal 

government becomes mandatory and enforceable. 
Staff Draft July 2004 140

23. Congress should immediately appropriate special funds for contract health services to a 

level sufficient to eliminate the rationing of health services for Priority I patients. The 

IHS, in consultation with tribal representatives, should establish this funding level and 

all future IHS appropriations must be justified with reference to this new, higher figure. 

24. Congress should immediately appropriate special funds for urban Indian programs to 

enable the establishment of programs capable of providing care at the level of 

reservation Indians. In more specific terms, the Commission recommends increasing 

appropriations by an amount equal to the per capita expenditures for current IHS users 

(as modified by the above recommendations) multiplied by the number of anticipated 

urban Indian program users. Future appropriations should be justified with reference to 

this new, higher figure. 

25. Congress should establish a mechanism to ensure that contract support costs are fully 

funded on an annual basis. 

26. Congress should enact legislation, similar to that in the proposed Indian Health Care 

Improvement Act, linking the 100 percent FMAP reimbursement to the individual 

patient, rather than the facility used. 

27. Congress should establish a mechanism to ensure that future appropriations track with 

inflation. 

28. Congress should consider indexing increases in IHS appropriations, so that, at a 

minimum, IHS program increases keep pace with increases in Medicaid and Medicare 

programs. 

29. IHS should investigate mechanisms to allow increased decision-making authority at the 

tribal, area, and service unit level, particularly with respect to minor facilities 

modifications. 

30. IHS should update the unmet need methodology to reflect more recent data on 

enrollment in private and public insurance programs, particularly in light of the 

identified discrepancies with the 25 percent third-party recovery figure. 

31. IHS should develop an improved public education and outreach program to establish 

eligibility and facilitate enrollment in public health insurance programs, in order to 

maximize collection from alternate sources. Any efforts should incorporate the best 

practices from tribal programs with significant increases in third-party collections, 

including one-to-one interaction and oral communication modes. 

32. IHS should improve its existing internal staff training efforts on the administration of 

public health insurance programs. Participation in such programs should be mandatory 

and ongoing for all staff responsible for managing, supervising, or advising Native 

Americans on eligibility and enrollment in public health insurance programs, and those 

involved in IHS third-party collection efforts. 

33. IHS should establish measurable goals and timelines for increasing enrollment in public 

health insurance programs. 
Staff Draft July 2004 141

34. IHS should evaluate the current data management system and evaluate options for 

implementing a modernized health data system. 

35. IHS should study the impact of creating a mechanism that would enable appropriated 

funds to be spent on urban Indians, outside Title V programs. 

36. IHS should evaluate its method for using historic cost data in its negotiation of allinclusive rates, with an eye towards using more current cost report data. Alternatively, 

IHS should develop a mechanism, whereby adjustments can be made to reflect actual 

cost rates at time of service. 

37. IHS should evaluate the current IHCIF program, with an eye toward developing an 

alternative that can provide a more realistic approach to resolving inequities between the 

various tribal programs. 

38. IHS should monitor the third-party recovery efforts of individual IHS facilities and take 

corrective action to raise collections in delinquent programs. 

39. CMS and IHS should evaluate the current Medicare/Medicaid reimbursement 

mechanisms available to Native Americans, with an eye toward establishing a program, 

combining elements of the QIHP and critical access facility programs proposed in the 

IHCIA and interagency agreements, that will enable full and adequate recovery, while 

operating within the confines of the present and anticipated IHS data systems. 

40. CMS should encourage state Medicaid programs to participate in the Medicaid 

Administrative Matching program, particularly with regard to Native American 

programs. 

41. CMS should encourage state Medicaid programs to provide state representatives in IHS 

and tribal facilities, utilizing the Medicaid Administrative Matching program, where 

applicable. If necessary, CMS should incorporate additional incentives. 

42. CMS should consider modifying its six-month re-determination requirement for 

Medicaid and SCHIP eligibility. 

43. CMS should re-evaluate its decision with respect to Native American waivers in state 

operated CMS programs, in light of the unique political status of Native Americans. 

CMS should encourage state Medicaid programs to establish waivers similar in effect to 

the 100 percent FMAP program. 

44. CMS should evaluate the feasibility of providing equitable relief for those elderly Native 

Americans who fail, as a result of federal programs and policies, to qualify for Medicare 

under the 40 qualifying quarter requirement. Specifically, equitable relief should 

establish enrollment eligibility for those Native Americans who otherwise fail to qualify 

for Medicare as a result of government policies. This equitable relief could be similar in 

form to that provided to those Native Americans who failed to enroll in Medicare as a 

result of faulty enrollment guidance. In those circumstances, relief has been provided by 

granting waivers from the surcharge for late enrollment in Medicare Part B. 
Staff Draft July 2004 142

45. CMS should conduct an evaluation of the sufficiency of federal regulations governing 

administration of Medicaid and Medicare programs by IHS and tribal facilities, to ensure 

that administrative guidance is consistent and fully developed. 

Proposed Legislative Changes Affecting Native American Health Care 

In the past several years, substantial effort has been expended to identify technical 

changes that will improve the system providing health care to Native Americans. As a result, a 

number of finished proposals await implementation. Foremost among those proposals is the 

reauthorization of the Indian Health Care Improvement Act (IHCIA). The Commission supports 

the reauthorization IHCIA. The Commission also finds that other legislative initiatives, though 

not as broadly applicable to improving the current system, also contain seeds of hope for Native 

Americans. Accordingly, the Commission makes the following recommendations: 

46. Congress should make passage of the Indian Health Care Improvement Act a priority 

item on the legislative agenda. The most recent version of the IHCIA expired in 2001 

and should be reauthorized. 

47. Congress should include in the reauthorization legislation of the Indian Health Care 

Improvement Act the 100 percent FMAP provision and the waiver of the penalty for late 

payment of Medicare premiums provision. These provisions were previously deleted but 

are necessary to increase the enrollment of Native Americans in public insurance 

programs and to amplify the resources available to provide health care services to Native 

Americans. 

48. Congress should make passage of the Tribal Contract Support Costs Technical 

Amendments of 2004, or similar legislation ensuring that contract support costs are paid in 

full, a priority item on the legislative agenda. Appropriate language should be included to 

reflect that additional funding should be appropriated without reducing the Native 

American health care budget in other areas. The refusal to fully fund contract support costs 

forces tribes to reduce spending on direct care services so that administrative expenses will 

be covered. Passage of this legislation will eliminate this practice and allow tribes to spend 

their entire direct care allotment on patient services. 

49. Congress should make passage of the Health Care Equality and Accountability Act and 

the Closing the Health Care Gap Act, a priority item on the legislative agenda. Passage 

of either of these proposals would accomplish many of the same objectives as the 

IHCIA, but on a broader scale. Specific benefits include a mandate for additional 

funding; improved data management; and a greater emphasis on behavioral and 

preventive services. 

50. IHS should conduct tribal consultation on the impact of the applicable provisions of the 

Health Care Equality and Accountability Act and the Closing the Health Care Gap Act. 

51. IHS should form a working group to resolve the issues associated with Qualified Indian 

Health Programs, with an eye toward legislation to follow the enactment of the IHCIA.