By Matthew B. Lawrence
Contributors to Bill of Health’s symposium on Recommendations for a Biden/Harris Health Policy Agenda have made a number of excellent suggestions. I have one more policy suggestion to add and endorse: Congress should adopt the Biden Administration’s recent proposal to insulate the Indian Health Service from future government shutdowns.
A service population of 2.5 million American Indians and Alaska Natives rely on the federally-funded Indian Health Service (IHS). The IHS is one of several trust obligations that the U.S. government owes Native peoples as a 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,” as the U.S. Commission on Civil Rights put it.
Yet the IHS is dependent entirely on annual one-year appropriations from Congress. That means that the House and the Senate must come together, on time, every single year on an appropriations package, for the IHS to continue all its operations.
The fiscal fragility of the IHS creates real problems for Native peoples. Professor Tim Westmoreland explains how it contributes to chronic under-funding of the IHS, as even marginal increases to match inflation in health care costs are hard-fought in the annual appropriations process. Moreover, when Congress fails to enact funding in time it means major disruptions in health services. The IHS’s dependence on annual appropriations is thus one example of the “structural violence” that Professor Aila Hoss has explained undermines Tribal public health.
For example, in 2018-2019, when President Trump and Speaker Pelosi refused to come to terms on annual appropriations, shutting down the government for 35 days over border wall funding, Native peoples paid the price. Witnesses at a hearing of the House Committee on Natural Resources described examples of how, despite extraordinary (and costly) efforts by Tribes to minimize disruption, Tribal citizens were forced to forego health care, nutrition assistance, medication, substance use disorder treatment, and counseling. As the National Congress of American Indians put it at the time, “the Americans most affected by immigration over the last 500 years continue to be the most heavily impacted by the shuttering of multiple federal agencies that are unrelated to securing the homeland.”
Further, whether a shutdown happens or not, the mere threat and accompanying uncertainty about funding destabilizes the IHS. It forces Tribes to devote their political power to lobby simply to maintain the status quo. And, as the U.S. Government Accountability Office explains, it makes it harder and costlier for clinics to do everything from upgrading their electronic health records systems, to hiring new physicians.
The funding structure for the IHS leaves the program more vulnerable than other health care programs. Budget expert Richard Kogan has an excellent explainer on various types of federal funding structures in which he emphasizes the need to provide greater protection, but in short: Important federal health care programs are permanently appropriated, which means their funding never needs to be re-enacted by Congress. Medicare and the Affordable Care Act’s tax credit subsidies receive such treatment.
Other federal health care programs that are annually appropriated at least come with a tradition of “advance appropriations,” which means that Congress enacts funding each year for the upcoming year, as well as some of the year that follows. Such programs that include advance appropriations, like Medicaid, face a diminished risk of disruption should Congress fail to enact funding, at least as part of a relatively short shutdown. But not IHS.
The Biden Administration’s recently-proposed budget for IHS included a major step toward putting IHS on more equal footing. The budget proposes, for the first time, an advance appropriation for IHS. It is now up to Congress to decide whether to adopt that proposal. Congress should do so. Indeed, it would be even better for Congress to go one step further and permanently fund the program.
Proponents of Congress’ “power of the purse” might object that insulating the IHS from the annual appropriations process would diminish congressional power — it would reduce the leverage that the unicameral threat of shutdown gives the House and the Senate. That, in turn, might increase the power of what many believe is already a too-powerful executive.
But think about what that argument means in the context of the IHS: it means that Native peoples should be subjected to all the harms associated with fragility in funding for the IHS so that the nation as a whole can benefit from “balance” between the legislature and the executive branch. As I explain in a forthcoming article, such subordination of Native peoples is impossible to justify given alternative, fairer means Congress could use to maintain its influence.
Sometimes the greatest achievements of government are not problems solved but problems prevented. Next time we face divided government and a shutdown looms, it will be too late to insulate the IHS from the resulting damage. Now is the time to give the program a stable funding source. Congress should do so.