CLP Report on Urban Indian Healthcare in Albuquerque

Over the course of two centuries, Native Americans ceded 400,000,000 acres of land to the federal government in exchange for certain promises, protections and services. Among these was guaranteed cradle-to-grave healthcare coverage, which should be the most comprehensive pre-paid healthcare plan in the country. Despite acknowledging this contractual obligation, however, the federal government has never fully delivered on it.

Currently, the federal Indian Health Service (IHS) is being systematically defunded and dismantled, with nothing set to take its place. The situation is acute for all Native Americans, the great majority of whom do not live on tribal lands. These so-called “Urban Indians” have been both recognized and ignored by the federal government. In the Indian Health Care Improvement Act of 1976, the federal government explicitly determined that Urban Indians have special access-to-healthcare needs. However, those needs are regularly and dangerously unmet, as evidenced by the fact that while approximately 65% of all Native Americans are considered Urban Indians (meaning they don’t live on or near their reservation or tribal lands), only about 1% of the IHS budget is designated for urban clinical facilities.

Albuquerque has one of the largest Native American populations in the country. Following the virtual shutdown of the federally run Albuquerque Indian Health Center in 2005, their lack of access to healthcare has become dire. There is a single medical services clinic in Albuquerque that receives federal funding for Native American healthcare. (A second facility receives federal funding to provide dental care to Native American children in Albuquerque). The clinic, First Nations Community Healthsource, does not have the capacity to deal adequately with the healthcare needs of the tens of thousands of Native Americans living in Albuquerque. This community should have another option.

The University of New Mexico Hospital (UNMH) is bound by a 1952 contract to provide healthcare to Native Americans free of charge. This same contract binds the federal government to reimburse UNMH for its costs. Since the Albuquerque Indian Health Center closed its urgent care services, the healthcare promised by the 1952 contract has become critically important. Yet, to date, the federal government is not reimbursing UNMH for its costs and the Hospital is not providing full service treatment to Native Americans free of charge.

While it is unclear how the contract can or will be enforced, one thing is clear: the federal government is in breach of its contractual obligation to provide comprehensive healthcare to all Native Americans, and those living off-reservation are bearing the brunt of this failure. How to enforce that obligation, or find solutions in its absence, is the challenge Albuquerque’s Urban Indians face.

2. Healthcare Crisis for Urban Indians

Albuquerque’s Urban Indian Community

Generally, Urban Indians are Indians who have left their tribes and are living in urban areas around the United States.[1] Indian Health Service (IHS) data indicates that Albuquerque has the highest percentage of Native Americans in its population of any American city (10.5%), with the third highest raw number of Native Americans.[2]

According to the IHS, however, in FY2003 there were 46,883 individuals representing 407 tribes from across the country living in Albuquerque and listed as patients at the Albuquerque Indian Health Center.[3] First Nations Community Healthsource which provides a variety of primary care services, primarily to Urban Indians, estimates there are between 45,000 and 51,000 Native people in Albuquerque representing more than 150 different tribes.

According to U.S. Census data, the median household income for Native Americans in Albuquerque in 1999 was $23,440 and per capita income was $8,679 compared to $38,272 and $20,884 for non-Indians.[4] On average, at that time, 25.8% of Albuquerque’s Native American population lived below poverty level, but there were neighborhoods in which as many as 64.6% of the population lived below poverty level.[5]

Native Americans make up 13.5% of the state’s uninsured population, while consisting of 10% of the population as a whole.[6] First Nations Community Healthsource, Albuquerque’s only Urban Indian health clinic, estimates that 70% of Albuquerque’s Native American population is uninsured.[7] In 2000, 18% of the off-reservation community reported attaining a 4 year college degree or higher compared to 30.5% for all races.[8] The unemployment rate was 13.1%, compared to 5.7% for all races, and 56.1% of Native American households consisted of a single parent, compared to 35.2% for all races.[9]

Healthcare Challenges Facing Urban Indians in Albuquerque

The federal government has long recognized the problem of poor health among off-reservation Native Americans, and, until recently, provided money to local healthcare facilities to provide primary healthcare services to Urban Indians, mainly through the IHS. This arrangement, however, has been deteriorating. Funding has been increasingly reduced, even as Urban Indian populations have grown, leaving these individuals with fewer and fewer options for care. For example, the Albuquerque Indian Health Center (AIHC), which at one time supplied urgent care to over 36,000 people per year, has been reduced to a shell of its former self, operating currently with less than a third of its previous staff. Since shuttering its urgent care facilities in 2005, no other entity has been able to fill the gap in healthcare access for Native Americans.

Because most federal healthcare dollars for Indians are distributed through tribes, Urban Indians often must return to their tribal homes to seek healthcare. However, tribal resources are generally inadequate. Tribes must ration the care they provide, giving priority to those who live on tribal territories. As a result, Urban Indians commonly cannot avail themselves of tribal care, either because their tribes cannot afford to care for them, or because their home tribes are too far away. As a result, most Urban Indians end up seeking care at the nearest public hospital or emergency room, or foregoing care altogether. In Albuquerque, this situation has lead to dire results.

The off-reservation community in Albuquerque experiences higher rates of disease and death than other communities. For example, that community’s diabetes rate is 67.6 per 100,000, compared to 13.5 for all races in the United States. Between 1990 and 1999, the rate of chronic liver diseases for Albuquerque’s Native American population was 38.6 per 100,000, as compared to 14.8 for all races, and the diabetes death rate was 43.4 per 100,000, as compared to 23.6 for all races. The need for preventative and therapeutic care is great and largely unmet.

3. Federal Responsibility to Provide Native Americans with Healthcare

The federal trust responsibility for healthcare, enshrined in numerous treaties and agreements,[10] is codified by the Snyder Act of 1921 and, subsequently, the Indian Health Care Improvement Act (IHCIA) of 1976.

Snyder Act

The Snyder Act gave Congress the authority to appropriate money for Indian healthcare.[11] It specifically recognized that the federal trust responsibility includes healthcare concerns. The Act provides that the Bureau of Indian Affairs (BIA) under the direction of the Secretary of the Interior “shall direct, supervise, and expend” money that Congress appropriates “for the benefit, care, and assistance of the Indians throughout the U.S. for the following purposes” including “for the relief of distress and conservation of health.”[12]

Indian Health Care Improvement Act

The Indian Health Care Improvement Act of 1976 is a federal statute that transferred the responsibility of overseeing Indian healthcare concerns from the BIA to IHS. It also explicitly recognizes Urban Indians as a distinct group for the first time. The IHCIA states that “[i]t is the policy of this Nation, in fulfillment of its special responsibilities and legal obligation to the American Indian people, to assure the highest possible health status for Indians and urban Indians and to provide all resources necessary to effect that policy.”[13]

The IHCIA specifically directs the Secretary of the Interior to expend funds allocated by Congress to the Indian Health Care Improvement Fund for the purpose of “meeting the health needs of Indians in an efficient and equitable manner.” But while the IHCIA authorized appropriations, it did not identify levels or goals for funding.[14]

A large portion of current IHS programs were either started or sustained through the use of IHCIA appropriations. As a result, the language of the IHCIA provides useful insight into Congress’ intent for IHS responsibilities and activities vis-a-vis Urban Indians.

Urban Indians, as distinct from Indians who live “on or near [a] reservation,” are defined by the IHCIA as any Indian who resides in an urban center.[15] An urban center is “any community which has a sufficient Urban Indian population with unmet health needs to warrant assistance under Title V as determined by the Secretary.”[16]

Title V of the IHCIA recognizes that Urban Indians have particular healthcare needs, and provides for certain programs in urban centers to “make health services more accessible to urban Indians.” Specifically, Title V established the Urban Indian Health Program, which is a vehicle for channeling appropriations directly to medical facilities that serve Urban Indian populations exclusively, bypassing other existing IHS funding streams.

The IHCIA sunsetted in 2000, but Congress is currently in the process of reauthorizing it. Reauthorization will once again confirm and codify the federal responsibility to provide comprehensive healthcare to all Native Americans, and will reassert special recognition of the status and needs of Urban Indians. Even if successful, however, the reauthorization will not include an appropriation.

4. How the Federal Government Delivers Healthcare to Native Americans in Albuquerque

In order to understand how Native Americans in the Albuquerque area are supposed to receive healthcare, it is important first to understand the basic structure of the IHS, the Contract Health Service, programs designated specifically for Urban Indians, and a law that allows tribes to withdraw their share of funding from the IHS pool and administer their own healthcare programs directly. Also, and not incidental, all Indian healthcare programs are discretionary and funded at the will of Congress, effectively allowing the federal government to abrogate its trust responsibility by withholding funds.

Indian Health Service

The IHS is charged with providing a comprehensive healthcare service delivery system for approximately 1.8 million of the nation’s estimated 3.2 million American Indians and Alaska Natives. However, it is funded at only 54% of the level necessary to provide full services in the 35 states in which it operates.[17] While funding for IHS has increased every year, studies have found that the IHS budget has failed to even keep pace with inflation and population growth.[18] Between 1990 and 2005, total IHS appropriations increased approximately 5.8% on average. However, the bulk of those increases were eaten up by mandatory pay raises for the nearly 14,500 federal employees that make up the delivery system.[19]

IHS provides care directly to members of federally recognized tribes as well as their children. Formal tribal enrollment is not required to establish eligibility.[20] Enrollment can be used to establish eligibility, but other acceptable evidence includes participation in tribal affairs or residence on tax exempt property.[21] IHS will also provide care to non-eligible women, pregnant with the children of eligible men.[22]

Direct health services, excluding those operated by tribes, are administered through a decentralized system of 12 Service Area offices and 155 IHS and tribally managed Service Units. Service Areas are typically funded based on their ‘user population,’ which counts the number of potential users as determined by tribal enrollment figures, rather than by ‘active users’ which would track the number of individual patients seen annually in a Service Area and allocate funds accordingly. The use of the less accurate ‘user pop’ method creates even further disparities across the system by not distributing resources based on actual need.

Service Units provide care within defined geographic areas typically centered around a reservation or, in Alaska, a population concentration. The base of operations for a service unit is typically a small hospital or health center. IHS does not always provide ancillary and specialty services, including laboratory and X-ray services, obstetrics/gynecology services, or outpatient mental health; nor do IHS facilities offer catastrophic healthcare services.

In New Mexico there are two IHS ‘Service Areas:’ Albuquerque and Navajo. The Albuquerque Service Area includes counties throughout central New Mexico and also includes parts of Texas and Colorado. Within this service area there are eight ‘Service Units,’ including the Albuquerque Service Unit, which is responsible for serving the healthcare needs of over 30,000 Urban Indians, as well as the tribal land-based Native Americans in the area.

Chronic under-funding has resulted in these unfortunate statistics: in 2005 the federal government spent $3,945 per capita for federal prisoners, as compared to $2,130 per capita for Native Americans.[23] In 2003, the federal government expended $2,007 per Native American client, compared to $4,487 for Medicaid clients and $7,145 for Medicare clients.[24] In that same year, the overall per capita expenditure for healthcare in the United States was $5,952.[25] An under-funded IHS routinely reduces programs and services, which increases the number of patients that must seek care outside the IHS system through Contract Health Services (CHS).

Contract Health Services

Services not provided through IHS direct care facilities may be provided to eligible patients through contracts with non-IHS caregivers. Because many Indian communities are isolated, the IHS and tribal healthcare programs make extensive use of contracts with other hospitals and specialists to supplement direct services. These contract health costs comprise about a quarter of the total cost of clinical services provided by IHS. Insufficient funding, however, often results in failure to provide services for all but the most life threatening conditions.

IHS has sought to reduce contract health costs by limiting its obligation to provide contract healthcare to Indians not living near their reservations.[26] If a Native American does not live on a reservation but does live within a Contract Health Service Delivery Area (CHSDA) that serves his or her reservation, and he or she maintains close social and economic ties with his or her tribe, then he or she remains eligible for contract health services.[27]

In most cases a CHSDA consists of the county or counties in which a reservation is located, as well as any counties it borders.[28] The Albuquerque CHSDA includes only Sandia, Isleta and Laguna pueblos, as well as the Navajo Nation through its settlement at Tohajilee.[29] Albuquerque residents from any other tribe are ineligible for CHS services. Still, since funds are insufficient to cover the volume of contract health services needed by eligible Urban Indians, priorities for service are determined based on relative medical need.[30] Since the closing of the urgent care unit at the Albuquerque Indian Health Center in 2005, most Albuquerque area CHS dollars are now being spent for urgent care at non-IHS facilities. Even these needs are not fully met, as more than two-thirds of urgent care needs are currently denied by CHS.[31]

If the entire state of New Mexico was a CHSDA, as is the case with Oklahoma, all Native Americans from New Mexico tribes would be eligible for contract care. But for New Mexico to become a statewide CHSDA, a tribe would have to petition the IHS. This has not happened.

Urban Indian Healthcare Program

The Urban Indian Health Program (UIHP), established by the Indian Health Care Improvement Act, provides funding for 34 urban Indian clinics in 19 states serving around 1,000,000 off-reservation Native Americans.[32] In 2004, these clinics provided healthcare access to around 78,000 Native Americans. [33] The program is severely under-funded: the entire UIHP budget is just $34 million, which is approximately 1% of the total budget for the Indian Health Service, despite the fact that the off-reservation Native American community has grown to comprise over 65% of the total number of Native Americans in the US.[34]

In Albuquerque is only one facility that receives funding through the UIHP: First Nations Community Healthsource.[35] First Nations, established in 1972, provides primary care, dental care and behavioral healthcare to approximately 1120 patients per month with a current budget of around $2.4 million. It receives approximately $380,000 per year in UIHP funds.[36] In 2006, First Nations treated 5769 primary care patients, 3163 of whom were Native American.[37]

Federal funding for Urban Indian Healthcare clinics has been under assault by the current administration. In each of the last several years, President Bush has attempted to zero out all IHS funding for the 34 non-profit Urban Indian clinics. To date, that funding has always been restored, though at an extremely low level given the population base it is meant to serve

Public Law 638

Since the passage of PL 93-638, the Indian Self Determination Act and Education Assistance Act of 1975, tribal governments have had the opportunity to contract directly for their own programs and services, including healthcare services, with the federal government.[38] These are generally referred to as “638 contracts,” and permit tribes to administer a full spectrum of services, including both direct and contract healthcare services, facilities construction, community health representatives programs, mental health and drug abuse services and health education initiatives.

Tribes may withdraw up to 100% of their tribal share of the IHS funding in their service area.[39] Nationally, in FY 2006, tribes controlled approximately $1.8 billion, or 55 percent of IHS's total budget, through 638 contracts.[40]

These healthcare centers are required to provide care to any person who is otherwise eligible for IHS services.[41] Currently, we have no information about what policies the local 638 clinics have in place regarding the treatment of non-member and off-reservation Native Americans.

Albuquerque Service Unit

The Albuquerque Service Unit of the IHS is severely under-funded, and has had to cut back substantially on the services it provides. The most recent blow was the 2005 closing of the AIHC urgent care unit, which had been treating between 100 and 200 patients daily.[42] One significant reason for the lack of resources lies in the way in which IHS calculates and distributes its funding of local healthcare providers.

When the IHS was created, most Native Americans still lived on or near their tribal lands. Its purpose was to provide healthcare in remote areas where no other options existed. Federal healthcare dollars were therefore allocated based on a tribe’s enrollment numbers, and allocated to the service areas where those tribes are located – or to the tribes directly – based on those numbers. Even though in the intervening years many Native Americans have migrated for various reasons from their tribal lands, that formula continues to guide IHS spending.

The money doesn’t follow the patient; it goes to the wherever that patient is tribally enrolled. So Native Americans from non-local tribes who live in the Albuquerque area – and make up 75% of the local Native population – are not accounted for when the Albuquerque Service Unit is funded. As a result, services for the entire Albuquerque Urban Indian community must be funded by allocations intended to serve only the tribes located in the Albuquerque area, which happen to be three of the smaller tribes in New Mexico: Sandia, Santa Ana, and Zia Pueblos.[43]

In FY2005, federal allocations to the Albuquerque Service Unit for direct medical services amounted to just $542 per capita, because of the need to serve those Native Americans not officially accounted for on the local tribal rolls. This figure is well shy of the national IHS per capita spending average of $2,130.[44] In order to fund local Urban Indian healthcare services at that level, the Albuquerque Service Unit would need an annual budget of around $58 million. It has always operated with much less and, due to recent events, that amount has plummeted.

More and more local tribes have recently contracted with IHS under PL 638.[45] The good news is that these tribes were then able to spend an average of $3,136 on treatment for their people. [46] However, as a result of these funds leaving the IHS direct service pool, the Albuquerque Service Unit was left with $10 million in tribal allocations, in addition to about $4 million a year from Title V funding. This created a substantial operational shortfall, as, in 2005, AIHC needed $15 million to operate at full capacity.[47]

The devastating impact of these funding shortfalls in the Albuquerque area is significant and widespread. In 2006, a resident at the University of New Mexico Hospital, Dr. Dan Waldman, completed some preliminary research into the effects of the closure of urgent care services at AIHC. Based on interviews with 110 participants, 83.8% of whom live in Albuquerque, he learned that:

· 56.9% of the respondents self-identified as Navajo (remember, the Albuquerque Service Unit gets NO funding based on appropriations for Navajos).

· 57% had no health insurance, 19% had private insurance, 1% were enrolled in the UNM Care charity plan, and 23% had Medicaid or Medicare.

· Since the closure of urgent care services at AIHC in 2005, respondents sought urgent care services at non-IHS facilities an average of 4 times.

· 61.6% of respondents answered that they had not sought medical care at least once in a situation where they would have previously gone to AIHC’s urgent care.

· 45.5% of respondents stated that the single greatest barrier in seeking walk-in services was lack of insurance or increased costs.

· 22.8% of respondents stated they owe more than $500 for walk-in care received since the AIHC urgent care closure.

Finally, the Commonwealth Fund recently issued its Scorecard on Health System Performance, 2007. In this report, it ranked each state according to a number of different dimensions of their healthcare systems. Unfortunately, New Mexico ranked dead last in the category of “Access.” This ranking was based on metrics involving the entire state population. When considering the extreme vulnerability of off-reservation Native Americans within the evident shortcomings of New Mexico’s healthcare delivery system, it becomes logical to extrapolate that New Mexico’s Urban Indian population has the worst access to healthcare of any community in the United States.

5. UNMH and the 1952 Contract

History

What we now know as the UNM Hospital began in 1949, when Congress authorized the Secretary of the Department of Interior to transfer 5.33 acres of BIA-controlled federal land to Bernalillo County for the construction and operation of a hospital by the county. The intention was to build a hospital for the approximately 18,000 Pueblo Indians living on surrounding reservations.[48] At the time, however, William W. Zimmerman, Acting Commissioner of the Bureau of Indian Affairs testified, “the hospital would be open to Indians from many parts of the Southwest, and for that matter, to Indians from any part of the United States, and would not be limited under this bill to Pueblo Indians.”[49] The costs of care and treatment of all eligible Indians would be reimbursed by the federal government, pursuant to predetermined formulas.

On January 18, 1952, Bernalillo County signed a contract with the United States, ‘acting by and through the Commissioner of Indian Affairs for the operation and maintenance’ of the hospital. The final construction cost of the hospital of $3.25 million was shared by the two parties to the contract; $1.5 million from the BIA, $1.75 million from Bernalillo County. In 1954, the Bernalillo County Indian Hospital was opened with the mission of serving Indians and indigents (whose costs are provided for by the county mill levy). According to the contract, the hospital was obligated to reserve at least 100 beds for Pueblo Indian patients. Subsequent Amendments in 1956 and 1957 reiterated the primacy of the contract’s intention to “assure that adequate medical treatment for qualified Indians is properly provided.”

The term “Indian” was explicitly used in the contract to mean all Native Americans, not just those from tribes in the Albuquerque area or even New Mexico.[50] There was no distinction made between Pueblo and non-Pueblo Indians, let alone between residents and non-residents of either Bernalillo County or the State of New Mexico.[51] In other words, any member of any federally recognized tribe from anywhere in the United States was eligible for federally-reimbursed care at the Bernalillo County Indian Hospital.[52]

In 1968, the name of the hospital was changed to Bernalillo County Medical Center. In 1969, UNM assumed operation of the hospital as a teaching hospital. In 1978, UNM assumed full control of the hospital under a 20-year lease with the county, which was renewed in 1999. In each amendment and extension, UNM and Bernalillo County have explicitly agreed to honor the responsibilities to Native Americans identified in the original federal contract. IHS has consistently signed off on amendments and extensions, and in 1978 it made the All Indian Pueblo Council (AIPC) a Native American representative party to the contract, able to participate in negotiations and consultations and eligible to receive all reporting previously owed to IHS.[53] In 1987, the facility was renamed the University of New Mexico Hospital (UNMH).

However, in the course of amending and expanding on the original contract, some curious changes have been made. For example, language in a 1999 amendment indicates that the hospital was built on land conveyed to Bernalillo County by the federal government “for the purpose of providing a site for a hospital for the County that would also serve Native Americans of New Mexico” (emphasis added).[54] The hospital was originally conceived as an Indian Hospital, and was never meant to provide treatment solely to Native Americans from New Mexico tribes. Though seemingly innocuous, this kind of language shift can have serious consequences as the contract is interpreted now and in the future – especially in light of the new pressures faced by UNMH to treat Native Americans in the wake of the closure of urgent care services at AIHC.

Current State of Affairs

Though the contract and lease agreement have been amended several times, the gist of the original 1952 federal contract remains the same: the hospital is obligated to provide high quality healthcare services to Indian people and the federal government is obligated to pay for them.

In 2003, UNMH sought an extension of its lease with Bernalillo County, in order to qualify for a federal mortgage it needed to build a new wing. This lease extension required IHS approval, which was ultimately granted. However, the negotiations took place without any Urban Indian input, with detrimental results. Several new policies were introduced into the language of the contract, despite the fact that they might not comport with the intent of the original contract.

For example, the UNMH payment policy for uninsured patients explicitly states that Native Americans will be treated the same as other Bernalillo County residents when presenting themselves for care. This language was intended to ensure that Native Americans are not turned away from UNMH and sent instead to the IHS for treatment, as had apparently happened in the past. However, that policy language also seems to have the effect of equating Native Americans with other patients in a way that is contrary to the intentions of the contract, insofar as it can be read to indicate that UNMH no longer has to provide Native Americans with healthcare free of charge.

Another new policy, regarding the UNMH charity care program (UNM Care) also appears to eliminate any responsibility to provide free care to Native Americans unless they are indigent and live in Bernalillo County. UNMH will enroll those indigent Native American residents of Bernalillo County who so qualify in UNM Care, not charge them a co-pay (as is required of other UNM Care participants) and absorb the costs, rather than charging IHS. But the original contract never singled out either indigence or Bernalillo County residence as criteria for care of Native Americans, nor did it ever contemplate that any Native American would be ever charged anything for medical care at the hospital; those costs were always meant to be paid by the federal government, which seems to have left the equation entirely.

This new interpretation of the fiscal responsibility for Native American healthcare incurs new costs for Bernalillo County and the state of New Mexico. Moreover, restricting access to those locally-funded charity care dollars to Native Americans who are residents of Bernalillo County raises other questions. What are out-of-county Native Americans who now rely on UNMH to provide care supposed to do? If they are unable to access the charity care dollars, is the federal government picking up their tab? Or are they being billed, contrary to the intent of the original contract?

Furthermore, the designation of AIPC as the Native American entity of record for negotiating and reporting purposes raises other problems. For example, AIPC is now invited to a contract-mandated annual meeting to discuss implementation of the contract’s elements. No Urban Indians are invited to attend this meeting. But the majority of the off-reservation Native Americans living in the Albuquerque metro area (the vast majority of whom are Navajo) are not members of the Pueblo tribes and, therefore, are not in any way represented by AIPC. AIPC has no real incentive to advocate on their behalf.

In the process of amending the contract, IHS has, with AIPC support, become the payor of last resort for Native American care. Although UNMH has recently created a paid position of liaison to the tribes, it has done little to establish formal relations with the community to which it is most likely – and most obligated – to provide service: Albuquerque’s Urban Indians.

According to UNMH, Native American patient encounters[55] from FY 2004 to FY 2006 averaged around 1,100 emergency room visits, 1,800 inpatient encounters and 6,200 outpatient visits. Native Americans made up from 5.1% to 5.6% of the total number of patients seen at UNMH, though they constituted between 11.8% and 12.6% of all UNMH emergency room visits. But it is still not clear who is supposed to pay for that treatment, now that the federal government seems removed from the equation. Increasingly, that burden appears to be falling on the very people the hospital was initially constructed to provide free service to – Native Americans.

UNMH has committed to creating a “storefront’ for its Office of Native A