Tuesday, October 15, 2019

Eagle Butte

Guest Opinion – Statement on the Rapid City Indian Health Service 638 Process

I want to talk today about the assumption of Sioux San hospital in Rapid City by the Cheyenne River and Oglala Sioux Tribes, under an Indian Self-Determination Act contract through CRST Resolutions No. 1-2019-CR, No. 104-2018-CR, and No. 103-2018-CR. These contracts are sometimes called “638” contracts, because the Self-Determination Act is Public Law, or P.L. 93-638.

First, I want to clear up some misunderstandings about 638 contracts in general. 638 contracts allow a Tribe to take over a program run by IHS or the BIA and run it themselves. When they do this, they don’t have to use federal policies for that program, they can write their own that best meet the needs of the tribes.

So for example in 2006, when Cheyenne River contracted the BIA’s burial assistance program under a 638 contract, we changed the amounts and wrote our own rules for eligibility, which expanded the service to all Tribal members. The federal government has to keep paying for contracted programs; they have to give us whatever increases Congress appropriates for the program nationally, and we can seek increases and supplemental funding. So, the federal government is not let “off the hook,” as people seem to think, when a program is contracted under 638.

Contracting a program, or a whole department, under 638 does not affect Treaty rights at all. In the 638 law, it says that nothing that happens under the law will affect the Tribe’s sovereign immunity, and nothing will terminate the federal government’s trust responsibility toward the contracting Tribe. Language acknowledging and protecting Treaty rights is also included in the contract itself.

Do “638” contracts give up any Treaty rights?

NO. Section 110 of the Indian Self-Determination Act, now at 25 USC 450n:


SEC. 110. Nothing in this subchapter shall be construed as–

(1)  affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe; or

(2)  authorizing or requiring the termination of any existing trust responsibility of the United States with respect to the Indian people.

So if you look around at all of the programs that are already contracted: law enforcement, the enrollment office, CHRs, Title I, Field Health, and so on, our operation of those programs have in no way affected our Treaty rights, or limited the program’s funding. Instead, it puts control in the hands of the Tribe so that we can respond to the People and shape those programs to provide the services that the People need.

A lot of Tribes contract all of the federal programs and have very few federal employees on their Reservations. At Cheyenne River, we’ve contracted about one-third of those federal programs, and no one ever talks about going backward and giving them back to the federal government to run.

There’s nothing scary or bad about 638. It’s a good thing; it’s a tool to exercise our sovereignty.

IHS has recognized as the Sioux San’s Governing Board:  Cheyenne River, Oglala, and Rosebud Sioux Tribes, and approved them to enter into a 638 contract to run the hospital. This assumption of management of Sioux San was the Tribe’s idea. In fact, Rosebud was the champion of the original proposal, and they were motivated by their Tribal members in Rapid City, who had received really bad health care through Sioux San for generations.

Because managing a hospital for three tribes is complex, the Tribes delegated the actual operation of Sioux San to the Great Plains Tribal Chairman’s Health Board (GPTCHB). There were a lot of community meetings in Rapid City, and people there supported it. Last year, we were on the verge of signing a contract when Rosebud decided to pull out.

I can’t speak for Rosebud, but it may have had something to do with REDCO. REDCO is Rosebud’s Economic Development Company which among other things manages construction projects. At a meeting discussing construction of the new facility, REDCO wanted to be given the construction contract for the hospital. At a Board meeting for the GPTCHB, IHS did not want REDCO to be present, because it would give them an unfair advantage in the bidding process. REDCO left unhappy, and shortly after that Rosebud pulled out of the assumption. I hope they decide to rejoin their sister tribes and stand together with us again for our Rapid City people, but that’s their decision.

Cheyenne River and Oglala had to decide what to do next, and they decided to move forward and continue the assumption of Sioux San. Although there are a few very vocal people who oppose the project, the majority of our Tribal members in Rapid City want the Tribes to run Sioux San. They are tired of IHS and see the benefits of new management. There are so many positives:

The Health Board can recruit providers, including specialty care providers, without the restrictions of IHS, which can’t market themselves freely. 

IHS has closed the inpatient and ER at Sioux San. The Health Board, with the Tribes’ approval, can construct a Hospital with Emergency Services and specialty services.

Specialty care can eventually be provided to the reservation service units as rotations without having to go to Rapid City.

Traditional medicine can be provided as a service, which IHS cannot do.

There are so many things we can do as Tribes through the Health Board, which answers directly to the Tribes, that IHS will never be able to do.

Much of the opposition to the project has come from IHS itself, which does not want to lose control, and some IHS employees who do not understand that the assumption creates better jobs for them.

The Health Board offered Inter-Personnel agreements, called IPAs, to as many employees as they could, which was all but 31 of the current employees. Under an IPA, the employee gets the same salary and does not lose any accrued benefits. The Health Board has entered into IPAs and MOA’s (Commissioned Officers) with approximately 84% of eligible Sioux San employees at the beginning of June and had offered direct hire with the Health Board to others.

However, it is IHS who wants to RIF these employees and then reorganize and hire more staff. It appears that this is their way of letting go of employees they don’t want. But to their employees, they shift the blame to the Health Board and say it’s because of the Health Board that they “have to” lay off people. This is totally untrue. There were quite a few employees that had not completed drug testing, which made them ineligible for an IPA. It seems to be these few unsatisfactory employees, who will lose their jobs, who have been spreading lies about the assumption.

The other concern I would like to address as I am being asked is that if there is a shortfall of funding, are the tribes responsible to carry the debt. The answer is no. There is more flexibility with funding sources with third-party collections being able to be reprogrammed within the contract, applying for grants and contract support funds, which includes direct program dollars, indirect funds and startup funds that assist in making the funding levels stable.

The Health Board has been making every effort to share good information with the Rapid City community and the Sioux San employees, and after the transition, both the employees and the patients will see there was nothing to be scared of. But change is hard, even for the people who asked for the change, but the result will be better health care for all patients served by the RCSU.

The contract has been signed, and IHS will turn the facility over to the Tribes at midnight on July 20. Saturday, July 20 will be a day of wophila and celebration in Rapid City, and I would like to invite all of you to come and join us in Rapid City on that day.

Submitted by:

Bernita In The Woods

CRST District 1 Council

Health Committee Chairperson

Mni Luzahan Advisory Committee