C.F.R. » Title 42 » CHAPTER I—PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER M—INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES › PART 136—INDIAN HEALTH › Subpart G—Residual Status

42 C.F.R. § 136.61

Payor of last resort

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(a) The Indian Health Service is the payor of last resort for persons defined as eligible for contract health services under the regulations in this part, notwithstanding any State or local law or regulation to the contrary.

(b) Accordingly, the Indian Health Service will not be responsible for or authorize payment for contract health services to the extent that:

(1) The Indian is eligible for alternate resources, as defined in paragraph (c) of this section, or

(2) The Indian would be eligible for alternate resources if he or she were to apply for them, or

(3) The Indian would be eligible for alternate resources under State or local law or regulation but for the Indian's eligibility for contract health services, or other health services, from the Indian Health Service or Indian Health Service funded programs.

(c) Alternate resources means health care resources other than those of the Indian Health Service. Such resources include health care providers and institutions, and health care programs for the payment of health services including but not limited to programs under titles XVIII or XIX of the Social Security Act (i.e., Medicare, Medicaid), State or local health care programs, and private insurance.

[64 FR 58322, Oct. 28, 1999]
Notes of Decisions
Cited in 11 cases (3 in the last 5 years), 2003–2024 · leading case: Rancheria v. Hargan, 296 F. Supp. 3d 256 (D.C. Cir. 2017).
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Rancheria v. Hargan, 296 F. Supp. 3d 256 (D.C. Cir. 2017). · cites it 5× “Because CHS funds are limited, Congress established the Catastrophic Health Emergency Fund (CHEF) in 1988, which is administered by the Secretary through IHS "for the purpose of meeting the extraordinary medical costs associated with the treatment of victims of disasters or…”
Arizona Health Care Cost Containment Sys. v. McClellan, 508 F.3d 1243 (9th Cir. 2007). · cites it 2× “The rule is currently located at 42 C.F.R. § 136.61 . Under the "payor of last resort” rule, IHS does not pay if there is another source of health care funds available such as Medicaid.”
Gila River Indian Cmty. v. U.S. Dept. of Vets. Affairs, 899 F.3d 1076 (9th Cir. 2018). “See 42 C.F.R. § 136.61 . The second provision, § 1645(a)(1), gives the Secretary of the VA authority to “enter into (or expand) arrangements for the sharing of medical facilities and services between the Service, Indian tribes, and tribal organizations and the [VA].”
Redding Rancheria v. Burwell (D.D.C. 2017). · cites it 5× “42 C.F.R. § 136.61 (c). Because CHS funds are limited, Congress established the Catastrophic Health Emergency Fund (CHEF) in 1988, which is administered by the Secretary through IHS “for the purpose of meeting the extraordinary medical costs associated with the treatment of…”
North Dakota Ex Rel. Olson v. Centers for Medicare & Medicaid Servs., 286 F. Supp. 2d 1080 (D.N.D. 2003). “See 42 C.F.R. § 136.61 . As part of the program, IHS contracts with non-IHS providers to accept referrals from IHS facilities and to provide services at reduced rates.”
Saginaw Chippewa Indian Tribe of Michigan v. Blue Cross Blue Shield of Michigan (E.D. Mich. 2020). · cites it 2× “” 42 C.F.R. § 136.61 (“The Indian Health Service is the payor of last resort for persons defined as eligible for contract health services.”
Saginaw Chippewa Indian Tribe of Michigan v. Blue Cross Blue Shield of Michigan (E.D. Mich. 2021). · cites it 2× “cc/6WD5-E7DK] (last accessed 1/25/2021); see also 42 CFR § 136.61 (c). “[n]ot all participants in the Employee Plan are even American Indian, let alone CHS, or MLR, eligible.”
Saginaw Chippewa Indian Tribe of Michigan v. Blue Cross Blue Shield of Michigan (E.D. Mich. 2024). · cites it 2× “42 C.F.R. § 136.61 (c) (defining “alternate resources” as any “health care resources other than those of [IHS]” including Medicare, Medicaid, or any private healthcare insurer); see also Can CHS Pay for Your Referral Medical Care? Find Out in 3 Stages.”
Arizona Health Care v. McClellan (9th Cir. 2007). · cites it 2× “The rule is currently located at 42 C.F.R. § 136.61 . Under the “payor of last resort” rule, IHS does not pay if there is another source of health care funds available such as Medicaid.”
Meglitsch v. Southcentral Found. (D. Alaska 2022). “]” 42 C.F.R. § 136.61 . Defendant, which is providing the health care services that the IHS would otherwise provide, is legally required to seek payment from other sources first.”
Houle v. Sch. Dist. of Ashland, 2003 WI App 214 (Wis. Ct. App. 2003). “Individual tribes and their organizations are not mentioned as they are in § 162 le.”
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