Saginaw Chippewa Indian Tribe of Michigan; Welfare Benefit Plan v. Blue Cross Blue Shield of Michigan

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0079p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SAGINAW CHIPPEWA INDIAN TRIBE OF MICHIGAN;
WELFARE BENEFIT PLAN,
Plaintiffs-Appellants,
v.
BLUE CROSS BLUE SHIELD OF MICHIGAN,
Defendant-Appellee.
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No. 21-1226
Appeal from the United States District Court for the Eastern District of Michigan at Bay City.
No. 1:16-cv-10317—Thomas L. Ludington, District Judge.
Argued: October 26, 2021
Decided and Filed: April 25, 2022
Before ROGERS, STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Perrin Rynders, VARNUM LLP, Grand Rapids, Michigan, for Appellants. Tacy F.
Flint, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee. ON BRIEF: Perrin Rynders,
Herman D. Hofman, VARNUM LLP, Grand Rapids, Michigan, for Appellants. Tacy F. Flint,
Abigail B. Molitor, Rebecca B. Shafer, SIDLEY AUSTIN LLP, Chicago, Illinois, for Appellee.
James K. Nichols, THE JACOBSON, LAW GROUP, Saint Paul, Minnesota, for Amici Curiae.
STRANCH, J., delivered the opinion of the court in which DONALD, J., joined.
ROGERS, J. (pp. 21–26), delivered a separate opinion joining in Parts I and II, except Part II.B,
of the majority opinion, and in the judgment for the reasons stated in his opinion.
>

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
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OPINION
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JANE B. STRANCH, Circuit Judge. The Saginaw Chippewa Indian Tribe and its Benefit
Plan brought federal and common law claims against Blue Cross Blue Shield of Michigan
(BCBSM or Blue Cross) for failing to fulfill its fiduciary duties in administering tribal health
insurance plans. When we first encountered this dispute three years ago, we reversed the district
court’s dismissal of the Tribe’s claims based on Blue Cross’s alleged failure to insist on
“Medicare-like rates” for care authorized by the Tribe’s Contract Health Services1 program and
provided to tribal members by Medicare-participating hospitals. On remand, the district court
granted summary judgment to Blue Cross, concluding that the Tribe’s payments for qualified
CHS care through the Blue Cross plans were not eligible for Medicare-like rates. The district
court interpreted the relevant federal regulations as limiting the requirement of Medicare-like
rates to payments for care that was authorized by CHS, provided to tribal members by Medicare-
participating hospitals, and directly paid for with CHS funds. Based on the plain wording of the
applicable regulations, we REVERSE and REMAND the case to the district court for further
proceedings consistent with this opinion.
I. BACKGROUND
A. Federal Law Regulating Tribal Healthcare Plans
The two health insurance plans at the heart of this appeal—both authorized by the
Saginaw Chippewa Indian Tribe and administered by Blue Cross Blue Shield of Michigan—sit
against a backdrop of federal law providing for American Indian healthcare. Persons of
American Indian descent have access to federally funded healthcare through the Indian Health
Service (IHS), an agency within the Department of Health and Human Services. IHS funds and
1The Consolidated Appropriation Act of 2014 renamed the Contract Health Services program “the
Purchased/Referred Care program” (PRC). See Purchased/Referred Care (PRC), Indian Health Service (June
2016), https://www.ihs.gov/newsroom/factsheets/purchasedreferredcare/. Because the lower court and parties use
the terms “CHS” and “Contract Health Services,” we have also adopted that terminology for this opinion.

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operates direct healthcare facilities for tribes and funds Contract Health Services (CHS)
programs. See 25 U.S.C. §§ 1603(5), (12); 42 C.F.R. § 136.23.
CHS programs are “health services provided at the expense of the Indian Health Service
from public or private medical or hospital facilities other than those of the [Indian Health]
Service,” 42 C.F.R. § 136.21. CHS care is provided “when necessary health services by an
Indian Health Service facility are not reasonably accessible or available.” Id. § 136.23(a).
Federal regulations require pre-approval for CHS care:
In nonemergency cases, a sick or disabled Indian, an individual or agency acting
on behalf of the Indian, or the medical care provider shall, prior to the provision
of medical care and services notify the appropriate ordering official of the need
for services and supply information that the ordering official deems necessary to
determine the relative medical need for the services and the individual’s
eligibility.
42 C.F.R. § 136.24(b). After the ordering official approves an eligible individual for CHS care,
the CHS program issues a purchase order to the medical-care provider authorizing the eligible
individual to receive the specific medical services described on that order. Id. § 136.24(a).
The federal government does not act alone in this endeavor to provide healthcare to
American Indians. The tribes themselves play a vital role in managing, funding, and providing
healthcare to their members. In recognition of “the obligation of the United States to respond to
the strong expression of the Indian people for self-determination by assuring maximum Indian
participation in the direction of . . . Federal services to Indian communities,” 25 U.S.C. § 5302,
Congress enacted the Indian Self-Determination and Education Assistance Act of 1975, id.
§ 5301, et seq. To promote the “orderly transition from the Federal domination of programs for,
and services to, Indians to effective and meaningful participation by the Indian people in the
planning, conduct, and administration of those programs and services,” id. § 5302(b), the law
empowers tribes to enter self-determination contracts with the federal government, id.
§ 5321(a)(1). These contracts shift the federal government’s role from direct service provider to
funder of tribal organizations that will administer and organize the necessary services. See FGS
Constructors, Inc. v. Carlow, 64 F.3d 1230, 1234 (8th Cir. 1995). Tribes can manage and staff

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
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their own IHS facilities, contract with private insurers for tribal healthcare coverage, and operate
their own CHS programs for eligible American Indians.
This framework, however, has not always ensured that healthcare is accessible or fully
funded for those of American Indian descent. “The provision of health care for American
Indians has historically been, and remains, plagued by chronic funding shortages and ineffective
provision of services.” Rancheria v. Hargan, 296 F. Supp. 3d 256, 259 (D.D.C. 2017). To
combat financial constraints, IHS health programs—whether operated by the IHS itself or a
tribe—are “the payer of last resort” for healthcare costs. 25 U.S.C. § 1623 (“Health programs
operated by the Indian Health Service, Indian tribes, tribal organizations, and Urban Indian
organizations . . . shall be the payer of last resort for services provided by such Service, tribes, or
organizations to individuals eligible for services through such programs. . . .”). Therefore,
Medicare, Medicaid, or private insurance must pay before IHS reimbursement is available.
42 C.F.R. § 136.30; see also 42 C.F.R. § 136.61 (defining these funding sources as “alternate
resources”).
CHS funding has faced particularly significant financial constraints, which amendments
to federal law and regulation have sought to address. See Section 506 of the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003—Limitation on Charges for
Services Furnished by Medicare Participating Inpatient Hospitals to Indians, 71 Fed. Reg.
25124, 25125 (Apr. 28, 2006) (“[H]istorically, purchase orders for CHS services have been for
amounts at full billed charges that substantially exceeded the Medicare allowable rates and this
problem could recur in the future.”). The Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 authorized the Secretary of the Department of Health and Human
Services to demand Medicare pricing from hospitals providing services to tribes through the
CHS program. Pub. L. No. 108–173. Specifically, the law inserted a new subparagraph into
42 U.S.C. § 1395cc requiring Medicare-participating hospitals that agree to provide medical care
“under the contract health services program funded by the Indian Health Service and operated by
the Indian Health Service, an Indian tribe, or tribal organization” to accept Medicare-like rates
(MLR) as payment. 42 U.S.C. § 1395cc(a)(1)(U)(i). The law instructed the Secretary to publish
rules implementing this new language. Id. § 1395cc(a)(1)(U). Accordingly, the Indian Health

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Service issued a final rule on June 4, 2007, which was codified in relevant part at 42 C.F.R.
§ 136.30. See Section 506 of the Medicare Prescription Drug, Improvement, and Modernization
Act of 2003—Limitation of Charges for Services Furnished by Medicare Participating Inpatient
Hospitals to Individuals Eligible for Care Purchased by the Indian Health Programs, 72 Fed.
Reg. 30706 (June 4, 2007).
These federal regulations set a ceiling on payments that Medicare-participating hospitals
receive for CHS care “authorized by IHS, Tribal, and urban Indian organization entities.”
42 C.F.R. § 136.30(a). Providers must accept Medicare-like rates as payment for “all levels of
care furnished by a Medicare-participating hospital . . . that is authorized under part 136, subpart
C by a contract health service program of the Indian Health Service (IHS)[ ] or authorized by a
Tribe or Tribal organization carrying out a CHS program of the IHS. ” Id. § 136.30(b).
The MLR regulations extend payor-of-last-resort status to include an “I/T/U” that “has
authorized payment for items and services provided to an individual who is eligible for benefits
under Medicare, Medicaid, or another third party payor.” 42 C.F.R. § 136.30(g). An I/T/U is an
IHS contract health service program, a “Tribe or Tribal organization carrying out a CHS program
of the IHS under the Indian Self-Determination and Education Assistance Act,” or “an urban
Indian organization.” Id. § 136.30(b).
These regulations further identify the steps that an eligible tribal member must take to get
CHS care and cause the provider to accept a Medicare-like rate for that care. In most situations,
there must be notification of the proposed CHS care to “the appropriate ordering official” to
determine the individual’s eligibility and the necessity of the care. Id. § 136.24(b). MLR
payment for CHS is allowed only after the ordering official receives this notice and issues a
purchase order to the medical care provider. Id. § 136.24(a).
B. The Tribe’s Contract Health Services Program
The Saginaw Chippewa Indian Tribe of Michigan is a federally recognized Indian Tribe.
The Tribe administers a CHS program under the Indian Self-Determination and Education
Assistance Act using IHS and tribal funds. Pursuant to federal regulations, the Tribe requires
individuals requesting CHS care to (1) show that they are a member of a federally recognized

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Indian tribe or a direct descendant of the Saginaw Chippewa Indian Tribe and (2) show proof of
residency in one of the five counties that the Tribe’s program covers. The Tribe explained to the
district court:
[i]f the patient met the above criteria and the CHS program determined that the
medical services being sought were deemed necessary, the Tribe’s CHS program
(as the “ordering official”) issued a “purchase order” or “referral,” authorizing the
service in accordance with 42 C.F.R. 136.24(a). The patient was then required to
present the purchase order/referral from the CHS program to the provider at the
time of service.
(R. 177, Plaintiffs’ Response in Opp. to Summary Judgment, PageID 10832) The Tribe did not
inform Blue Cross which employees covered under its self-funded health insurance plan for
employees were members eligible for the CHS program. However, the Tribe asserts that its CHS
program provided referrals authorizing the care for all claims at issue in this case.
C. The Tribe’s Contracts with Blue Cross Blue Shield of Michigan
In 2002, the Tribe contracted to have Blue Cross administer a self-funded health
insurance policy for Tribe members (the “Member Plan”). Under the Administrative Services
Contract (ASC), Blue Cross would receive a fee for its administrative work, including submitting
healthcare claims, while the Tribe would pay directly for the healthcare services. Only enrolled
members of the Saginaw Chippewa Tribe were eligible to participate in the Member Plan. In
2004, the Tribe executed another ASC with Blue Cross, this time for a self-funded plan for tribal
employees (the “Employee Plan”). The Employee Plan covered Tribe employees regardless of
their tribal membership status.
The administrative service contracts had substantially similar terms. The Member Plan
ASC and the Employee Plan ASC both provided that Blue Cross “shall administer Enrollees’
health care Coverage(s) in accordance with BCBSM’s standard operating procedures for
comparable coverage(s) offered under a BCBSM underwritten program, any operating manual
provided to the Group, and this Contract.” (R. 79-3, Admin. Servs. Contract, PageID 3163) The
contracts limited Blue Cross’s responsibilities “to providing administrative services for the
processing and payment of claims.” (Id., PageID 3163) Blue Cross and the Tribe stated in their
contracts that, to the extent ERISA applies, Blue Cross was “neither the Plan Administrator, the

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Plan Sponsor, nor a named fiduciary of the Group’s health care program under ERISA.”2 (Id.,
PageID 3163–64)
As our court explained in the earlier appeal in this case, the Employee and Member Plans
were separate and had separate funding sources. Saginaw Chippewa Indian Tribe of Mich. v.
Blue Cross Blue Shield of Mich., 748 F. App’x 12, 15 (6th Cir. 2018). The Tribe originally
funded the Member Plan with its Government Trust and later transitioned the funding to the
Tribe’s Gaming Trust. The Tribe used its Fringe Internal Service Fund to fund its Employee
Plan. Over 98% of the Fringe Trust funds came from the Tribe’s gaming revenue. Jacqueline
Reger, the Tribal Controller, explained in a 2019 deposition that the Tribe’s ledgers kept IHS
funds “completely separate from anything used to fund the employee plan or the member plan.”
(R. 173-4, Reger Depo. Excerpts, PageID 8985) The Tribe allocated its IHS funds “specifically
to the clinic and its needed resources to run efficiently and then behavioral health to run
efficiently.” (R. 79-22, Reger Depo., PageID 3631)
D. Procedural History
The Tribe sued Blue Cross in January 2016. Its amended complaint alleges that Blue
Cross charged hidden fees, overstated the cost of medical services, and violated its fiduciary
duties under ERISA by not demanding MLR from medical providers for eligible costs. The
Tribe alleges that BCBSM knew that it was supposed to pay MLR to hospitals participating in
Medicare, but instead chose to pay standard contractual rates for MLR-eligible services using
Plan assets. According to the Tribe, Blue Cross’s failure to insist on MLR from providers cost
the Tribe millions of dollars.
In April 2016, the district court granted in part Blue Cross’s motion to dismiss the Tribe’s
first amended complaint, concluding that the MLR regulations do not create a substantive
fiduciary duty under ERISA. Accordingly, it dismissed the Tribe’s counts alleging state and
2We note ERISA fiduciaries cannot contract away their fiduciary status. See 29 U.S.C. 1110; Phahler v.
Nat’l Latex Prods. Co., 517 F.3d 816, 836 (6th Cir. 2007). “The word ‘named’ in this provision leaves open the
possibility that [Blue Cross] may be an unnamed fiduciary” because ERISA draws a distinction “between a ‘named
fiduciary,’ under 29 U.S.C. § 1102(a), and a ‘fiduciary’ under 29 U.S.C. § 1002(21)(A),” with “[n]amed fiduciaries
[as] a subset of fiduciaries.” IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415, 1419 (9th Cir. 1997).

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
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federal claims based on Blue Cross’s failure to seek MLR. A year later, the Tribe and Blue
Cross each moved for partial summary judgment. In granting both motions in part, the district
court concluded that the Member and Employee Plans were separate for purposes of its ERISA
analysis. The district court also ruled that ERISA is inapplicable to the Member Plan.
On appeal, we reversed the district court’s dismissal of the Tribe’s MLR claims. We
concluded that the Tribe’s allegations that Blue Cross’s failure to take advantage of MLR for
eligible claims violated its fiduciary duties was sufficient to state an ERISA claim. Saginaw
Chippewa Indian Tribe of Mich., 748 F. App’x at 21. Our court rejected Blue Cross’s argument
that “its administration of the Tribe’s plan simply is not subject to the MLR regulations” because
those regulations “apply only to the expenditure of IHS funds,” explaining that:
Although BCBSM asserts that the Tribe’s MLR claim therefore fails as a matter
of law, BCBSM’s argument is better understood as contending that the Tribe
cannot show as a factual matter, that the regulations apply to its ERISA plan. But
since the Tribe has alleged that the BCBSM was aware of the MLR regulations,
that BCBSM failed to ensure that the Tribe paid no more than MLR for MLR-
eligible services, and that all other conditions precedent to the MLR claim were
met, the Tribe has sufficiently pleaded that the MLR regulations are applicable to
BCBSM’s administration of the Tribe’s ERISA plan. We emphasize that we
express no opinion on the ultimate merits of the Tribe’s MLR claim, and we hold
only that it would be premature to dismiss the Tribe’s claim at this stage of the
proceedings.
Id. at 21–22. We affirmed the district court’s conclusions that the healthcare plans were separate
and that ERISA is inapplicable to the Member Plan. Id. at 19.
On January 4, 2019, the district court entered a stipulated order reinstating the Tribe’s
three MLR claims. Count I alleges that Blue Cross breached its fiduciary duty pursuant to
ERISA by “[p]aying excess claim amounts to Medicare-participating hospitals for services
authorized by a tribe or tribal organization carrying out a CHS program.” Count IV alleges that
the Tribe is a “health care insurer” pursuant to the Michigan Health Care False Claims Act and
that Blue Cross violated the act by not seeking the Medicare-like rate for MLR-eligible claims
under the Member Plan. Count VI alleges that Blue Cross breached its common law fiduciary
duty under the Member Plan by not seeking MLR for MLR-eligible claims.

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After discovery, Blue Cross moved for summary judgment. The district court granted the
motion, concluding that the insurer had no duty to seek MLR under either plan because “MLR is
only applicable for those services funded by CHS” and “BCBSM was not authorized nor did it
pay for services using funds from CHS.” The district court denied the Tribe’s motion to alter or
amend the judgment. This appeal followed.
II. ANALYSIS
A. Standard of Review
We review a district court’s grant of summary judgment de novo. Carter v. Univ. of
Toledo, 349 F.3d 269 (6th Cir. 2003). Summary judgment is proper if there are no issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). Courts must consider the evidence in the light most favorable to the nonmoving party,
drawing all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The ultimate question is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so-one-sided that one party must
prevail as a matter of law.” Id. at 251–52.
B. Contract Health Services and Medicare-Like Rates
The Tribe’s three MLR claims—breach of a fiduciary duty under ERISA, violation of the
Michigan Health Care False Claim Act, and breach of a fiduciary duty under common law—are
premised on the argument that Blue Cross, in administering both the Employee and Member
Plans, should have demanded Medicare-like rates for CHS care provided to eligible Tribe
members at Medicare-participating hospitals and pre-authorized by the Tribe’s CHS program.
The primary question on appeal, therefore, is whether Medicare-like rates were even available
for services authorized by the Tribe’s CHS program and billed through the Blue Cross plans.
The district court granted Blue Cross summary judgment on these claims based on its
determination that the regulation defining the applicability of Medicare-like rates does not extend
those rates to payments made through insurance plans like the Member and Employee Plans.
Instead, Medicare-like rates apply only to CHS-funded services. The district court reached this

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conclusion through its interpretation of some regulatory history, a few IHS guidance documents,
and analysis of select district court cases.
We start at a different point because courts “begin [their] interpretation of the regulation
with its text.” Green v. Brennan, 136 S. Ct. 1769, 1776 (2016). “[A] fundamental canon of
statutory construction is that ‘when interpreting statutes, the language of the statute is the starting
point for interpretation, and it should also be the ending point if the plain meaning of that
language is clear.’” Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir. 2007) (quoting United
States v. Boucha, 236 F.3d 768, 774 (6th Cir. 2001)). The same logic applies to interpretation of
regulatory language. See Kisor v. Wilke, 139 S. Ct. 2400, 2414 (2019). We therefore deploy the
standard tools of interpretation. See, e.g., Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644, 688–69 (2007) (invoking the canon against surplusage in the interpretation of
regulatory language); Long Island Care Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007) (using the
canon that the specific controls the general in construing regulatory language). If a regulation’s
meaning is plain, the court must give the “it effect, as the court would any law,” Kisor, 139 S. Ct.
at 2415, and the court’s inquiry into the regulatory meaning is over, In re Laurain, 113 F.3d 595,
597 (6th Cir. 1997); cf. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020). We may look to
agency guidance if the language is ambiguous, but typically, “before concluding that a rule is
genuinely ambiguous, a court must exhaust all the ‘traditional tools’ of construction.” Kisor,
139 S. Ct. at 2415 (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843
n.9 (1984)).
The disputed regulatory language concerns § 136.30, which sets a ceiling on the
payments that Medicare-participating hospitals can receive for authorized CHS care. These
hospitals must accept Medicare-like rates as payment in full for:
all levels of care . . . that is authorized under part 136, subpart C by a contract
health service (CHS) program of the Indian Health Service (IHS); or authorized
by a Tribe or Tribal organization carrying out a CHS program of the IHS
under the Indian Self-Determination and Education Assistance Act, as
amended, Pub. L. 93–638, 25 U.S.C. 450 et seq.; or authorized for purchase under
§ 136.31 by an urban Indian organization (as that term is defined in 25 U.S.C.
1603(h)) (hereafter “I/T/U”).

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Id. § 136.30(b) (emphasis added). In short, our concern is with “care . . . that is authorized by a
Tribe or Tribal organization carrying out a CHS program.” Id. Subsections (c) and (d) explain
the reimbursement calculation in relation to the Medicare reimbursement rate. Id. § 136.30(c)–
(d).
Although the parties parse various parts of the regulatory language, the focus of our
analysis is on what it means for a Tribe to be “carrying out a CHS program of the IHS.”
According to the Tribe, this language unambiguously does not require the use of CHS or IHS
funds for authorized care to qualify for the Medicare-like rate. The Tribe’s construction of
§ 136.30 identifies only two preconditions to the application of MLR: “(1) the healthcare
provider’s participation in Medicare; and (2) authorization by a Tribe or Tribal organization
carrying out a CHS program.” The Amici—a group consisting of American Indian Tribes, tribal
organizations, and Shasta Administrative Services3—offer a similar reading, arguing that a
tribe’s CHS program could be entirely separate from the healthcare plan paying for the MLR-
eligible service as long as the tribe operates a CHS program as well. Ultimately, both argue that
it is the authorization from the Tribe’s CHS program for the CHS care that triggers the
availability of Medicare-like rates under the regulatory language.
In contrast, Blue Cross insists that the regulation unambiguously requires payment
from tribal CHS funds for MLR discounts to apply. Blue Cross points to subsections (e), (f), and
(g), which discuss how MLR payments to Medicare-participating hospitals are calculated.
3The Amici are Agua Caliente Band of Cahuilla Indians, Alaska Native Health Board, Bois Forte Band of
Chippewa Indians, Chickasaw Nation, Chippewa Cree Tribe of the Rocky Boy Reservation, Chitimacha Tribe of
Louisiana, Choctaw Nation, Coquille Indian Tribe, Eastern Band of Cherokee Indians, Gila River Indian
Community, Grand Traverse Band of Ottawa and Chippewa Indians, Hopi Tribe, Jamestown S’Klallam Tribe,
Keweenaw Bay Indian Community, Lower Sioux Indian Community, Mashantucket Pequot Tribal Nation, Match-E-
Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan, Menominee Indian Tribe of Wisconsin, Miami Tribe
of Oklahoma, Midwest Alliance of Sovereign Tribes, Mississippi Band of Choctaw Indians, Mohegan Tribe of
Indians of Connecticut, National Congress of American Indians, National Indian Health Board, Nisqually Indian
Tribe, Northwest Portland Area Indian Health Board, Nottawaseppi Huron Band of the Potawatomi, Oneida Nation,
Pechanga Band of Luiseño Indians, Poarch Band of Creek Indians, Prairie Island Indian Community, Puyallup Tribe
of Indians, Redding Rancheria, Saint Regis Mohawk Tribe, Salt River Pima-Maricopa Indian Community, San
Pasqual Band of Mission Indians, Santa Rosa Rancheria Tachi Yokut Tribe, Santa Ynez Band of Chumash Mission
Indians, Sault Ste. Marie Tribe of Chippewa Indians, Seminole Tribe of Florida, Shasta Administrative Services,
Suquamish Tribe, Swinomish Indian Tribal Community, Table Mountain Rancheria, Tohono O’odham Nation,
United South and Eastern Tribes Sovereignty Protection Fund, Ute Mountain Ute Tribe, and Winnebago Tribe of
Nebraska.

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See 42 C.F.R. § 136.30(e) (“The calculation of payment by I/T/Us will be based on
determinations under paragraphs (c) and (d) . . . .”); id. § 136.30(f) (“[I]f an amount has been
negotiated with the hospital or its agent by the I/T/U, the I/T/U will pay the lesser of” the amount
determined under subsection (e) or the negotiated amount.); id. § 136.30(g)(1)(“The I/T/U shall
be the payor of last resort under § 136.61 . . . .”). Blue Cross argues that in these subsections, a
“Tribe or Tribal organization carrying out a CHS program” is always the payor and concludes
that this means it must be the Tribe’s CHS program that actually provides the money for CHS
services.
Neither argument provides a satisfactory answer as neither approach clearly defines
“carrying out.” Implicitly, the Tribe argues that a “Tribe or Tribal organization carrying out a
CHS program” is satisfied whenever there is authorization by the CHS program. In contrast,
Blue Cross asserts that “carrying out” a CHS program must entail the use of that program’s
funds, but it offers no case law or other evidence to support that “carrying out” is typically
construed that way. Neither the Tribe nor Blue Cross explains how they reached these
constructions.
The proper beginning point is the text of the regulation. We apply the traditional tools of
construction to decipher the meaning of the regulation. We first examine definitions of “carrying
out.” The term is undefined in the regulation. As with statutory language, we therefore must
“give the term its ordinary meaning.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 566
(2012). The Oxford English Dictionary offers as a relevant definition of “carry out”: “To bring
(something) to completion or fruition; to bring to a conclusion” and “to put
(something) into action or practice; to cause (something) to be implemented; to undertake.” To
carry out, Oxford English Dictionary, https://www.oed.com/view/Entry/28252?rskey
=kjPfNF&result=1&isAdvanced=false#eid1333136834 (last visited Apr. 20, 2022). Merriam-
Webster provides a similar entry, defining to “carry out” as “to put into execution” or “to bring
to a successful issue.” Carry out, Merriam-Webster's Unabridged Dictionary,
https://unabridged.merriam-webster.com/unabridged/carry%20out (last visited Apr. 20, 2022).
Notably, neither definition suggests that “executing” or “undertaking” something requires the
expenditure of funds, as the district court did in construing § 136.30(b). Instead, “a Tribe or

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Tribal organization carrying out a CHS program” may be a Tribe taking actions to implement its
CHS program, whether through authorizing care or expending funds allocated from the IHS.
A comparison to the first clause in § 136.30(b) is instructive. The regulatory language
states that MLR will apply to care “authorized . . . by a contract health service (CHS) program of
the Indian Health Service.” 42 C.F.R. § 136.30(b) In contrast, the second and disputed clause—
“a Tribe or tribal organization carrying out a CHS program of the IHS”—does not mirror this
language emphasizing the direct role of the CHS program. Id. Instead of stating that the
authorizing authority is a “CHS program of a Tribe or tribal organization” in keeping with the
pattern of the first clause, the language states that the authorizing group is a “Tribe or tribal
organization.” Id. “[C]arrying out a CHS program” is employed as a descriptor of the tribe or
tribal organization. Id. “When an agency includes a requirement in only one section of a
regulation, we presume the exclusion from the remainder of the regulation to be intentional.”
Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). Other provisions in 42 C.F.R.
§ 136.30 undermine a reading that CHS funds are necessary to receiving Medicare-like rates.
The payment methodology sections refer to “payment[s] by I/T/Us” and what an I/T/U shall pay,
rather than what CHS program funds or a Tribal CHS program itself must pay. Id. § 136.30(e).
Given that the regulation makes a “Tribal or Tribal organization” the primary actor, rather than
the Tribe’s CHS program itself, a direct tie to the CHS program—such as the exclusive use of
funds earmarked for CHS expenses—is not required.
The statutory authority on which the regulation rests does not challenge this construction.
The Medicare Modernization Act requires Medicare-participating hospitals to participate in “the
contract health services program funded by the Indian Health Service and operated by the Indian
Health Service, an Indian Tribe, or tribal organization” and accept Medicare-like rates as
payment for “items and services that are covered under such program and furnished to an
individual eligible for such items and services under such program.” 42 U.S.C.
§ 1395cc(a)(1)(U)(i). The language identifies the Contract Health Services program as “funded
by the Indian Health Service,” but it does not predicate the eligibility for Medicare-like rates on a
Tribe or its CHS program using IHS funds. Within the greater framework of American Indian
healthcare, this makes good sense. Federal law authorizes tribes to go beyond IHS funding to

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 14
cover CHS care. See, e.g., 25 U.S.C. § 1621f(a)(1) (allowing the use of other sources of income
for coverage of contract health services); 25 U.S.C. § 1641(d)(2)(A) (permitting tribes to use
Medicare and Medicaid income for “coverage for a service or service [sic] within a contract
health service delivery area”); 25 U.S.C. § 5325(m) (authorizing tribes to use income earned
through a self-determination contract “to further the general purposes of the contract”).
An “authorization” trigger also fits within the regulatory regime more obviously than a
CHS funding requirement. Federal regulations contemplate that a tribe’s CHS program might
authorize a service before determining the source of payment for that service. The CHS program
is a payor of last resort, meaning that a provider must exhaust alternative sources of payment
before the CHS program is required to pay. 25 U.S.C. § 1623(b); 42 C.F.R. § 136.61. As the
Amici point out, an authorization trigger for MLR allows tribes to coordinate benefits to
conserve tribal funds. If private health insurance covers only part of the cost of CHS authorized
care, for example, regulations require the tribe to pay only for the remaining amount. 42 C.F.R.
§ 136.30(g)(2). With self-funded plans like those at issue here, an MLR cap helps preserve tribal
assets and, ultimately, CHS funds.4
The district court’s conclusion that the regulatory language mandates use of CHS funds
was in error. Instead, “carrying out,” understood within the context of the regulation, the statute,
and ordinary meaning, means that the Tribe or Tribal organization must be authorizing the care
in furtherance of its Contract Health Services program.
Although arguing that the plain language of the regulation supports its interpretation,
Blue Cross also relies on selected parts of guidance documents that it argues support its narrower
4The concurring opinion asserts that the Tribe’s counsel argued in rebuttal that the Tribe sought MLR
pricing only “for care for tribal members, authorized by CHS, and paid for from a bucket of funding that included
some CHS dollars.” Conc. at 24 (emphasis added). That is not the only plausible interpretation of counsel’s
argument. The Tribe’s counsel explained that the money given to Blue Cross for the claims at issue “came from
[his] client for the CHS program,” which could mean that the Tribe was allocating its funds—regardless of source—
to pay for CHS care, not necessarily that there was funding earmarked as “CHS dollars.” Oral Argument at 1:11:40.
The Tribe’s counsel stated that these were “tribal funds related to the CHS program,” which included some federal
funding. Id. at 1:04:30; see also id. 1:02:45 (“Because our source of funding is not other than CHS funds. CHS
takes advantage of one of these trusts that was set up by the tribe to pay for services for their members. The CHS
program exists to provide purchased referred care. . . . And we pay for it out of these trust funds that have been
established by the tribe, which include federal dollars. They’re not exclusively federal dollars but they include
federal dollars.”).

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 15
reading of “a Tribe or Tribal organization carrying out a CHS program.” In particular, Blue
Cross emphasizes the IHS’s answers in a 2008 “FAQ” document that address a connection
between CHS funds and the MLR payments. Under a section on Contract Health Services,
question 10 of the 2008 FAQ states:
We use Third Party funds to pay costs for certain members who do not
qualify for CHS funding. Do the Medicare-like rates apply to these services?
No. Medicare-like rates only apply for services payable through the CHS
program, for individuals who are eligible for CHS coverage, as defined by 42
CFR Part 136.
(R. 173-27, CHS Services FAQs, PageID 9276) A later question explains that the services
“payable at Medicare-like rates . . . must be provided to a CHS eligible individual and paid by an
IHS or tribal CHS program or by an Urban Indian program.” (Id., PageID 9278)
As a threshold matter, because we conclude that the plain meaning of the regulatory
language does not impose a requirement for the exclusive use of CHS funds for MLR payment
eligibility, we need not consider agency guidance. However, it is worth noting that the agency
guidance is not as clear cut as Blue Cross claims.
Indeed, some of the 2008 FAQs support the Tribe’s argument. FAQ No. 17 explains that
if a tribe uses tribal funds to pay for patients outside its designated area, it may still pay
Medicare-like rates “as long as they meet CHS eligibility requirements within the regulations
and services are authorized by the CHS program.” (R. 173-27, PageID 9277) Similarly, FAQ
No. 28 states that a local hospital must accept MLR “if the local hospital is a Medicare
participating hospital and if [the Tribal] CHS program has authorized payment for the services.”
(Id., PageID 9278) The FAQ states that the CHS program must “authorize” the payment, but it
does not state that the payment must come directly from the CHS program itself. Other FAQ
answers follow this pattern of explaining that Medicare-like rates apply as long as the individual
seeking treatment is eligible for CHS and the CHS program authorizes the care. These guidance
documents do not provide a definitive answer, nor can they overcome the plain language of the
regulation.

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 16
We offer a final word about the reach of this holding. One of the healthcare plans at
issue in this case, the Employee Plan, covers Tribal employees regardless of whether they are
members of the Saginaw Chippewa Indian Tribe. Our holding should not be construed as saying
that MLR is available for care to all Employee Plan participants. The plain language of § 136.30
does not extend MLR to those non-tribal employees simply because other participants in that
healthcare plan are eligible for CHS care. Nor is MLR available for all care that a Tribe or
Tribal organization authorizes. Instead, as discussed above, that authorized care must be limited
to care involved in “carrying out a CHS program.” Put simply, MLR payments are available
only for authorized CHS care. “Authorization” carries a specific meaning in the regulatory
language, see 42 C.F.R. § 136.24. Care is “authorized” only after the medical care provider
“notif[ies] the appropriate ordering official of the need for services” and gives “information
necessary to determine the relative medical need for the services and the individual’s eligibility.”
Id. § 136.24(b). Eligibility, in turn, is determined according to 42 C.F.R. § 136.12. Those
eligible for IHS programs—including CHS care—are “persons of Indian descent belonging to
the Indian community serviced by the local facilities and program,” usually shown through
evidence that an individual is “regarded as an Indian by the community,” such as tribal
membership, enrollment, ownership of tribal property, and participation in tribal affairs. Id.
§ 136.12(a). Also covered are non-Indian women who are pregnant with “an eligible Indian’s
child” during their pregnancies and postpartum periods and “non-Indian members of an eligible
Indian’s household” if deemed “necessary to control acute infectious disease or a public health
hazard.” Id. These related sections limit the availability of MLR only to healthcare services
provided to eligible individuals with the requisite authorization. Even if it may be
administratively difficult to parse out those eligible for such rates under the Employee Plan, the
plain regulatory language requires it. Although the parties’ briefing was not a model of clarity
on this point, the Tribe explained at oral argument that it does not and cannot seek MLR for non-
member employees. See, e.g., Oral Argument at 14:32. Our opinion is consistent with that
limitation.
We offer a final note on the parties’ debate over the role of the Indian canon of
construction. The Supreme Court has instructed that “statutes are to be construed liberally in
favor of the Indians, with ambiguous provisions interpreted to their benefit.” Montana v.

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 17
Blackfeet Tribe, 471 U.S. 759, 766 (1985). The canon is also embodied in the Indian Self-
Determination and Education Assistance Act of 1975, which instructs that all provisions of the
statute and agreements entered under it are to “be liberally construed for the benefit of the Indian
Tribe” and “any ambiguity shall be resolved in favor of the Indian Tribe.” 25 U.S.C. §§ 5321(g),
5324(b), 5392(f). The circuits are split on whether and how the Indian canon of construction
applies to regulatory interpretation. Compare Ramah Navajo Chapter v. Lujan, 112 F.3d 1455,
1462 (10th Cir. 1997) (“[T]he canon of construction favoring Native Americans controls over the
more general rule of deference to agency interpretations of ambiguous statutes.”) and Muscogee
(Creek) Nation v. Hodel, 851 F.2d 1439, 144–45 (D.C. Cir. 1988), cert. denied, 488 U.S. 1010
(1989) (construing legislation in favor of a tribe rather than adopt an agency’s interpretation),
with Haynes v. United States, 891 F.2d 235, 239 (9th Cir. 1989) (applying Chevron deference
over the canon favoring native tribes). We have not clarified how this “directive to favor tribes”
is prioritized with respect to other canons of statutory or regulatory authority. Memphis Biofuels,
LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 921 (6th Cir. 2009). We have explained,
though, that “[t]he force of this interpretative canon can be overcome only when ‘other
circumstances evidencing congressional intent’ demonstrate that ‘the statute is “fairly capable”
of two interpretations . . . [or] that the [conflicting] interpretation is fairly “possible.”’” Grand
Traverse Band of Ottawa & Chippewa Indians v. Off. of U.S. Atty. for W. Div. of Mich., 369 F.3d
960, 971 (6th Cir. 2004) (alterations in original) (quoting Chickasaw Nation v. United States,
534 U.S. 84, 94 (2001)). Given that the plain language of the regulation controls our
construction, we need not rely on the Indian canon of construction to conclude that the regulatory
language plainly favors the Tribe’s interpretation that no CHS funding requirement exists.
C. The Remaining Legal and Factual Disputes
Our conclusion that the district court erred in reading into the regulatory text a
requirement that the Tribe use CHS funds to pay for MLR-eligible care does not resolve this
appeal. Blue Cross argues that there are several alternative grounds on which we should affirm
the district court’s judgment. We group these arguments according to relevant issue.

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 18
In the prior appeal in this case, we recognized that the Tribe had stated a fiduciary duty
claim under ERISA against Blue Cross regarding the Employee Plan and a common law
fiduciary duty claim for the Member Plan. ERISA was enacted “to protect contractually defined
benefits,” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989), and creates a
fiduciary relationship between the plan provider and the insured group. Under ERISA, “a person
is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or
discretionary control respecting management of such plan or exercises any authority or control
respecting management or disposition of its assets, . . . or (iii) he has any discretionary authority
or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A). “An
ERISA fiduciary must discharge his responsibility ‘with the care, skill, prudence, and diligence’
that a prudent person ‘acting in a like capacity and familiar with such matters’ would use.”
Tibble v. Edison Inst., 135 S. Ct. 1823, 128 (2015) (citations omitted). This duty “derive[s] from
the common law of trusts.” Id.
Three primary duties attach to fiduciaries: “(1) the duty of loyalty, which requires ‘all
decisions regarding an ERISA plan . . . be made with an eye single to the interests of the
participants and beneficiaries’; (2) the ‘prudent person fiduciary obligation,’ which requires a
plan fiduciary to act with the ‘care, skill, prudence, and diligence of a prudent person acting
under similar circumstances,’ and (3) the exclusive benefit rule, which requires a fiduciary to ‘act
for the exclusive purpose of providing benefits to plan participants.’” Pipefitters Local 636 Ins.
Fund v. Blue Cross & Blue Shield of Mich., 722 F.3d 861, 867 (6th Cir. 2013) (omission in
original) (quoting James v. Pirelli Armstrong Tire Corp., 305 F.3d 349, 448–49 (6th Cir. 2002)).
Our prior decision explained that “[f]ailing to preserve assets can be actionable under ERISA,”
which the Tribe had alleged. Saginaw Chippewa Indian Tribe of Mich., 748 F. App’x at 20–21
(citing DeLuca v. Blue Cross Blue Shield of Mich., 628 F.3d 743, 747–48 (6th Cir. 2010)).
Although Blue Cross may have violated a fiduciary duty in failing to seek MLR,
significant questions of law and material fact remain as to whether Blue Cross’s decision not to
seek MLR amounted to “failing to preserve assets” of the Member and Employee Plans or a
breach of its other fiduciary duties. Blue Cross asserts that its actions merely amounted to
adherence to the terms of the Member and Employee Plans’ contracts, which it argues means

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 19
there was no fiduciary act. Similarly, Blue Cross raises factual issues—such as “it lacked the
necessary information to pursue MLR for any Employee Plan claims”—that it asserts show it
could not have breached a fiduciary duty. The district court did not address this issue in the first
instance, and the record before us suggests that the analysis of how the Administrative Services
Contract defined Blue Cross’s duties, what information was necessary for Blue Cross to insist on
Medicare-like rates, and which party had the responsibility to seek or provide that information is
best accomplished below.
Similar disputes of law and material fact as to whether Blue Cross violated the Michigan
Health Care False Claim Act (HCFCA) exist. The district court did not fully consider whether
Blue Cross is or could be liable under the HCFCA because it concluded that Blue Cross had no
obligation to seek MLR under the Member and Employee Plans. Blue Cross and the Tribe
dispute whether Blue Cross “presented” false claims as required under the Act or whether the
claims were even false. Again, the district court did not address this issue, and a remand is
necessary for the district court to consider it in the first instance.
A final dispute of material fact exists as to the application of statutes of limitations to the
Tribe’s claims. Blue Cross argues that the statutes of limitations applicable to both ERISA and
Michigan HCFCA provide a separate basis for rejecting the Tribe’s claims under those laws.
ERISA requires that a plaintiff file suit within three years of acquiring “actual knowledge of the
breach or violation.” 29 U.S.C. § 1113; Durand v. Hanover Ins. Grp., Inc., 806 F.3d 367, 376
(6th Cir. 2015) (“[A]n accelerated three-year limitations period is triggered as of ‘the earliest
date on which the plaintiff had actual knowledge of the breach.’” (quoting 29 U.S.C. § 1113)).
However, a plaintiff will have until “six years after the date of discovery of such breach or
violation” if there was “fraud or concealment.” Id. Michigan law imposes a similar statute of
limitations. A breach of fiduciary duty claim “accrues when the beneficiary knew or should have
known of the breach.” Prentis Family Found. v. Barbara Ann Karmanos Cancer Inst., 698 N.W.
2d 900 (Mich. App. Ct. 2005) (per curiam) (quoting Bay Mills Indian Cmty. v. Michigan,
626 N.W. 2d 169 (Mich. Ct. App. 2001)).

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 20
Resolving the statute of limitations issue requires significant analysis of the record and
application of the law to the facts. Blue Cross asserts that the record supports concluding that the
Tribe was aware of Blue Cross’s decision not to insist on MLR to Medicare-participating
hospitals as far back as 2008, which would put the Tribe’s claims outside of the statute of
limitations. The Tribe points to other parts of the record to support its argument that Blue
Cross’s actions amount to “fraud or concealment” such that the relevant date for the statute of
limitations is substantially later. The district court did not reach this issue in its opinion below
because it concluded that the MLR regulations were inapplicable to services under the Employee
and Member Plans. Given the need to parse the complicated factual record to determine when the
Tribe had actual knowledge of the breach and whether Blue Cross’s actions amounted to fraud or
concealment, we remand this issue to the district court to decide in the first instance.
On remand, the district court must proceed with the triable and threshold factual question
of whether the Tribe’s CHS program authorized the care for which they assert they were entitled
to pay Medicare-like rates. If the record shows that the Tribe’s CHS program authorized this
care, the court should then move on to consider Blue Cross’s alternative arguments discussed in
this section.
III. CONCLUSION
For the reasons stated above, we REVERSE the district court’s grant of summary
judgment to Blue Cross Blue Shield of Michigan and REMAND for further proceedings
consistent with this opinion.

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 21
__________________________________________________
CONCURRING IN PART AND IN THE JUDGMENT
__________________________________________________
ROGERS, Circuit Judge, concurring in the judgment. I concur in the judgment and in
Parts I and II of the majority opinion except for Part II.B. Remand is warranted, but not for the
reasons given in Part II.B of the majority opinion.
I.
SCIT’s opening brief is limited to a single argument that, with respect, simply does not
hold up. SCIT’s brief argues that the MLR regulation, 42 C.F.R. § 136.30(b), requires that
payments made under its Blue Cross-administered plans must be subject to the MLR payment
limits. It is a plain-meaning argument, and while SCIT supplements the argument with
contextual analysis and canons of construction, all of the secondary arguments are made in
support of SCIT’s primary assertion regarding the meaning of § 136.30(b). Although SCIT’s
factual statement makes various contentions concerning Blue Cross’s practices, these practices
do not affect the meaning of the regulation. The district court treated the case as turning entirely
on the rejection of SCIT’s interpretation of § 136.30(b).
On that one specific question of the meaning of the regulation in question, the district
court was correct in holding that the regulation does not extend MLR to payments owed to
hospitals for care that was not authorized by CHS. The relevant language is as follows:
The payment methodology under this section applies to all levels of care
furnished by a Medicare-participating hospital . . . that is authorized . . . by a
Tribe or Tribal organization carrying out a CHS program of the IHS under the
Indian Self-Determination and Education Assistance Act.
42 C.F.R. § 136.30(b). Even shorter, the language states, “The payment methodology under this
section applies to . . . care furnished by a . . . hospital . . . that is authorized . . . by a Tribe . . .
carrying out a CHS program.” In context, this language can fairly be read only to refer to
“care . . . that is authorized . . .” by a Tribe rather than “a . . . hospital . . . that is authorized” by a
Tribe. This is because “by a Tribe” is limited by the immediately following words “carrying out

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 22
a CHS program.” The Tribe in carrying out the CHS program is not authorizing a hospital to do
anything; instead it is authorizing care furnished by a hospital. If the language had been
intended to refer to authorizing a hospital to do something, the regulation would have stated
“care furnished by a hospital that is authorized by a Tribe to carry out a CHS program.” In
contrast, we have what the regulation says here: care authorized “by a Tribe . . . carrying out a
CHS program.” Consequently, “authorized” in the regulation must necessarily refer to “care”
that is authorized by a Tribe, not a “hospital” authorized by a Tribe.
The text at issue is also cabined by limiting language: the regulation does not apply to
any and all care authorized by a Tribe. Instead, the care to which the payment methodology
applies is limited to care authorized by a Tribe carrying out a CHS program. The natural
reading of “a Tribe . . . carrying out a CHS program” is that the relevant care was undertaken as
part of a Tribe’s CHS program. If the regulation was intended to grant MLR pricing to a Tribe
while it executes any healthcare program, there would be no reason to include the limiting
language that specifically states that the regulation only applies to the CHS program. In short,
the regulatory language at issue in this case simply cannot be parsed to apply the payment
methodology to care that is not authorized by a Tribe in carrying out a CHS program, such as
care authorized by a Tribe carrying out some other program.
Nothing in the context of the promulgation of the regulation suggests any broader or
unusual meaning of the language. For instance, the title of the regulation is “Payment to
Medicare-participating hospitals for authorized Contract Health Services.” 42 C.F.R. § 136.30.
As the district court explained, the Conference Report for the legislation explained that:
The amendment would prohibit hospitals that participate in Medicare and that
provide Medicare covered inpatient hospital services under the contract health
services program funded by the Indian Health Services from charging more than
the Medicare established rates for these services. This provision would apply to
contract health services programs operated by the Indian Health Service, an
Indian tribe or tribal organization or an urban Indian organization.
H.R. Rep. No. 108-391, at 656 (2003). Furthermore, the district court noted that a post-
promulgation letter from the Surgeon General’s office announcing the regulation stated that the
MLR rule “includes all IHS-funded health care programs,” and that the regulation “will reduce

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 23
contract health expenses for hospital services and enable Indian health programs to use the
resulting savings to increase services to their beneficiaries.” Letter to Tribal Leaders and Urban
Program Directors (July 19, 2007), https://www.ihs.gov/sites/prc/themes/responsive2017/
display_objects/documents/mlri/Tribal%20Leader%20Letter.pdf (emphasis added).
In response to the reliance by a different district court on certain FAQs that the other
court used to apply MLR to non-CHS plans, the district court in this case referred to other FAQs
in the same IHS document that clearly limited the application of MLR to CHS-funded care. For
example, the response to several questions emphasized that MLR only applies if CHS pays for
the relevant care:
10. We use Third Party funds to pay costs for certain members who do not
qualify for CHS funding. Do the Medicare-like rates apply for these services?
No. Medicare-like rates only apply for services payable through the CHS
program, for individuals who are eligible for CHS coverage, as defined by
42 CFR Part 136.
11. We use Third Party funds to add to our CHS funds. Do Medicare-like rates
apply for these services?
Yes, as long as the CHS pays for the services and follows the regulations that
apply to CHS and client eligibility (42 CFR Part 136).
. . .
29. What services are payable at Medicare-like rates?
. . . [T]he service or supply must be provided to a CHS eligible individual and
paid by an IHS or tribal CHS program or by an Urban Indian program.
Medicare-Like Rates for CHS Services (Consolidated) FAQ (updated May 10, 2008),
https://www.ihs.gov/sites/prc/themes/responsive2017/display_objects/documents/mlri/MLR%20
FAQs.pdf (emphasis added). Even if we generously interpret the FAQs in SCIT’s favor, the
FAQ document taken as a whole has, at best, elements that support both parties’ arguments.
Because the meaning of the regulation is plain, we need not resort to canons of
construction such as the canon in favor of an agency’s interpretation of its own regulation or the
canon of construction in favor of Indian tribes.

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al. v. Blue Cross Blue Shield of Mich.
Page 24
II.
At oral argument, however, SCIT focused on a different argument instead of on its
interpretation of the regulation. Although the regulatory interpretation urged in SCIT’s brief
would appear logically to extend MLR to all employees under the employee plan, including
employees who are not members of the tribe, SCIT counsel at argument emphasized that its case
concerned only healthcare for tribal members. SCIT counsel repeatedly stated that he was “not
seeking MLR” for non-member employees, and also added that non-member employees have
“nothing to do with this case.” See, e.g., Oral Argument at 14:32. Then, in response to a
question during rebuttal about the strength of SCIT’s plain-meaning argument, SCIT counsel
argued that it made no difference, because SCIT was arguing that it was entitled to MLR only for
care for tribal members, authorized by the CHS program, and paid for from a bucket of funding
that included some CHS dollars. See Oral Argument at 1:11:40.1 SCIT counsel stated that “that
verb, ‘authorized by,’ makes it necessary that the person has gone to the CHS program to get
approval in the first place, and so that means the person is a member, they are entitled to be part
of the CHS program . . . .” Oral Argument at 1:11:43. In response to the follow-up question of
whether the regulation also required the use of at least some CHS funding, counsel responded
“yes,” and explained that “every dollar that went to Blue Cross, that Blue Cross then took
custody and control of [to pay claims] . . . came from my client for the CHS program.”2 Oral
Argument at 1:12:03.
SCIT later argued in its rebuttal that the district court disregarded this factual argument
by denying all relief based on a legal determination that did not entirely dispose of the case—
namely, the district court’s assumption that SCIT was seeking MLR pricing for claims paid for
using non-CHS funding, when in reality all the relevant claims were claims for care for tribal
members, authorized by CHS, and paid for from a bucket of funding that included CHS dollars.
See Oral Argument at 1:11:40. SCIT counsel stated that if the case were remanded, at trial he
1Our judgment today should not be read to reject these concessions.
2Similarly, SCIT counsel also stated “the people we’re talking about are tribal members who went to a
Medicare-participating hospital after they were authorized by the CHS program,” Oral Argument at 59:15, the
relevant money is “controlled by the CHS program,” Oral Argument at 59:55, and Blue Cross “was hired to
administer” the relevant claims from a pool of money that includes federal CHS dollars, Oral Argument at 1:03:35.

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 25
would have to “prove that, in fact, each claim involved a tribal member who was authorized.”
Oral Argument at 1:14:05. In other words, according to SCIT, the district court’s fundamental
error was a factual one, not a legal one: the district court (according to SCIT at oral argument)
denied relief even for tribal members whose care was authorized by the CHS program and whose
care was paid for from a pool of money that included CHS dollars. Oral Argument at 1:14:38. If
so, the argument goes, dismissal of SCIT’s claims was not warranted even under Blue Cross’s
interpretation of the regulation, which limits MLR pricing to CHS-authorized care. If SCIT’s
factual argument is based on an accurate reading of the record, then SCIT has a strong argument
that the district court erred in concluding that the court’s interpretation of the regulation was
sufficient to dismiss SCIT’s case. Unfortunately, the parties have not provided sufficient
briefing for us to resolve the factual issue. Remand is accordingly warranted so that the district
court may address SCIT’s factual argument, without relying on the rather questionable plain
meaning contentions to which SCIT devoted the entirety of the argument portion of its brief on
appeal.
The question, to be clear, is whether Blue Cross undertook the administration of CHS-
authorized coverage, and if so, whether Blue Cross applied MLR to that coverage. This court’s
questioning at oral argument went directly to whether Blue Cross has undertaken in part to
administer CHS coverage. If Blue Cross did so, then the district court’s total dismissal of the
case was unwarranted by its determination that MLR applied only to CHS-authorized coverage.
Thus on remand the district court must examine the facts that the parties still dispute—
whether Blue Cross was in any way responsible for administering the CHS program, which was
described by SCIT’s counsel in its rebuttal argument as claims for care for tribal members,
authorized by CHS, and paid for from a pool of money that included some CHS dollars. Even
after oral argument, the parties cannot agree on the basic facts underlying SCIT’s rebuttal
argument. Counsel for Blue Cross submitted an additional citation after oral argument, stating
that counsel for SCIT falsely “represented that BCBSM paid claims for the Employee and
Member Plans using funds from the Tribe’s CHS Program.” Blue Cross asserted that “[t]he
undisputed record is clear; BCBSM did not use CHS or IHS funds to pay claims for the
Employee or Member plan.” The factual murkiness here can be clarified on remand. If SCIT’s

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No. 21-1226 Saginaw Chippewa Indian Tribe, et
al. v. Blue Cross Blue Shield of Mich.
Page 26
version of the facts is correct and Blue Cross did in fact administer CHS-authorized claims that
were paid for from a pool of funding that included CHS dollars, then the court should proceed to
address the alternative arguments by Blue Cross, including good faith and the statute of
limitations.

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