Benally, Bessie v. Navajo Area Director, 10 IBIA 221 (1982)
| Court | Interior Board of Indian Appeals |
Appeal from a decision of the Navajo Area Director, Bureau of Indian Affairs, terminating financial assistance to appellant.
Reversed.
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Board of Indian Appeals: Jurisdiction
Under 25 CFR 2.19(a) and (b), when the Commissioner of Indian Affairs, or the official of the BIA exercising the Commissioner's review authority under 25 CFR Part 2, does not issue a decision within 30 days of the filing of all pleadings, the Board of Indian Appeals acquires jurisdiction over the case.
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Administrative Procedure: Rulemaking--Indians: Welfare--Regulations: Publication
Under 5 U.S.C. § 552(a)(1) (1976) and the Supreme Court's holding in Morton v. Ruiz, 415 U.S. 199 (1974), an individual may not be deprived of benefits solely on the basis of an eligibility standard published only in the BIA manual.
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Indians: Welfare
Under the system established in the BIA manual, custodial care is part of the general assistance program, and an individual must first be found eligible for general assistance before he or she can be considered for custodial care assistance.
IBIA 82-16-A
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Indians: Welfare
Under the provisions of the BIA manual, an individual is eligible for custodial care assistance even though the necessary care may be provided in the individual's home.
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Indians: Welfare
When, due to age, infirmity, or physical or mental impairment, an individual requires any type or amount of assistance in daily living, that person qualifies for custodial care under the provisions of 66 BIAM 5.10A.
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Indians: Welfare
Under 66 BIAM 5.10D(2), any continuing care arrangements necessary for an individual who has been in a custodial care institution must be prepared before that individual is discharged from the institution.
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Indians: Welfare
The decision to terminate custodial care for an individual must be documented as based upon physical or mental improvement, or upon an initial erroneous determination of the individual's condition.
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Rules of Practice: Appeals: Effect of
Under 25 CFR 2.3(b) and 43 CFR 4.21(a), a decision which is subject to review by a higher Departmental official is not effective during the appeal period or during the pendency of an appeal, unless the BIA official to whom an appeal is made, the Board, or the Director of the Office of Hearings and Appeals determines that the public interest requires the decision to be made effective immediately.
APPEARANCES: Stephen T. LeCuyer, Esq., DNA-People's Legal Services, Inc., Chinle, Arizona, for appellant; Penny Coleman, Esq., Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., for appellee. Counsel to the Board: Kathryn A. Lynn.
IBIA 82-16-A
OPINION BY CHIEF ADMINISTRATIVE JUDGE HORTON
Appellant Bessie Benally, a Navajo Indian residing at the Fort Defiance Agency, Fort Defiance, Arizona (C #74,710), has sought review of a July 24, 1981, decision of the Navajo Area Director, Bureau of Indian Affairs (BIA) (appellee), terminating her financial assistance. This appeal was filed jointly with 19 other appeals from Navajo residents of the Fort Defiance and Chinle Agencies, Navajo Area Office. 1/ Appellant had been receiving care and training 2/ at Toyei Industries (Toyei), Toyei, Arizona. The decision affirmed that appellant was not eligible for custodial care under the provisions of 66 BIAM (Bureau of Indian Affairs Manual) 5.10A because she did not require "care from others in his or her daily living" "due to age, infirmity, physical or mental impairment" (66 BIAM 5.10A). 3/
History of BIA Involvement with Toyei Industries
The following facts are adduced from appellant's undisputed background statement concerning Toyei Industries. 4/ The institution is located in Toyei, Arizona, within the Navajo Nation. It was established in October 1976 under the administration of the Navajo Tribal Council and the Navajo Division of Education, Department of Navajo Vocational Rehabilitation. Toyei was chartered as a nonprofit organization by the Navajo Tribal Council in August 1979.
Toyei's institutional objectives were to provide comprehensive residential maintenance, work activities, and other support services to mentally and/or physically handicapped adults. These services were intended to help the individual toward semi-independent or independent living by providing training in job and living skills.
It is not apparent from the record when and under what circumstances the BIA Branch of Social Services for the Navajo area first became involved with Toyei. 5/ It appears, however, that at least during fiscal year 1980
_____________________ 1/ One appeal was dismissed at the request of the appellant. Phillip Begay v. Area Director, Navajo Area Office, Bureau of Indian Affairs, 9 IBIA 280 (1982). Decisions relating to the remaining 18 appellants are being separately issued today.
2/ Although appellant notes that both BIA and she use the terms "adult institutional care" and "custodial care" interchangeably to describe the type of assistance she was receiving, see appellant's opening brief of legal issues (hereinafter "opening brief"), the Board does not agree that the terms are synonymous. See text, infra at 10 IBIA 233-34.
3/ According to appellant, and not denied by appellee, every BIA social services client at Toyei from the Fort Defiance and Chinle Agencies was also found by the BIA to be ineligible for custodial care (Opening brief at 37-38).
4/ See opening brief at 1-5, including exhibits cited in that discussion.
5/ Although it is clear from the statements of both parties that the BIA Navajo Area Office Branch of Social Services had a contract with Toyei, no copy of that contract is included, or was sought to be included, in the administrative record.
IBIA 82-16-A
the branch was providing funds to Toyei under a contract in accordance with P.L. 93-638, 88 Stat. 2203, 25 U.S.C. §§ 450-450n (1976), 6/ the Indian Self-Determination and Education Assistance Act. 7/
In the summer of 1980, the branch learned that its fiscal year 1981 appropriation would be reduced and that it would be unable to continue its existing level of funding. After some discussion of how this budgetary problem might be resolved, it was finally determined that the funding for Toyei should be cut entirely. This determination was made on the grounds that Toyei's clients were at the institution primarily for vocational training rather than for residential care. Vocational training was thought not to be part of the functional responsibilities of the Branch of Social Services. As the decision was explained in a memorandum to social services files from the Area Social Worker:
On September 17, 1980, the plan to discontinue funding Toyei Industries was decided as the only alternative. The basis for this decision is that Toyei Industries, Inc., operates a Vocational Training Program for handicapped adults. The fact that people reside there is secondary. It was argued that these clients can function at home and do not need custodial care. The revised plan assumed that the proposed recommendation would take effect October 1, 1980. [8/]
Following the decision to discontinue funding to Toyei, the Branch of Social Services began the procedure of informing appellant and other individuals at Toyei of the termination of funding for their care and training at the institution.
Background of Appellant's Case
The record as constituted 9/ presents no information on appellant predating her receipt of a letter dated October 20, 1980, from the Navajo Area Director. Consequently the record does not show when or for what reason appellant was first referred to Toyei. There is no dispute, however, that while at Toyei appellant was receiving care and training under the contract with the BIA branch of social services.
The October 20, 1980, letter which appellant received informed her that:
[F]inancial assistance to Toyei Industries for your residential care is being terminated because the contract for Fiscal Year 1981 with Branch of Social Services has been declined by the Bureau of Indian Affairs. The reason for declination is that the vocational rehabilitation service at Toyei Industries is
_____________________ 6/ All further citations to U.S.C. are to the 1976 edition.
7/ See Exh. A to opening brief at 2.
8/ See Exh. C to opening brief at 1-2.
9/ As to the composition of the record, see discussion of appellee's motion to reconsider the Board's order of June 28, 1982, infra at 10 IBIA 227.
IBIA 82-16-A
not a functional responsibility of the Branch of Social Services. However, Toyei Industries' application for a contract will be considered by the Bureau of Indian Affairs, Public Law 93-638 Committee for possible funding by BIA Career Development.
You are further informed that all financial assistance for you from BIA Social Services will cease on November 6, 1980. In accordance with 25 CFR 20.30, you have a right to appeal this decision on your assistance. You have until November 6, 1980 to request a hearing on your case.
See, e.g. Exh. E to opening brief.
Appellant requested a hearing on November 3, 1980. On November 24, 1980, the Area Director rescinded the October 20, 1980, termination notice. The second letter sent to appellant stated: "It has been administratively determined that services will continue for you until a complete evaluation can be made of your situation by the Branch of Social Services, Bureau of Indian Affairs." See Exh. I to opening brief.
Following an evaluation by a BIA social worker, conducted in mid-December 1980, appellant was certified not eligible for custodial care. The evaluation form on appellant states that she was born on June 5, 1953, and that although she needs some assistance with cooking, her mother is capable of caring for her, and her self-care potential is "high." The form concludes: "Bessie needs no supervision for her self-care and according to Toyei * * * summary she had completed her training * * * and presently they are assisting with job placement." See Exh. A to Benally...
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