415 F.Supp. 652 (D.N.M. 1976), Civ. 74--524, Lewis v. Weinberger

Docket Nº:Civ. 74--524
Citation:415 F.Supp. 652
Party Name:Lewis v. Weinberger
Case Date:May 27, 1976
Court:United States District Courts, 10th Circuit, District of New Mexico

Page 652

415 F.Supp. 652 (D.N.M. 1976)

Arthur LEWIS, Plaintiff,


Caspar WEINBERGER, Secretary of Hew, et al., Defendants.

Gwendolyn LEWIS, Plaintiff,


Caspar WEINBERGER, Secretary of Hew, et al., Defendants.

Civ. Nos. 74--524--b, 74--526--B.

United States District Court, D. New Mexico.

May 27, 1976

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Thomas E. Luebben, Jr., Native American Legal Defense & Ed. Fund, Inc., Albuquerque, N.M., for plaintiffs.

Ruth C. Streeter, Asst. U.S. Atty., Albuquerque, N.M., for defendants.


BRATTON, District Judge.

This action is brought to challenge the validity of the procedure by which the Indian Health Service (IHS) distributes contract medical care. Specifically, plaintiffs attack the IHS policy and practice, as followed in the Albuquerque Area, of denying contract medical care to off-reservation Indians.

The expenditure of federal funds for the conservation of Indian health is authorized by the Snyder Act of 1921. 25 U.S.C.A. s 13 (1974). 1 At present, health care is provided to American Indians and Alaskan Natives by the IHS, which is a part of the United States Public Health Service, Department of Health, Education and Welfare (HEW). 2

The Secretary of HEW has promulgated regulations which govern the delivery of medical care by the IHS, and these regulations are codified at 42 C.F.R., Part 36--Indian Health (1975). 3 Administrative instructions concerning the day-to-day operations of the IHS are compiled in the Indian Health Service Manual, a public document available at IHS offices. 4

The IHS has sought to meet its Indian health care responsibility, in part, by maintaining its own Service Units, including clinics and hospitals, in various areas of the

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United States where substantial numbers of Indians live. 5 Further, certain specialized medical services which are not provided by the IHS Service Units have been made available at non-Indian or outside facilities under contract to the IHS. Health care provided by IHS employees at IHS facilities is called direct care, and the label contract care describes those health services performed at outside facilities pursuant to an arrangement with the IHS.

Criteria have been prescribed for identifying those persons to whom IHS medical care is available. According to the HEW regulations, a person is within the scope of the Indian health and medical service program if: (1) he is of Indian descent; and (2) he belongs to the Indian community served by the local IHS facilities and program. 6 The Indian Health Service Manual prescribes general health care eligibility requirements similar to those found in the regulations. 7

The regulations and the Indian Health Service Manual contain provisions concerning eligibility for contract care, in particular. The regulations state that the availability of contract services to individual Indian beneficiaries will be governed by the terms of the contract. 12 C.F.R. s 36.21 (1975). The pertinent IHS administrative instruction indicates that contract services are available to those who satisfy the eligibility requirements for IHS care in general. 8

The regulations and the Indian Health Service Manual set forth criteria for developing priorities to be followed in allocating limited funds, facilities or personnel for Indian health care. As among individuals within the scope of the program, the regulations state that care and treatment priorities

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are to be based on (1) relative medical need and (2) access to other arrangements for obtaining the necessary care. 42 C.F.R. s 36.12 (1975). The IHS administrative instructions indicate that considerations similar to those set forth in the regulations should govern the determination of priorities for both direct and contract care. 9

Under the IHS policy, as stated in the Indian Health Manual, the responsibility for authorizing or denying contract health care services rests with the Area in which services are rendered. Further, the same policy which is applied to Indians within the Area is to be applied to Indians from another Area. 10

Plaintiff Arthur Lewis is a full-blood, enrolled member of the Choctaw Tribe of Indians from Oklahoma. Plaintiff Gwendolyn Lewis, his wife, is a full-blood, enrolled member of the Wichita Tribe of Indians from Oklahoma. Arthur and Gwendolyn Lewis have lived at Taos, New Mexico, within two miles of the Taos Indian Reservation since 1961. Mr. and Mrs. Lewis are members of federally recognized Indian Tribes, and it has been stipulated that they are fully eligible under the Snyder Act and rules and regulations promulgated thereunder to receive health care from the IHS. Direct medical services have been and continue to be provided to Mr. and Mrs. Lewis at the Santa Fe Service Unit of the IHS. It has been stipulated that persons of Indian descent who present themselves at IHS facilities and identify themselves as members of federally recognized Indian and Alaskan Native communities are eligible to receive direct care at IHS units.

In 1967, it was determined that Arthur Lewis suffered from Hodgkins disease, a form of cancer. In 1967 and in 1968, pursuant to then existing policy, the Albuquerque Area office of the Indian Health Service

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expended its contract care funds to pay for specialized cancer treatments provided to Mr. Lewis at non-IHS facilities. Though Mr. Lewis' cancer is now in remission, it cannot be considered cured.

Gwendolyn Lewis began to suffer internal hemorrhaging from the uterus on or about January 15, 1973. She was admitted to the IHS hospital in Santa Fe, New Mexico, where she received direct medical care for three weeks. At the end of three weeks, plaintiff's condition had seriously deteriorated, and her IHS attending physician rushed her to St. Vincent Hospital in Santa Fe, a non-IHS facility, for emergency surgery necessary to save her life. Because Mrs. Lewis had received IHS-funded contract services in the past, she believed that IHS would pay for her treatment at St. Vincent. After surgery, however, she was informed that she would have to pay the cost. Neither Gwendolyn nor Arthur Lewis can afford to pay the still outstanding balance of the hospital's bill.

By letter dated April 25, 1973, Mr. and Mrs. Lewis were informed by the Albuquerque Area Office of the IHS that they are no longer eligible to receive IHS contract health care for the reason that they are considered so-called off-reservation Indians.

The denial of contract care to Mr. and Mrs. Lewis results from a relatively recent change in IHS policy with regard to contract health care. Under present policy, the IHS, in effect, defines two classes of Indians eligible to receive medical services under the Snyder Act. One class, designated reservation Indians, is considered eligible to receive both direct care and contract care. The other class, designated off-reservation Indians, is considered eligible to receive direct care only.

Neither the distinction between reservation and off-reservation Indians nor the policy-rule that off-reservation Indians are ineligible to receive contract care appears in the relevant statutes, the applicable regulations, or in the Indian Health Manual. The only formal and official statement of present IHS contract care policy is contained in a memorandum called 'Clarification and Explanation of IHS Policy on contract Health Services.' This memorandum, available at IHS offices, was dated April 18, 1973, and was sent from the IHS Director to Headquarters Staff Offices, Area Directors, and Program Officers of the IHS and to National Indian Health Board members. The operative portion of the memorandum reads as follows:

'Many Indian people choose to leave those areas in which IHS health services delivery systems are maintained, to make their homes in places where health resources and programs serving the general public are located and are accessible to the Indian people on the same basis as to other citizens. Therefore, under the present level of contract funding, such Indians are not provided with services which require the expenditure of contract health funds, since they have access to alternative health resources and programs on the same basis as anyone else. This is necessary to conserve funds for contract health services to those who live in the areas served by the IHS health services delivery systems. However, should Indian people who have moved beyond the areas served by the IHS health services delivery systems choose to seek care at an IHS facility, they will receive care to the extent that the facilities, staff, and physical plant can provide it.'

The foregoing statement of policy has been widely implemented in various IHS Area Offices throughout the country. However, the definitions of reservation and off-reservation Indians, for purposes of identifying those who are and are not eligible for contract health care, differ radically from Area to Area. 11

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It is uncontroverted that under the policy of the Santa Fe Service Unit, which is within the Albuquerque Area of the IHS, only the following categories of persons are eligible to receive contract care: (1) enrolled members of one of the fourteen tribes served by the Santa Fe Service Unit who live on or in close proximity to their reservations; (2) full-time advanced students and their dependents attending schools within the Santa Fe Service Unit who are eligible for contract health services at their home area; and (3) transient Indians who require emergency services and are eligible for contract health services at their home area.

A response to an interrogatory issued by plaintiffs in this lawsuit indicates that it is IHS policy to provide contract health services only to reservation Indians. The response indicates that the IHS defines reservation Indians as persons of Indian descent who are members of a federally recognized tribe and (1) who reside on a...

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