Southcentral Found. v. Alaska Native Tribal Health Consortium

• Decision Date: 20 July 2022
• Docket Number: 3:17-cv-00018-TMB
• Parties: SOUTHCENTRAL FOUNDATION, Plaintiff, v. ALASKA NATIVE TRIBAL HEALTH CONSORTIUM, Defendant.
• Court: U.S. District Court — District of Alaska

SOUTHCENTRAL FOUNDATION, Plaintiff, v. ALASKA NATIVE TRIBAL HEALTH CONSORTIUM, Defendant.

No. 3:17-cv-00018-TMB

United States District Court, D. Alaska

July 20, 2022

ORDER ON SOUTHCENTRAL FOUNDATION'S MOTION FOR SUMMARY JUDGMENT (DKT. 316)

TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on Plaintiff South central Foundation's (“SCF”) Motion for Summary Judgment (the “Motion”).^[1] SCF seeks a court order that provides the following declaratory relief:

1. Defendant Alaska Native Tribal Health Consortium (“ANTHC”) violated Section 325 of the Department of the Interior and Related Agencies Appropriation Act of 1998, Pub. L. No. 105-83, 111 Stat. 1543 (“Section 325”) when it denied SCF all documents and information that SCF, through its Designated Director, deemed necessary for SCF to exercise effectively its governance and participation rights in ANTHC. Section 325 entitles SCF to all documents and information that it, through its Designated Director, deems necessary to exercise these rights. Any ANTHC policy to the contrary violates Section 325 and shall be amended. No ANTHC policy may abridge SCF's right to all documents and information that SCF, through its Designated Director, deems necessary to exercise its governance and participation rights in ANTHC.

2. SCF's entitlement to documents and information under Section 325 includes documents and information and communications subject to the attorney-client privilege attorney work product doctrine, and other similar doctrines (“Privilege”), pursuant to the common interest doctrine. Any ANTHC policy to the contrary violates Section 325 and shall be amended. ANTHC shall enter into a common interest agreement with SCF which shall permit SCF to obtain documents and information ANTHC deems subject to Privilege. No ANTHC policy may abridge SCF's right to documents and information, including documents and information subject to Privilege.

3. For SCF's governance and participation rights to be meaningful, SCF's Designated Director must be able to share documents and information with SCF's Board of Directors, Officers, and legal counsel, subject to their agreement to keep ANTHC documents and information confidential. Any ANTHC policy to the contrary violates Section 325 and shall be amended. No ANTHC policy may reduce the universe of [] SCF persons who may view ANTHC documents and information to a universe that does not include SCF's Board, Officers, and legal counsel.^[2]

ANTHC opposes the Motion both on the merits and on procedural grounds.^[3] Oral argument was held on June 2 2022.^[4] For the following reasons, the Motion at Docket 316 is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

This case is a dispute over what information SCF is entitled to receive from ANTHC in order to “exercise effectively the governance and participation rights” created by section 325 of the Department of the Interior and Related Agencies Appropriation Act of 1998, Pub. L. No. 105-83, 111 Stat. 1543 (“Section 325”).^[5]

A. History of ANTHC

ANTHC was created precisely to avoid impasses, such as the one now before this Court. In the 1990s, Congress intervened after years of negotiations during which over 200 recognized tribes, regional tribal entities, and various other organizations failed to arrive at a consensus for how to manage the Alaska Native Medical Center (“ANMC”).^[6] As a solution to the gridlock, Senator Ted Stevens proposed the creation of a consortium.^[7] So Congress enacted Section 325, and ANTHC was created “to ensure efficient, experienced Alaska Native management and control” of the new ANMC in Anchorage.^[8] By creating ANTHC, Senator Stevens sought to “ensure[] that scarce federal funds will be effectively and efficiently spent on providing high quality health care to Native Alaskans.”^[9]

ANTHC is “governed by a 15-member Board of Directors” (“Board”).^[10] Thirteen of the Board's directors represent specific regional health entities (“RHEs”),^[11] and two Directors represent the “Indian tribes, as defined in 25 U.S.C. 450b(e), and sub-regional tribal organizations which operate health programs not affiliated with the [RHEs] listed above and Indian tribes not receiving health services from any tribal, regional or sub-regional health provider.”^[12] Each of the directors on the Board (“Designated Directors” or “Directors”) are “leaders in the Tribes and Tribal health care organizations that have designated them to serve on ANTHC's Board.”^[13] SCF, as one of the thirteen RHEs and as a Designating Entity,^[14] selects one of the fifteen Designated Directors.^[15]

Section 325 outlines the participation and governance of ANTHC in the following key terms:

(a) Notwithstanding any other provision of law, and except as provided in this section, [thirteen regional tribal health organizations, including Southcentral Foundation] . . . are authorized to form a consortium (hereinafter “the Consortium”) to enter into contracts, compacts, or funding agreements . . . to provide all statewide health services provided by the [IHS] of the [DHHS] through the [ANMC] and the Alaska Area Office. Each specified “regional health entity” shall maintain that status for purposes of participating in the Consortium only so long as it operates a regional health program for the [IHS] under Public Law 93638 (25 U.S.C. 450 et seq.), as amended.

(b) The Consortium shall be governed by a 15-member Board of Directors, which shall be composed of one representative of each regional health entity listed in subsection (a) above, and two additional persons who shall represent Indian tribes, as defined in 25 U.S.C. 450b(e), and sub-regional tribal organizations which operate health programs not affiliated with the regional health entities listed above and Indian tribes not receiving health services from any tribal, regional or subregional health provider. Each member of the Board of Directors shall be entitled to cast one vote. Decisions of the Board of Directors shall be made by consensus whenever possible, and by majority vote in the event that no consensus can be reached.^[16]

Accordingly, by its plain language, Section 325 confers to SCF and the other RHEs governance and participation rights in ANTHC.^[17] In addition, the Ninth Circuit has determined that Section 325 also “necessarily includes an entitlement to information necessary to effectively exercise those rights.”^[18]

B. The Complaints

In January 2017, SCF filed a Complaint seeking declaratory relief.^[19] According to SCF and as relevant here,^[20] ANTHC allegedly violated Section 325 in various ways, including when it took the following actions:

1. Withheld information from the Designating Entities.^[21]

2. Restricted “Designated Directors [from] broadly shar[ing] information with their Designating Entities unless specific permission is sought from and provided by ANTHC.”^[22]

3. Created a Disclosure Policy that “restricts the Designating Entities' ability to access information and materials that are presented to the ANTHC Board of Directors and its committees in executive session and also restricts the Designated Directors' ability to access confidential and privileged ANTHC information.”^[23]

In the Complaint, SCF requested the following specific relief:

1. An order declaring the ANTHC Executive Committee as currently constituted to be contrary to federal law, void and without effect, to the extent any action of the Executive Committee is deemed valid before it is ratified by the full 15-member ANTHC Board, as required by Section 325;

2. An order declaring SCF and the other Designating Entities specified in Section 325 to be participants in the ANTHC consortium under the federal law creating it, entitled to all documents and information necessary to participate in the governance of the consortium, including confidential and/or privileged documents and information, provided SCF and the other Designating Entities agree to maintain the confidentiality of such documents and information;

3. An order declaring that SCF's Designated Directors have an absolute right to documents and information as directors of ANTHC, without limitation or reservation, and a right and duty to convey such documents and information to their Designating Entity, SCF, provided that SCF agrees to maintain the confidentiality of such documents and information;

4. An order declaring that certain Bylaws of ANTHC conflict with federal law and must be amended;

5. An order declaring that the ANTHC Board of Directors Code of Conduct as currently drafted conflicts with federal law and must be amended;

6. An order declaring that the ANTHC Disclosure Policy as currently drafted conflicts with federal law and must be rescinded;

7. An award for the costs of this suit, including attorneys' fees; and

8. Any other relief which this Court deems just and proper.^[24]

After filing an initial Answer, ANTHC sought leave from the Court to amend its Answer and file a counterclaim for declaratory relief.^[25] ANTHC's Complaint asks the Court to dismiss SCF's Complaint, and to declare that “ANTHC [D]irectors have an undivided duty of loyalty to ANTHC” and that “the duty of loyalty requires [D]irectors to identify any potential conflict of interest they may have and, if they cannot share details regarding the potential conflict, to recuse themselves from discussions and votes that involve the potential conflict of interest.”^[26] ANTHC also asks the Court to declare “that, among other restrictions and consistent with the duty of loyalty, ANTHC may restrict the flow of information from directors to their [RHEs] when directors face conflicts of interest, directors have competing duties between ANTHC and the [RHE] that they represent, or such information may be...