Yankton Sioux Tribe v. US DEPT. OF HLTH. & HUM.

• Citation: 869 F. Supp. 760
• Decision Date: 05 May 1994
• Docket Number: Civ. No. 94-4073.
• Parties: YANKTON SIOUX TRIBE and Joyce Golus, Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES and the United States Indian Health Service, et al., Defendants.
• Court: U.S. District Court — District of South Dakota

869 F. Supp. 760

YANKTON SIOUX TRIBE and Joyce Golus, Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES and the United States Indian Health Service, et al., Defendants.

Civ. No. 94-4073.

United States District Court, D. South Dakota, Southern Division.

May 5, 1994.

Charles T. Abourezk, James G. Abourezk, Abourezk Law Offices, Rapid City, SD, for plaintiffs.

Craig P. Gaumer, U.S. Attorney's Office, Sioux Falls, SD, for defendants.

MEMORANDUM OPINION AND ORDER

PIERSOL, District Judge.

Plaintiffs challenge decisions of the Indian Health Service (IHS) to discontinue inpatient and emergency medical services for members of the Yankton Sioux Tribe at the Wagner IHS Health Care Facility. Plaintiffs seek judicial review of these agency decisions under the Administrative Procedures Act (APA), 5 U.S.C. § 702. They also assert Fifth Amendment due process and equal protection claims.

On April 1, the Court issued a temporary restraining order enjoining Defendants from reducing 24-hour emergency room service and terminating the employment of sixteen medical staff employees at the Wagner IHS Health Care Facility. The Court expedited this matter on its calendar and held a bench trial on Thursday and Friday, April 28 & 29, 1994. The Court received and considered the brief amici curiae of the Rosebud Sioux Tribe and the Santee Sioux Tribe of Nebraska. At the close of the evidence and after hearing arguments of counsel, the Court ruled from the bench and will now more fully explain its oral rulings.

Findings of Fact

The Snyder Act of 1921, 25 U.S.C. § 13, and the Indian Health Care Improvement Act of 1976, 25 U.S.C. §§ 1601-1682, comprise the legislative authority for health care programs and facilities that are administered by the Indian Health Service (IHS), an agency of the Public Health Service within the Department of Health and Human Services. The Wagner IHS Hospital was built in 1937 and by 1981 was listed as number four on the IHS Health Facilities Construction Priority List. In 1982, the General Accounting Office (GAO) issued a report suggesting that IHS should re-evaluate inpatient services at nine locations. As a result of the report, IHS developed a guideline limiting replacement inpatient facilities to those expected to have an average daily patient load (ADPL) of fifteen. IHS did not officially adopt this guideline until 1988 or 1989. At the Wagner IHS facility, however, ADPL was around six, and thus, IHS determined in 1983 that the projected workload did not justify building a replacement facility providing inpatient services.

In fiscal year 1984, Congress appropriated, pursuant to the Indian Health Care Improvement Act, 25 U.S.C. §§ 1601-1682, a lumpsum amount of more than $53 million for IHS construction and renovation projects. (Gov't. ex. B at 4.) According to the testimony, this figure included $360,000 for planning and design of an ambulatory care facility at Wagner, which would provide outpatient and preventative health services. Witnesses testified, and defendants did not dispute, that IHS is obligated to consult with Indian tribes before constructing or renovating health care facilities. During the fiscal year 1985 hearing before the Subcommittee of the Committee on Appropriations of the House of Representatives, Dr. Everett R. Rhoades, Assistant Surgeon General, Director, Indian Health Service, reported that the tribe was not convinced of the value of an outpatient facility and that negotiations toward reaching consensus were ongoing. (Gov't. ex. A, at 2-3.) Upon questioning by the Chairman of the Subcommittee, Mr. Sidney R. Yates, Dr. Rhoades acknowledged that the tribe wanted a hospital, but that IHS believed inpatient care could be purchased on contract at Wagner Community Memorial Hospital.

In July 1986, the Wagner Health Care Facility Program Justification Document (PJD) was approved by Dr. Rhoades; John H. Kelso, Acting Administrator, Health Resources and Services Administration; and Robert E. Windom, M.D., Assistant Secretary for Health. (Pl. ex. 1.) It authorized construction of a new ambulatory care facility, and provided that inpatient services would be phased out by January 1, 1990, because of the availability of alternative inpatient facilities at the nearby Wagner Community Memorial Hospital and at other regional hospitals, including Sacred Heart Hospital in Yankton, South Dakota. Dr. Richard Olson, Director of Patient Care Professional Affairs in the Office of Health Programs at IHS headquarters, testified that 24-hour emergency room services were to be phased out at the Wagner IHS facility, along with the inpatient services. The PJD also provided for certain contingencies:

The IHS Aberdeen Area Office will assure during contract negotiations for inpatient care that the contracting hospital is JCAHO Joint Commission on Accreditation of Health Care Organizations accredited and will provide care at least comparable to IHS facilities; grants IHS medical personnel staff privileges; will allow patient care surveillance; and that Indians be appointed to the Board of Directors.

(Pl. ex. 1 at 4.)

Dr. Terry Sloan, former Aberdeen Area Director from November 1984 to March 1992, testified that preparation of a PJD is a complicated process that involves direct negotiation with the tribe. He testified that, by signing the PJD, high-level officials approved of the plan, including the PJD's provision that inpatient services at the Wagner IHS facility would be phased out by January 1, 1990. He further testified it was his understanding that the Wagner IHS inpatient facility could not be closed until the above-quoted contingencies included in the PJD were met. Dr. Olson testified, however, that the contingencies were required to be met during the process of contracting for inpatient services, not before closing the Wagner IHS inpatient facility. In any event, witnesses testified, and the Court finds, that the contingencies have not been met to date. Officials of the Wagner Community Memorial Hospital have not signed a contract to provide inpatient services for tribal patients, although that hospital is providing contract care for tribal members. Inpatient services at the Wagner IHS facility ended on November 16, 1992. Dr. Sloan testified that the Wagner Community Memorial Hospital is not JCAHO accredited, while the Wagner IHS facility was among the top ten hospitals accredited by JCAHO. No Indians have been appointed to the Wagner Community Memorial Hospital Board of Directors, and patient care surveillance is not permitted. Although Wagner Community Memorial Hospital granted IHS physicians staff privileges, the IHS physicians resigned those privileges in protest of Wagner Community's policy that it will not treat tribal members who are suffering from alcohol-related conditions. Vern Donnell, Service Unit Director, testified that forty percent of patients treated by Wagner IHS have a history of alcoholism.

The evidence indicates that in 1983 the IHS Aberdeen Area Office notified Mr. Leonard Hare, Jr., Chairman of the Health Board of the Yankton Sioux Tribe, that IHS intended to build an ambulatory care facility and phase out the existing inpatient services at the Wagner IHS hospital. Dr. Sloan, Dr. Olson, and Vern Donnell all testified that IHS administrators participated in meetings with officials of the tribe and the Wagner Community Memorial Hospital regarding discontinuation of inpatient services at the Wagner IHS facility. Dr. Sloan testified, however, that he did not give the tribe official notice, nor did he receive an order from his superiors to give the tribe official notice, of closure of the Wagner IHS in-patient facility. He testified that the tribe was aware closure might happen and that the tribe had expressed an interest in exercising self-determination to operate the inpatient facility if IHS planned to close it. Jolene Arrow, Secretary of the Tribal Council, testified that the tribe did not receive notice of the discontinuance of inpatient services and that, based upon information from Vern Donnell, Service Unit Director, the tribe thought the closure was temporary because of heating and ventilation concerns. Darlene Williamson testified that she received notice the same day the inpatient facility closed. The parties stipulated at trial that IHS did not provide Yankton Sioux tribal members with individual notice that inpatient services and 24-hour emergency room services would be discontinued at the Wagner IHS facility. The parties also stipulated that IHS did not provide Yankton Sioux tribal members with individual hearings relating to the discontinuance of these services.

In September 1988, for fiscal year 1989, Congress appropriated, again pursuant to the Indian Health Care Improvement Act, 25 U.S.C. §§ 1601-1682, over $61 million dollars for IHS construction projects, $4,227,000 of which was earmarked for the Wagner IHS Health Care Facility. (Gov't. exs. D-F.) Construction of the new portion of the facility began in August 1991. Inpatient services ceased as of November 16, 1992, and the facility has operated since that date as an ambulatory care and emergency facility. The facility as it now exists cannot support inpatient services. (Gov't. ex. I.) Dr. Olson testified that the IHS administers 49 hospitals, 150 health centers, and 350 other part-time or intermittent health centers, but IHS does not provide each tribe with similar services. He testified that the level of services provided depends upon workload, including a consideration of ADPL, the location and accessibility of alternative medical services, and the ability to recruit and retain quality professionals.

Effective November 23, 1988, Congress enacted Public Law 100-713, Indian Health Care Amendments of 1988, which substantially altered and added to the provisions of 25 U.S.C. § 1631. In addition to its previous direction to consult with Indian tribes regarding planned construction or...