Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Native American Center of Recovery, Appellant,
- v. -
Indian Health Service, Appellee.
DATE: November 12, 1993
Docket No. C-93-083
Decision No. CR293
RECOMMENDED DECISION
By letter dated April 29, 1993, Appellee, the Indian Health Service (IHS),
declined the proposal for a
contract submitted by the Native American Center of Recovery (Appellant) under
the Indian Self-
Determination Act, 25 U.S.C. 450 et seq., on February 22, 1993. Appellant sought
to provide medically
supervised inpatient detoxification services for members of the Indian population
residing in IHS's
Shawnee Service Unit area who are male and 20 to 40 years old. Following IHS's
declination of the
proposal, Appellant requested a hearing by letter dated May 24, 1993.
During the prehearing conference on June 17, 1993, IHS requested the opportunity
to proceed by summary
judgment motion. Appellant agreed to have held in abeyance its request for an
in-person hearing, pending
the parties' briefing certain legal issues. Accordingly, I set a briefing schedule
that allowed both parties to
file summary judgment motions. IHS filed such a motion, which was supported
by a brief in chief (IHS
Mem.) and a reply brief (IHS Rep.). Appellant responded to IHS's motion by brief
(App. Mem.), but did
not file a cross-motion for summary judgment.
For the reasons that follow, I recommend granting IHS's motion for summary
judgment and thereby uphold
IHS's decision to decline the proposed contract submitted by Appellant on February
22, 1993.
ISSUE
The sole issue in this case is whether IHS lawfully declined the contract proposal
submitted by Appellant
on February 22, 1993, pursuant to the Indian Self-Determination Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Under the Indian Self-Determination Act, a tribe or tribal organization
may contract with the U.S.
Department of Health and Human Services for "planning, conduct and administration
of programs or
services which are otherwise provided to Indian tribes and their members pursuant
to Federal law." 25
U.S.C. 450b(j).
2. IHS, an agency within the Public Health Service component of the U.S. Department
of Health and
Human Services, is responsible for providing health services to American Indian
and Alaska Native people
living on or near federal Indian reservations throughout the United States and
in traditional Indian country
in Oklahoma and Alaska. IHS Ex. 4. 1/
3. Under the Indian Self-Determination Act, if a tribal organization desires
to enter into a "self-
determination" contract with IHS, it must provide to IHS a tribal resolution
and a contract proposal to
provide health care services to eligible Indians. 25 U.S.C. 450f(a)(1).
4. If the contract proposal meets the statutory criteria, IHS may only decline
it for one of the following
reasons:
(A) the service to be rendered to the Indian beneficiaries of the particular
program or function to be
contracted will not be satisfactory,
(B) adequate protection of trust resources is not assured, or
(C) the proposed project or function to be contracted for cannot be properly
completed or maintained by
the proposed contract.
25 U.S.C. 450(f)(a)(2)(A)-(C).
5. If a "self-determination" contract is approved, the Indian Self-Determination
Act requires the transfer of
resources associated with the program to the tribe or tribal organization, as
follows:
The amount of funds provided under the terms of self-determination contracts
entered into pursuant to
this Act shall not be less than the . . . Secretary [of Health and Human Services]
would have otherwise
provided for the operation of the programs or portions thereof for the period
covered by the contract.
25 U.S.C. 450(j)-1(a).
6. After the enactment of the Indian Self-Determination Act, IHS has administered
its health care
programs either directly through operating its own health care facilities, or
through "self-determination"
contracts with Indian tribes and tribal organizations. IHS Ex. 1 and 4.
7. Throughout the country, IHS is organized into 12 Area Offices, which contain
various basic
administrative "service units." IHS Ex. 1.
8. The "service units" of IHS Area Offices are operated by IHS or
by tribes or tribal organizations under
"self-determination" contracts. IHS Ex. 1.
9. IHS's "service units" provide "direct care" to Indian
beneficiaries at IHS operated facilities or, where a
"self-determination" contract exists, at tribal health care delivery
facilities, such as hospitals, health centers,
health stations, and satellite clinics. IHS Ex. 1 and 4.
10. IHS has also a Contract Health Services program for purchasing some health
services that IHS does
not provide through its own facilities or personnel. IHS Ex. 1 and 4.
11. The term "Contract Health Services" means "health services
provided at the expense of the Indian
Health Service from public or private medical or hospital facilities other than
those of the Service." 42
C.F.R. 36.21(e) (1986). See also, footnote 4 of IHS's Mem. at p. 2 regarding
the inapplicability of the
subsequently promulgated regulation.
12. The Shawnee Service Unit is under the IHS Oklahoma Area Office and is one
of 11 service units in the
Oklahoma area. IHS Ex. 4.
13. The five indigenous tribes of the area serviced by the Shawnee Service
Unit are: Citizen Band
Potawatomi Tribe, Kickapoo Tribe of Oklahoma, Iowa Tribe of Oklahoma, Absentee
Shawnee Tribe of
Oklahoma, and Sac and Fox Nation of Oklahoma. IHS Ex. 4; IHS Ex. 4 - Tab D.
14. The Shawnee Service Unit makes available to Indian beneficiaries IHS's
"direct care" services at the
IHS- operated Shawnee Indian Health Center, an outpatient clinic. IHS Ex. 4
- Tab A; Finding 9.
15. To supplement its "direct care" services in the Shawnee Service
Unit area, IHS uses its allotted
Contract Health Services funds to purchase some -- but not all -- of those services
that are not available at
the IHS operated Shawnee Indian Health Center or other IHS facilities. IHS Ex.
4; IHS Ex. 4 - Tabs A and
J.
16. Under agency regulations, when funds are insufficient to provide the volume
of Contract Health
Services that appear to be needed by the population residing in a Contract Health
Services delivery area,
IHS must determine priority for services on the basis of relative medical need.
See 42 C.F.R. 36.21 et
seq. (1986).
17. Since October 17, 1988, IHS has had in place designated priorities for
using the available Contract
Health Services program funds in the Oklahoma City Area. IHS 4 - Tab J.
18. IHS had assigned alcohol and drug treatment programs to Category IV (the
next to lowest medical
priority category) under the Contract Health Services program in the Oklahoma
City Area. IHS Ex. 4 -
Tab J.
19. Presently, the Shawnee Service Unit purchases services only for Categories
I and II under its Contract
Health Services program. IHS Ex. 4.
20. No Contract Health Services are available for persons in need of treatment
for drug and alcohol
problems in the Shawnee Service Unit area. Findings 18 and 19; IHS Ex. 4.
21. The IHS hospital system of the Oklahoma Area sometimes provides services
for detoxification as an
adjunct to the treatment of acute medical problems. IHS Ex. 4; IHS Ex. 4 - Tab
I.
22. IHS does not provide any "direct care" for medically supervised
detoxification needs in the Oklahoma
Area, except as described in Finding 21. IHS Ex. 4.
23. Even though IHS provides no direct care for medically supervised detoxification
needs in the
Oklahoma Area (Finding 22), and it provides no Contract Health Services for
any type of drug or alcohol
treatment problems (Finding 20), Appellant and the five tribes indigenous to
the Shawnee Service Unit
have provided various non-medical outpatient or preventative services for dealing
with alcohol and
substance abuse under "self-determination contracts" with the IHS.
IHS Ex. 4 - Tabs B and C.
24. On June 29, 1992, IHS entered into a "self-determination" contract
with Appellant, which was
previously named Indian Action Center. IHS Ex. 4; IHS Ex. 4 - Tab B.
25. Appellant is a tribal organization under the direction of a board made
up of tribal representatives from
the five indigenous tribes and nations within the Shawnee Service Unit area.
IHS Ex. 4 - Tab D; see
Finding 13.
26. The "self-determination" contract award of June 29, 1992 provided
Appellant with $185,380 in direct
costs, covering the period from July 1, 1992 through June 30, 1993, to administer
a 35-day non-medical
residential drug and alcohol treatment program for those of the Shawnee Service
Unit area's Indian
population who are males age 18 or older. IHS Ex. 4; IHS Ex. 4 - Tab B.
27. In addition, for an additional total of $242,178 in direct costs, IHS also
entered into separate "self-
determination" contracts with each of the five tribes indigenous to the
Shawnee Service Unit for each tribe
to administer an alcohol and substance abuse program consisting of outpatient
and preventative services.
IHS Ex. 4; IHS Ex 4 - Tab C.
28. Based on a population of 11,615 beneficiaries serviced by these "self-determination"
contracts, IHS's
expenditures for alcohol and substance abuse treatment in the Shawnee Service
Unit area (totalling
$427,558) is slightly less than $37 per beneficiary. IHS Ex. 4.
29. IHS's per capita expenditure for alcohol and substance abuse treatment
under the aforementioned
contracts in the Shawnee Service Unit area is higher than the Oklahoma Area
per capita average funding
for the same purpose (slightly more than $16), and it is also higher than the
per capita allocations for eight
of the other 10 service units of the Oklahoma Area. IHS Ex. 4.
30. The total of $427,558 made available by IHS to the five tribes and Appellant
represents the total direct
cost funds IHS allocated for substance abuse treatment to the Shawnee Service
Unit of the Oklahoma Area
Office. IHS Ex. 4; see also IHS Ex. 6.
31. On February 22, 1993, Appellant submitted a proposal under the Indian Self-Determination
Act for an
inpatient "Medically Supervised Detoxification" program on behalf
of the five indigenous tribes of the
Shawnee Service Unit area. IHS Ex. 4 - Tab D; IHS Mem., p. 9; App. Mem., p.
2.
32. Appellant proposes to provide a facility which would admit, for a recommended
period of five days,
those Indian individuals who are under the influence of alcohol or illegal drugs
and are at high risk of
physical or emotional damage as a result of withdrawal, so that they may undergo
withdrawal under the
supervision of the facility's trained staff. IHS Ex. 4 - Tab D.
33. The target population of the February 22, 1993 proposal is the 4,325 "at
risk" Indians of the Shawnee
Service Unit area who are males and between the ages of 20 to 40. IHS Ex. 4
- Tab D, p. 8.
34. Appellant's proposal sought to provide this treatment, either directly
or through consultation or
contractual agreements, which treatment was to be funded by IHS Contract Health
Services program funds.
IHS Ex. 4 - Tab D, p. 3; IHS Ex. 5, p. 3.
35. The cost of the proposed program is $299,276. IHS Ex. 4 - Tab D, p. 21.
36. On April 29, 1993, after reviewing Appellant's proposal, Robert H. Harry,
D.D.S., Oklahoma Area
Director of IHS, declined the proposal by citing the statutory criterion, "the
proposed project or function to
be contracted for cannot be properly completed or maintained by the proposed
contract" (25 U.S.C.
450f(a)(2)(C)). IHS Ex. 4 - Tabs I and K.
37. Dr. Harry, for IHS, explained his use of the statutory declination criteria
by stating that: (a) medically
supervised detoxification services are not service elements that currently exist
or are being provided in the
Shawnee Service Unit; (b) providing medically supervised detoxification services
as direct care in the area
would constitute a new program activity or an expansion of the current alcohol
services programs; and (c)
IHS does not have funds available for new or expanded alcohol programs at this
time. IHS Ex. 4 - Tab K.
38. Since 1987, Congress has not specifically appropriated funds for the Indian
Alcohol and Substance
Abuse Prevention and Treatment Act of 1986 (25 U.S.C. 2401, et seq.). IHS Ex.
6.
39. IHS had allocated to its various Area Offices the $16,200,000 Congress
appropriated in fiscal year
1987 for services provided under the Indian Alcohol and Substance Abuse Prevention
and Treatment Act
of 1986. IHS Ex. 6.
40. The Indian Alcohol and Substance Abuse Prevention and Treatment Act of
1986 does not give rise to
any legally enforceable rights or obligations under the facts of the present
case. 25 U.S.C. 2401.
41. IHS receives its funds from two annual lump-sum appropriation accounts:
one for "Indian Health
Services" and the other for "Indian Health Facilities." IHS Ex.
3.
42. For fiscal year 1993, IHS did not receive appropriations specifically designated
for implementing the
Indian Self-Determination Act and the Indian Alcohol and Substance Abuse Prevention
and Treatment Act
of 1986. IHS Ex. 3; IHS Ex. 6.
43. IHS allocates and spends its appropriated funds under the authority of
the Snyder Act (25 U.S.C. 13)
and the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.). Lincoln
v. Vigil, 113 S. Ct. 2024,
2027 (1993).
44. Both the Snyder Act and the Indian Health Care Improvement Act speak about
Indian health care in
general terms. Lincoln v. Vigil, 113 S.Ct. at 2032.
45. The allocation of funds from a lump sum appropriation is an administrative
decision committed to
agency discretion. Lincoln v. Vigil, 113 S.Ct. at 2031.
46. Appellant cannot compel IHS to allocate funds from the lump-sum appropriation
in any particular
manner. See Lincoln v. Vigil, 113 S. Ct. 2024.
47. While IHS has the discretion to take funds from its lump-sum appropriation
and reallocate them
between programs, Appellant cannot compel IHS to do so. See Lincoln v. Vigil,
113 S. Ct. 2024.
48. At the time IHS declined Appellant's contract proposal at issue, the funds
IHS had allocated to drug
and alcohol treatment in the Shawnee Service Unit area had been depleted by
earlier awards of "self-
determination contracts" totalling $427,558 to Appellant and the five indigenous
tribes of the Shawnee
Service Unit area. I.G. Ex. 4.
49. The Indian Self-Determination Act is not a self-funding statute, but a
statute that gives tribes and tribal
organizations the means for contracting for services that are otherwise available
from IHS pursuant to its
allocations and expenditures under the Snyder Act or the Indian Health Care
Improvement Act. Findings
41 - 44.
50. IHS's assignment of a priority code to drug and alcohol treatment under
the Contract Health Services
program is in accord with the regulations. 42 C.F.R. 36.23(e) (1986); Findings
16 - 20.
51. Because no Contract Health Services funds were allocated in the Shawnee
Service Unit area for
purchasing treatment for drug and alcohol abuse or other services of the same
medical priority code,
Contract Health Services funds were not legally available for the services Appellant
proposed to provide.
Findings 15 - 20.
52. IHS has no legal obligation to make available contract Health Services
funds for awarding a contract to
Appellant for the proposal at issue. Finding 50.
53. In the absence of any inpatient medical treatment of drug or alcohol abuse
provided by IHS, there is no
direct care fund that can be transferred to Appellant under its "self-determination"
contract proposal to
provide said treatment. See Findings 21 and 22; 25 U.S.C. 450(j)-1(a).
54. The terms of Appellant's contract proposal cannot be reasonably construed
as an offer to take over that
portion of the direct care services provided from time to time at IHS hospitals
in the Oklahoma Area which
treat alcohol and drug abuse problems as an adjunct to other acute medical conditions.
See Findings 32
and 33.
55. IHS properly declined Appellant's proposed contract dated February 22,
1993, under section
102(a)(2)(C) of the Indian Self-Determination Act, 25 U.S.C. 450f(a)(2)(C).
56. Where Appellant requires $299,276 to provide its services under the proposed
"self-determination"
contract, and IHS has no funds allocated for the purchase of those services
and does not choose to
reallocate funds as suggested by Appellant, IHS properly concluded that "the
proposed project or function
to be contracted for cannot be properly completed or maintained by the proposed
contract," within the
meaning of the statute. 42 U.S.C. 450f(a)(2)(C).
ANALYSIS
The essential facts of this case are straightforward.
Appellant, formerly named the Indian Action Center Council, is a consortium
of the five tribes indigenous
to the Shawnee, Oklahoma area, i.e., the Citizen Band Potawatomi Tribe, Kickapoo
Tribe of Oklahoma,
Iowa Tribe of Oklahoma, Absentee Shawnee Tribe of Oklahoma, and Sac and Fox
Nation of Oklahoma.
IHS Ex. 4; IHS Ex. 4 - Tab D, pp. 1, 11. IHS's Shawnee Service Unit, which is
under IHS's Oklahoma
Area Office, administers the delivery of health care services to the populations
of these five tribes. IHS Ex.
1 and 4.
In the months prior to Appellant's submitting the contract proposal at issue,
IHS had entered into a total of
six contracts under the Indian Self-Determination Act. These six contracts were
with Appellant and the
five Indian tribes indigenous to the Shawnee Service Unit area and funded the
administration or delivery of
various types of outpatient, non-medical or preventative substance abuse treatment
programs to the area's
Indian beneficiaries. 2/ IHS Ex. 4; IHS Ex. 4 - Tabs B and C. As a consequence
of these contracts, the
total amount of money committed to Appellant and the five tribes under the Indian
Self-Determination Act
depleted the direct cost funds IHS had allocated for substance abuse treatment
in the Shawnee Service Unit
area. IHS Ex. 4; see also IHS Ex. 6 and 25 U.S.C. 450(j)-1(a).
In addition, because IHS assigned a low medical priority to substance abuse
treatment in the Shawnee
Service Unit, IHS had committed no Contract Health Services funds to it. IHS
Ex. 2, 4, and IHS Ex. 4 -
Tabs A and J; 42 C.F.R. 36.21 et seq. 3/ The available Contract Health Services
funds were being used
by IHS to purchase from local suppliers other health care services that were
not available directly from IHS
operated facilities or through sources that had been given "self-determination"
contracts. Id. The
supplemental services purchased by IHS with its Contract Health Services funds
included those to which
IHS had assigned a higher medical priority than substance abuse treatment. Id.
IHS also provides no inpatient medically supervised detoxification services
in its Oklahoma Area. IHS Ex.
4. To the extent such services are provided at all in IHS's Oklahoma Area health
delivery network, they are
provided as an adjunct to the inpatient care rendered in IHS hospitals in the
treatment of other acute
medical problems. Id. Thus, IHS had no funds allocated specifically for inpatient
medically supervised
detoxification services.
On February 22, 1993, Appellant submitted the proposed contract at issue. 4/
Appellant proposed to
provide an inpatient medically supervised detoxification program in the Shawnee
Service Unit area to
serve the "at-risk" members of the Indian population, i.e., those
who are males and between the ages of 20
to 40. IHS Ex. 4 - Tab D. Appellant sought to provide such a program as direct
care or through contract
services under the Indian Self-Determination Act. Appellant estimated that it
would need a total of
$299,276 from IHS under a "Cost Reimbursement Contract." Id. at pp.
4, 6, 21; IHS Ex. 5, p. 3.
IHS declined the proposed contract on April 29, 1993, citing one of the statutorily
permissible criteria, "the
proposed project or function to be contracted for cannot be properly completed
or maintained by the
proposed contract" (25 U.S.C. 450f(a)(2)(C)). IHS Ex. 4 - Tabs I and K.
IHS explained that the program
Appellant proposed is not currently being provided by IHS in the area and that
no funds are available for
new or expanded substance treatment programs at the present time. IHS Ex. 4
- Tab K. Implicit in IHS's
explanation is the reasoning that because no program of the type proposed by
Appellant is being offered by
IHS, no funds designated for that purpose can be transferred to Appellant under
the Indian Self-
Determination Act. IHS relies on section 450(j)-1(a) of the Indian Self-Determination
Act, which provides
that the "amount of funds provided under the terms of self-determination
contracts . . . shall not be less than
the . . . Secretary [of the Department of Health and Human Services] would have
otherwise provided for
the operation of the programs . . . . " IHS Mem., pp. 6 - 7; see IHS Ex.
4 - Tab I, p. 1.
Appellant then appealed the declination of its proposed contract. IHS Ex. 5.
In its appeal letter and its brief Appellant has articulated good reasons why
substance abuse needs to be
treated as a disease, why more money committed to treatment of this disease
may be beneficial to the
population served by IHS, and why Congress should have appropriated money specifically
for this
purpose. In so arguing, Appellant has urged me to note the special relationship
the United States
Government has with the Indian people. Appellant has further pointed out the
federal government's
repeated focus on alcohol and substance abuse among the Indian people. See,
e.g., App. Ex. 2; App.
Mem., pp. 5 - 7. As noted by Appellant, IHS has publicly articulated that its
goals are to help lower the
incidence of substance abuse and to establish accessible medical and social
detoxification services within
each area it serves. App. Mem., p. 7. Appellant contends, among other things,
that the federal government
serves the Indian people in a fiduciary capacity and that it was arbitrary for
IHS to decline the proposed
contract due to a "lack of funds" in the Shawnee Service Unit area.
App. Mem., pp. 4 and 13.
Notwithstanding all of Appellant's reasons for wishing to establish a medically
supervised inpatient
detoxification center in the Shawnee Service Unit area, IHS's declination of
Appellant's proposed contract
is valid under the law. In fact, viewing IHS's declination of Appellant's proposed
contact in the broader
context of IHS's duty to serve all Indian people throughout the nation, IHS's
declination appears to be fair
and reasonable as well.
I. IHS has no funds allocated to provide services under Appellant's proposed contract.
The crux of this dispute is money. 5/ Appellant's proposal makes clear that,
in order to receive the services
offered by Appellant, IHS must pay $299,276. This payment is material to Appellant's
proposed
performance. Appellant has not offered to perform its services if IHS makes
no payment or discontinues
payment during the contract period. For that reason, IHS properly considered
its own ability to pay the
amount specified by Appellant during the contract period in deciding whether
Appellant could properly
complete or maintain the proposed contract.
IHS has established through its briefs and the documents it filed in support
of summary judgment that it
lacks the money to transfer to Appellant under the Indian Self-Determination
Act. 6/ No money can be
transferred from an existing IHS program because no program of the type proposed
by Appellant exists in
the service area. No Contract Health Services funds can be used for Appellant's
proposal pursuant to the
medical priority structure established in accordance with the agency's eligibility
regulations. In addition,
all funds allocated to substance abuse treatment have been committed to the
other previously approved
"self-determination" contracts that provide services that are different
from those proposed by Appellant on
February 22, 1993.
It is clear that the Indian Self-Determination Act does not fund itself. Whenever
IHS enters into a "self-
determination" contract, Congress does not make an appropriation to IHS
for the satisfaction of that
contract. To the contrary, Congress has made no appropriation designated solely
for the implementation of
"self-determination" contracts.
Petitioner relies on the Indian Alcohol and Substance Abuse Prevention and
Treatment Act of 1986, 25
U.S.C. 2401, et seq., as a legal basis for its contract proposal. App. Mem.,
pp. 5 - 7, 15. The Indian
Alcohol and Substance Abuse Prevention and Treatment Act does not give rise
to any legally enforceable
rights or obligations under the facts of the present case. The Indian Alcohol
and Substance Abuse
Prevention and Treatment Act authorizes, but does not mandate, the use of funds
for grants to Indian tribes
to develop and implement tribal programs for youth employment, youth recreation,
youth cultural
activities, community awareness programs, and community training and education
programs. While
Congress appropriated monies to IHS for services provided under this Act in
fiscal year 1987, Congress
has made no appropriation specifically for the implementation of this Act subsequent
to fiscal year 1987.
IHS Ex. 6.
Moreover, even if Congress had appropriated specific funds to implement the
Indian Alcohol and
Substance Abuse Prevention and Treatment Act in fiscal year 1993, it would not
be a basis for funding
Petitioner's contract proposal. The intended beneficiaries of the Indian Alcohol
and Substance Abuse
Prevention and Treatment Act are Indian youths, while the intended beneficiaries
of Appellant's contract
proposal are adult Indian males between the ages of 20 and 40.
II. Appellant cannot compel IHS to reallocate monies from its lump-sum appropriation
to fund Appellant's
contract proposal.
In recent years, IHS has received all its funding from two annual lump-sum
appropriations. IHS Ex. 3.
IHS allocates and spends its appropriated funds under the Snyder Act and the
Indian Health Care
Improvement Act, neither of which speaks to Indian health care in specific terms.
See 25 U.S.C. 13, and
1601 et seq.. The funds from these appropriations that IHS had allocated to
the Shawnee Service Unit for
the treatment of drug and alcohol problems had been depleted by the time Appellant
submitted its proposal
to provide an inpatient medically supervised detoxification program for young
adult males. IHS Ex. 4.
Shortly after IHS declined the proposed contract at issue, the Supreme Court
decided Lincoln v. Vigil, 113
S. Ct. 2024 (1993), which held that the allocation of funds under lump sum appropriations
to IHS are
matters committed to IHS's discretion, and such allocations by IHS are not subject
to judicial review. The
Court's reasoning and holding control my decision as to whether, if IHS lacks
funds under its current
allocation structure to approve the proposed "self-determination"
contract, IHS should reallocate funds
from other service units or other programs.
In Vigil, the Court held that IHS has the discretionary right to discontinue
a health program that did not
receive specifically appropriated funding from Congress and, pursuant to IHS's
broad statutory mandate to
administer health care delivery to the Indian people, to reallocate to another
program the funds from the
discontinued one. So, too, in this case, IHS has the discretion not to transfer
between programs the non-
specifically appropriated funds it has already allocated. IHS's failure or refusal
to reallocate such funds
creates no legal right of action in Appellant.
Appellant suggests that IHS should have considered the possibility of diverting
funds from other sources to
satisfy Appellant's proposed contract. However, there is no law, regulation,
or other agency rule that
requires IHS to consider such a possibility. Moreover, IHS has responded in
writing in these proceedings
to Appellant's specific urgings to consider diverting funds from elsewhere.
IHS has, as a practical matter,
given consideration to the option and rejected the option in its briefs.
Without doubt IHS may, if it wishes, reallocate funds from its lump-sum appropriations
to accomplish its
various missions. However, it is not required to adopt Appellant's priorities,
and IHS has no legal
obligation to transfer funds as suggested by Appellant. Contrary to Appellant's
arguments (App. Mem., pp.
13, 14), IHS need not demonstrate to Appellant how it made its fiscal allocations
or that it had considered
diverting funds from other areas or sources. See Vigil, 113 S. Ct. at 2031 -
32.
IHS noted that Appellant and the five area tribes who have previously formed
"self-determination"
contracts with IHS to provide various types of non-medical, outpatient or preventative
services for
substance abuse problems may, with IHS approval, modify their expenditures to
include providing a
medically supervised detoxification program for young men 20 to 40 years old,
as currently proposed by
Appellant. IHS Rep., p. 8. Such an approach could accommodate the medical and
human needs Appellant
has perceived without doing damage to the special relationship Appellant has
also noted in its brief.
Even though IHS has correctly pointed out that the cases and authorities cited
in Appellant's brief
concerning IHS's special relationship to the Indians are inapposite to the issues
in this case, Appellant's
general discussion of it underscores the fact that IHS's responsibilities are
to all American Indian and
Alaska Native people living throughout the United States and in traditional
Indian country in Oklahoma
and Alaska. IHS helps to ensure the delivery of adequate health care services
at the Shawnee Service Unit
as well as at the many other service units throughout the nation. For IHS to
reallocate funds for a contract
with Appellant may result in disadvantaging other Indian peoples living outside
of the Shawnee Service
Unit area.
Even though IHS has adopted goals for addressing substance abuse problems (see
App. Mem., e.g., pp. 7 -
8), IHS has not adopted those goals for the sole benefit of the Indian people
of the Shawnee Service Unit
area. See App. Ex. 2. Especially since IHS has already made a greater per capita
expenditure on alcohol
and drug treatment in the Shawnee Service Unit area than in most of the other
service units of the same
region, the equities are against IHS's diverting resources from elsewhere to
fund Appellant's project. IHS
Ex. 4. As noted by the United States Supreme Court in Vigil, "Whatever
the contours of that [trust]
relationship [between the Indian people and the federal government], though,
it could not limit [IHS's]
discretion to reorder its priorities from serving a subgroup of beneficiaries
to serving the broader class of
all Indians nationwide." Vigil, 113 S. Ct. at 2033.
In sum, Appellant has no legally enforceable right to have IHS enter into a
"self-determination" contract
for which the funds required by Appellant are not available from IHS's budget
allocations. Even though
IHS has the discretion to allocate its funds and transfer its available resources
as it deems proper to effect
its health care delivery mission to all Indian people, Appellant cannot compel
IHS to do so under the terms
of its "self-determination" proposal. Appellant's contract proposal
makes no provisions for its performance
if IHS fails to make payment or discontinues payment. Therefore, IHS's response
was properly, "the
proposed project or function to be contracted for cannot be properly completed
or maintained by the
proposed contract," within the meaning of the third declination criteria
specified in the Indian Self-
Determination Act, 25 U.S.C. 450 (f)(a)(2)(C). Because IHS's response was legally
justified, it was not
arbitrary and capricious, as contended.
CONCLUSION
I conclude that IHS's declination of the contract proposal at issue was legal
under the Indian Self-
Determination Act. I therefore recommend that the declination be sustained by
granting IHS's motion for
summary judgment.
____________________________
Mimi Hwang Leahy
Administrative Law Judge
1. IHS submitted six exhibits with its motion for summary judgment, marked as
IHS Ex. 1 - 6.
Appellant submitted two exhibits with its response, marked as NACR Ex. 1 - 2.
Attached to IHS Ex. 4
were Tabs A - K. Neither party has objected to the foregoing exhibits, and I
have admitted all of them into
the record for the purpose of considering the merits of the parties' positions.
2. Throughout this decision, I use "substance" interchangeably with "drug and alcohol."
3. The currently applicable eligibility requirements for Contract Health Services
are contained in the
1986 Code of Federal Regulations. IHS Ex. 2. On September 16, 1987, the Department
of Health and
Human Services promulgated new regulations to replace the eligibility requirements
previously codified at
42 C.F.R. 36.21; however, Congress suspended the eligibility requirements as
set out in the new
regulations for Contract Health Services. See Pub. L. No. 102-381, 106 Stat.
1409 (1992).
4. The proposal itself is dated March 1, 1993. IHS Ex. 4 - Tab D, p. 1. However,
I use the February 22,
1993 date for the proposal because both Appellant and IHS state that the proposal
was submitted on that
date. App. Mem., p. 2; IHS Mem., p. 9.
5. IHS has asked me to find that, under the Indian Self-Determination Act,
a tribe or tribal organization
may seek to contract only for an IHS program, or a portion of a program, that
is in existence. IHS Mem.,
pp. 5 - 7; 10 - 13. IHS's argument is that, in addition to its having properly
declined the proposed contract
under a statutory declination criterion, Appellant's proposal was invalid ab
initio for seeking to create a
new program under the Indian Self-Determination Act. Id.. Because I find that
IHS's use of the statutory
declination criterion is proper and that its reference to a "new program"
in the declination letter merely
explains the absence of available funds, I do not reach the broader legal question
posed by IHS.
6. I have accepted IHS's assertions as true because they were supported by
affidavits and related
documents that appear credible on their face and because Appellant has not interposed
any valid argument
or evidence for a contrary conclusion. As for Appellant's factual argument that
"[t]he Indian Health
Service does provide for detoxification services in the Shawnee Service Unit
at the present time," it is
premised on IHS's representation that its hospitals sometimes provide detoxification
in connection with the
treatment of other acute medical conditions. App. Mem., pp. 3 - 4. Since a review
of Appellant's proposed
contract shows that it is not seeking to take over the ancillary detoxification
services provided in a hospital
setting for the treatment of other medical conditions, Appellant's assertion
that it does not know the total
cost of such hospital services to IHS (App. Mem., p. 4) creates no genuine issue
of material fact in this
case.