Notice of the Redesignation of the Service Delivery Area for the Wampanoag Tribe of Gay Head (Aquinnah)

AGENCY:

Indian Health Service.

ACTION:

Final notice.

SUMMARY:

This final notice advises the public that the Indian Health Service (IHS) has decided to expand the geographic boundaries of the Purchased/Referred Care (PRC) service delivery area for the Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts pursuant to 42 CFR 136.22. The Aquinnah service delivery area previously covered Martha's Vineyard, Dukes County in the State of Massachusetts. The expanded service delivery area includes counties of Barnstable, Bristol, Norfolk, Plymouth, Suffolk, and Dukes Counties in the State of Massachusetts. The sole purpose of this expansion is to authorize Aquinnah to cover additional tribal members and beneficiaries under Aquinnah's PRC program using the existing Federal allocation for PRC funds.

DATES:

The effective date of expansion will be 60 days from the date of this notice.

FOR FURTHER INFORMATION CONTACT:

Terri Schmidt, Acting Director, Office of Resource Access and Partnerships, Indian Health Service, 5600 Fishers Lane, Mailstop 10E85C, Rockville, Maryland 20857. Telephone (301) 443-2694 (This is not a toll free number).

Background: The Indian Health Service (IHS) currently provides services under regulations codified at 42 CFR part 136, subparts A through C. Subpart C defines a Contract Health Service Delivery Area (CHSDA), now referred to as a Purchased/Referred Care (PRC) service delivery area, as the geographic area within which PRC will be made available by the IHS to members of an identified Indian community who reside in the area. Residence in a PRC service delivery area by a person who is within the scope of the Indian health program, as set forth in 42 CFR 136.12, creates no legal entitlement to PRC but only potential eligibility for services. Services needed but not available at an IHS/Tribal facility are provided under the PRC program depending on the availability of funds, the person's relative medical priority, and the actual availability and accessibility of alternate resources in accordance with the regulations.

As applicable to the Tribes, these regulations provide that, unless otherwise designated, a PRC service delivery area shall consist of a county which includes all or part of a reservation and any county or counties which have a common boundary with the reservation. 42 CFR 136.22(a)(6). The regulations also provide that after consultation with the Tribal governing body or bodies on those reservations included within the PRC service delivery area, the Secretary may from time to time, redesignate areas within the United States for inclusion in or exclusion from a PRC service delivery area. The regulations require that certain criteria must be considered before any redesignation is made. The criteria are as follows:

(1) The number of Indians residing in the area proposed to be so included or excluded;

(2) Whether the Tribal governing body has determined that Indians residing in the area near the reservation are socially and economically affiliated with the tribe;

(3) The geographic proximity to the reservation of the area whose inclusion or exclusion is being considered; and

(4) The level of funding which would be available for the provision of PRC.

Additionally, the regulations require that any redesignation of a PRC service delivery area must be made in accordance with the Administrative Procedures Act (5 U.S.C. 553). In compliance with this requirement, IHS published a proposed notice of redesignation and requested public comments on August 24, 2015 (80 FR 51281). Aquinnah requested that IHS expand the Aquinnah service delivery area to include Barnstable, Bristol, Norfolk, Plymouth and Suffolk Counties in the State of Massachusetts.

In support of this expansion, IHS adopts the following findings of the Aquinnah Tribe:

(1) By expanding, the Tribe's estimated current eligible population will be increased by 268.

(2) The Tribe has determined these 268 individuals are socially and economically affiliated with the Tribe.

(3) The expanded area including Barnstable, Bristol, Norfolk, Plymouth, and Suffolk Counties in the State of Massachusetts are across the Bay from Martha's Vineyard, Dukes County, Massachusetts.

(4) The Tribal members located in these counties currently do not use the Indian health system for their health care needs.

Aquinnah will use its existing Federal allocation for PRC funds to provide services to the expanded population. No additional financial resources will be allocated by IHS to Aquinnah to provide services to its members residing in these counties nor should this expansion be construed to have any present or future effect on the allocation of resources between the Mashpee Wampanoag Tribe and Aquinnah.

Public Comments: The Agency only received comments from the Mashpee Wampanoag Tribe (Mashpee). Mashpee incorporated several letters into its submission. Through these comments and letters, Mashpee indicated that it does not support the proposed redesignation and articulated several objections to the expansion, which IHS addresses below:

Comment: IHS has failed to meet its legal requirement to meaningfully consult with the Mashpee Tribe as the only other Tribal governing body within the proposed redesignated SDA in accordance with 42 CFR 136.22(b).

Response: IHS disagrees. IHS consulted with the Mashpee Tribe regarding this proposed expansion. As Mashpee noted in its own submission, IHS engaged in government-to-government discussions and correspondence on this issue. IHS provided its answers to the Mashpee Tribe's questions in a letter from Deputy Director McSwain to Mashpee Chairman Cromwell, dated October 5, 2015. While Mashpee questions the adequacy of IHS's answers, they nonetheless demonstrate that IHS has engaged in meaningful consultation with Mashpee with respect to this expansion. Additionally, the opportunity to submit comments on a proposed notice is a form of consultation. IHS recognizes that Mashpee has concerns with the expansion and does not support the IHS decisions in this regard. IHS is not required, after consultation with a Tribe, to adopt the specific position of the Mashpee Tribe.

Comment: IHS has no legal authority to contravene the clear legal mandate of the Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987.

Response: IHS agrees with the Mashpee Tribe that the Agency cannot contravene the Settlement Act, but the Agency does not believe the expansion is prohibited by the Settlement Act. It is HHS's understanding that the Settlement Act is not implemented by Department of the Interior (DOI) as a limitation for DOI programs and services. Accordingly, after conferring with DOI regarding its position, IHS has decided to revisit the expansion issue. The establishment of PRC service delivery areas is an administrative function of IHS, governed by the regulations at 42 CFR 136.22. Historically, IHS has established service delivery areas in accordance with our understanding of Congressional intent, for example as evidenced by geographically designated areas identified in settlement acts, such as Public Law 100-95. IHS does not intend to abandon that practice. Under PRC regulations, however, IHS has preserved flexibility to redesignate areas as appropriate for inclusion in or exclusion from PRC service delivery. One of the criteria for such redesignations is the geographic proximity of the expanded area to the existing reservation or service delivery area. In the few circumstances where it has arisen, IHS has aligned geographic proximity with Congressional findings of “on or near”.

Here, IHS proposed to expand a PRC delivery area beyond the geographic description of “on or near” that Congress set forth in a settlement or recognition act. IHS offered stakeholders the opportunity to comment on the departure from historic practice by issuing a notice of proposed expansion prior to issuing a final notice to ascertain whether the departure is disruptive to tribes that have previously relied on IHS's historic practice. IHS did not receive comments that identify a detrimental reliance interest. Accordingly, when considering the geographic proximity of the proposed expansion area under 42 CFR 136.22 to the existing reservation (or service delivery area), IHS will no longer rigidly apply a Congressional finding of “on or near” as prohibiting PRC delivery area expansion in considering expansion requests. Although this is a change in the implementation of the redesignation authority found at 42 CFR 136.22, no change is necessary to the text of the regulation itself.

In making this change, however, IHS notes that Congress has, at times, statutorily enacted PRC service delivery areas for some tribes or for entire States. See, e.g. 25 U.S.C. 1678 (designating the entire State of Arizona). Those enactments may limit changes in PRC delivery area boundaries in some circumstances. Congress did not specifically establish a PRC service delivery area for Aquinnah in the Settlement Act; IHS administratively established this area through its regulations. While IHS chose to establish and limit the Aquinnah PRC service delivery area consistent with the language of the Act, in keeping with our current understanding of DOI practices, the language of the Act does not have to be read as preventing IHS from exercising its administrative discretion to expand or reduce that initially established area going forward. Indeed, IHS has already interpreted its authority to permit the establishment of PRC service delivery areas that go beyond what may otherwise be considered “on or near” a reservation. For example, IHS has administratively designated entire states as PRC service delivery areas, even though all parts of such states were not necessarily “on or near” a reservation. Nor does there appear to be any legislative history of the Act that would suggest that Congress intended the language of Section 1771 to be a limitation on IHS programs or administrative flexibility. There is also no evidence to suggest that Congress intended to limit eligibility for PRC services. Unless IHS administratively expands the PRC service delivery, however, Aquinnah cannot cover hundreds of its tribal members under PRC. IHS has therefore revisited Aquinnah's request and believes that unique circumstances are present that warrant expanding the Aquinnah PRC service delivery area beyond the general geographic area identified by Congress in Public Law 100-95 as “on or near”. These unique circumstances include the factors identified by the BIA in recognizing the Aquinnah prior to the enactment of Public Law 100-95, BIA's understanding of the settlement language, and Dukes County's status as an island and the significant number of Aquinnah's members who reside permanently off of the island and continue to maintain close economic and social ties with the Aquinnah.

The BIA recognized the Aquinnah Tribe as an Indian Tribe eligible for Federal benefits on February 10, 1987, pursuant to a notice published in the Federal Register. See 52 FR 4193. As part of its findings, BIA concluded “that the [Aquinnah] have an extensive and interrelated communication network connecting those Wampanoag members in Gay Head and elsewhere on Martha's Vineyard with each other and with those members living off-island.” The BIA further concluded that the Tribal government “maintained political influence and/or authority over both its resident and non-resident members.” Aquinnah has a significant number of members who are not residents of Dukes County. According to Aquinnah's estimates, 268 enrolled Aquinnah members are non-residents who remain actively involved with the Tribe, reside in Barnstable, Bristol, Norfolk, Plymouth and Suffolk Counties and are not currently eligible for PRC care.

Aquinnah provides limited direct services to its Tribal members by operating a small clinic in Dukes County that is open once or twice a month. To access direct care services, non-residents must travel over one and a half hours via ferry and car to receive the health care offered at the clinic. As a consequence, most non-residents do not seek care on the island.

Comment: The Mashpee tribe commented that the publication of the notice is arbitrary, capricious, and contrary to law.

Response: IHS disagrees. IHS's decision to publish a notice of the intention to expand the Aquinnah PRC service delivery area was not arbitrary, capricious, or contrary to law. IHS rules expressly authorize IHS to expand a PRC service delivery area through a notice issued pursuant to the Administrative Procedures Act (5 U.S.C. 553) and that process has been followed here. IHS is implementing a change in the way it reviews PRC delivery expansion requests, but that change is fully consistent with the existing language in the rules.

Comment: 42 CFR 136.22(a)(6) provides that “the [CHSDA] shall consist of a county which includes all or part of a reservation, and any county or counties which have a common boundary with the reservation.” As explained in the 2011 Declination Letter, “since the county is coextensive with the Atlantic Ocean island of Martha's Vineyard, there is no adjacent county to consider for inclusion in the CHSDA.”

Response: The comment references the starting point for establishing a PRC service delivery area. As noted above, IHS retains the administrative discretion to redesignate PRC service delivery areas after they are initially designated. The criteria for expansion requires IHS to consider geographic proximity, but it does not require IHS to limit expansion to adjacent counties.