B-143333, FEB. 13, 1961

B-143333, FEB. 13, 1961

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

BY A LETTER OF DECEMBER 16, 1960, THE FORMER SECRETARY OF HEALTH, EDUCATION, AND WELFARE REQUESTED RECONSIDERATION OF OUR DECISION OF SEPTEMBER 30, 1960 (B-143333), WHEREIN WE EXPRESSED THE OPINION THAT CHARGES ASSESSED UNDER AUTHORITY OF SECTION 36.13 OF THE PUBLIC HEALTH SERVICE REGULATIONS (42 CFR 36.13) CONSTITUTE LEGAL DEBTS DUE THE UNITED STATES SUBJECT TO RECOVERY.

SECTION 36.13 DEALS WITH CHARGES TO INDIANS, THOSE ABLE TO PAY, FOR HEALTH AND MEDICAL SERVICES RENDERED THEM BY THE PUBLIC HEALTH SERVICE. IT IS PART OF THE INDIAN HEALTH PROGRAM REGULATIONS PROMULGATED UNDER AUTHORITY OF PUBLIC LAW 568, 83RD CONGRESS, 68 STAT. 674, WHICH ON JULY 1, 1955, TRANSFERRED TO THE PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, THE RESPONSIBILITIES OF MAINTAINING AND OPERATING HOSPITAL AND HEALTH FACILITIES FOR INDIANS, AND CONSERVING THEIR HEALTH.

THE LETTER OF THE FORMER SECRETARY STATES OUR CONSTRUCTION OF SECTION 36.13, THAT A LEGAL OBLIGATION ARISES FROM A CHARGE UNDER THE SECTION, IS NOT IN CONSONANCE WITH THE ADMINISTRATIVE PURPOSE OF THE REGULATION,"INTENDED TO EXPRESS THE CONCEPT THAT VOLUNTARY PAYMENTS, CONSISTENT WITH THE INDIAN'S FINANCIAL ABILITY WERE TO BE ENCOURAGED BUT NOT TO BE REQUIRED.' THE LETTER FURTHER STATES THE OFFICIAL INTERPRETATION OF THE PUBLIC HEALTH SERVICE AND OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SINCE ADOPTION OF THE REGULATIONS PERTAINING TO THE INDIAN HEALTH PROGRAM (PART 36, TITLE 42, CFR), IS THAT "REQUESTS FOR PAYMENT UNDER SECTION 36.13 OF THE REGULATIONS ARE NOT "CHARGES" AND THEREFORE NOT "DEBTS DUE THE UNITED STATES.'" IT WAS EXPLAINED THE ADMINISTRATIVE CONCEPT OF VOLUNTARY PAYMENTS WAS INTENDED TO MEET THE DILEMMA OF NOT CREATING, BY THE CHARGING OF FEES, A "NEGATIVE INCENTIVE" TO THE UTILIZATION BY INDIANS OF MODERN HEALTH FACILITIES, WHILE AT THE SAME TIME ENCOURAGING THEIR UTILIZATION OF THE COMMUNITY HEALTH FACILITIES USED BY THE NON-INDIAN POPULATION.

WE ARE CONCERNED HERE SOLELY WITH THE EFFECT OF SECTION 36.13 OF THE INDIAN HEALTH PROGRAM REGULATIONS. OUR DECISION OF SEPTEMBER 30, 1960, DID NOT HOLD THE PUBLIC HEALTH SERVICE WAS OTHERWISE REQUIRED TO CHARGE INDIAN BENEFICIARIES FOR MEDICAL SERVICES. CF. 5 U.S.C. 140. ESSENTIALLY THE PROBLEM IS WHETHER THE REGULATION REFLECTS THE ADMINISTRATIVE INTENT INDICATED IN THE LETTER OF THE FORMER SECRETARY, OR REQUIRES REDRAFTING.

THAT THE REGULATION DOES NOT CLEARLY REFLECT THE CONCEPT OF VOLUNTARY PAYMENTS IS DEMONSTRATED BY THE CIRCUMSTANCE GIVING RISE TO THE QUESTION OF ITS CONSTRUCTION--- THE AMENDMENT OF THE PUBLIC HEALTH SERVICE MANUAL, BUDGET AND FINANCE, TO STOP THE PRACTICE OF REFERRING UNCOLLECTED CHARGES UNDER SECTION 36.13 TO OUR OFFICE. THE LETTER OF THE FORMER SECRETARY STATES THE LANGUAGE OF THE REGULATION, THAT "INDIVIDUAL INDIANS WHO ARE CLEARLY ABLE TO PAY * * * WILL BE ENCOURAGED TO DO SO," WAS INTENDED TO EXPRESS THE CONCEPT THAT VOLUNTARY PAYMENTS WERE TO BE ENCOURAGED BUT NOT TO BE REQUIRED. HOWEVER, THE REGULATION CONTAINS LANGUAGE WHICH NEGATES, OR IS INCONSISTENT WITH, THE CONCEPT OF VOLUNTARY PAYMENTS: "SERVICES MAY BE CONDITIONED UPON PAYMENT IN APPROPRIATE CASES," "CHARGES MAY BE REDUCED IN INDIVIDUAL CASES," "PAYMENT MAY BE WAIVED.'

WE ARE OF THE VIEW THE PRESENT SECTION 36.13 DOES NOT CLEARLY REFLECT THE STATED ADMINISTRATIVE INTENT THAT CHARGES TO INDIANS THEREUNDER SHOULD NOT CONSTITUTE DEBTS DUE THE UNITED STATES. HOWEVER, AS WE ARE DEALING HERE WITH A REGULATION SUBJECT TO ADMINISTRATIVE MODIFICATION AND ONE PRIMARILY INVOLVING ADMINISTRATIVE POLICY OF AN INTERNAL NATURE, WE WILL ACCEPT THE INTERPRETATION ADVANCED AS THE OFFICIAL CONSTRUCTION OF SECTION 36.13; BUT IT REMAINS OUR VIEW THAT THE SECTION SHOULD BE REDRAFTED TO MORE CLEARLY REFLECT THE ADMINISTRATIVE POLICY AND TO ESTABLISH UNIFORMITY IN THE PRACTICES OF THE VARIOUS PUBLIC HEALTH SERVICE FACILITIES. OUR DECISION OF DECEMBER 31, 1960, TO THE EXTENT THAT IT IS INCONSISTENT WITH THE ABOVE NEED NOT BE FOLLOWED.

ACCORDINGLY, ANY CASE OF AN UNCOLLECTED MEDICAL CHARGE AGAINST AN INDIAN WHICH HAS BEEN REFERRED TO US FOR COLLECTION, AND WHICH IS STILL PENDING, WILL BE RETURNED TO THE PUBLIC HEALTH SERVICE.