allotments if considered reservation land by the Bureau of Indian Affairs.

Reside means living in a locality with the intent to make it a fixed and a permanent home. The following persons I will be deemed residents of the Health Service Delivery Area:

(1) Students who are temporarily absent from the Health Service Delivery Area during full time attendance at programs of vocational, technical, or academic education including normal school breaks;

(2) Persons who are temporarily absent from the Health Service Delivery Area for purposes of travel or employment (such as seasonal or migratory workers);

(3) Indian children placed in foster care outside the Health Service Delivery Area by order of a court of competent jurisdiction and who were residents within the Health Service Delivery Area at the time of the court order. Secretary means the Secretary of Health and Human Services and any other officer or employee of the Department of Health and Human Services to whom the authority involved has been delegated.

Service means the Indian Health Service.

Service Unit Director means the Director of Indian Health Service programs for a designated geographical or tribal area of responsibility or the equivalent official of a contractor administering an IHS program.

[52 FR 35048, Sept. 16, 1987, as amended at 55 FR 4609, Feb. 9, 1990]

§ 36.11 Services available.

(a) Type of services that may be available. Services for the Indian community served by the local facilities and program may include hospital and medical care, dental care, public health nursing and preventive care including immunizations, and health examination of special groups such as school children.

(b) Where services are available. Available services will be provided at hospitals and clinics of the Service, and at contract facilities (including tribal facilities under contract with the Service).

(c) Determination of what services are available. The Service does not pro

vide the same health services in eac area served. The services provided a any particular Indian community wi depend upon the facilities and service available from sources other than the Service and the financial and personne resources made available to the Serv ice.

(d) Priorities when funds, facilities, personnel are insufficient to provide the indicated volume of services. Priorities for care and treatment, as among int viduals who are within the scope of the program, will be determined on the basis of relative medical need and a cess to other arrangements for obtairing the necessary care.

[46 FR 40692, Aug. 11, 1981, as amended at 5 FR 35048, Sept. 16, 1987]

§ 36.12 Persons to whom health serv ices will be provided.

(a) Subject to the requirements of this subpart, the Indian Health Service will provide direct services at its facilities, and contract health services, as medically indicated, and to the extent that funds and resources allocated to the particular Health Service Delivery Area permit, to persons of Indian or Alaska Native descent who:

(1) Are members of a federally recognized Indian tribe; and

(2) reside within a Health Service Delivery Area designated under §36.15; or

(3) Are not members of a federally recognized Indian tribe but are the natural minor children (18 years old or under) of a member of a Federally recognized tribe and reside within a Health Service Delivery Area designated under §36.15.

(b) Subject to the requirements of this subpart, the Indian Health Service will also provide direct services at its facilities and, except where otherwise provided, contract health services, as medically indicated and to the extent that funds and resources allocated to the particular Health Service Delivery Area permit, to people in the circumstances listed below:

(1) To persons who meet the eligibility criteria in paragraph (a) of this section except for the residency requirement, who formerly resided within a Health Service Delivery area designated under §36.15, and who present themselves to any Indian Health Serv

Fce or Indian Health Service funded faility (and to minor children of such persons if the children meet the eligi

ility criteria in paragraph (a) of this section except for the residency requirement). Contract health services may not be authorized for these individuals;

(2) To a non-Indian woman pregnant with an eligible Indian's child but only during the period of her pregnancy through post-partum (generally about 6 weeks after delivery). In cases where the woman is not married to the eligible Indian under applicable state or tribal law, paternity must be acknowledged in writing by the Indian or determined by order of a court of competent jurisdiction;

(3) To non-Indian members of an eligible Indian's household if the medical officer in charge determines that the health services are necessary to control acute infectious disease or a public health hazard; and

(4) To an otherwise eligible person for up to 90 days after the person ceases to reside in a Health Service Delivery Area when the Service Unit Director has been notified of the move.

(c) Contract health services will not be authorized when and to the extent that Indian Health Service or Indian Health Service funded facilities are available to provide the needed care. When funds are insufficient to provide the volume of contract health services needed by the service population, the Indian Health Service shall determine service priorities on the basis of medical need.

(d) The Indian Health Service may provide direct services at its facilities on a fee-for-service basis to persons who are not beneficiaries under paragraphs (a) and (b) of this section under a number of authorities including the following:

(1) In emergencies under section 322(b) of the Public Health Service Act, 42 U.S.C. 249(b), and 42 CFR 32.111 of the regulations;

(2) To Public Health Service and other Federal beneficiaries under Economy Act (31 U.S.C. 1535) arrangements to the extent that providing services does not interfere with or restrict the provision of services to Indian and Alaska Native beneficiaries; and

(a) No payment will be made for medical care and services obtained from non-Service providers or in non-Service facilities unless the applicable requirements of paragraphs (b) and (c) below have been met and a purchase order for the care and services has been issued by the appropriate ordering official to the medical care provider.

(b) In non-emergency cases, a sick or disabled Indian, or an individual or agency acting on behalf of the Indian, or the medical care provider shall, prior to the provision of medical care and services, notify the appropriate ordering official of the need for services and supply information that the ordering official deems necessary to determine the relative medical need for the services and the individual's eligibility. The requirement for notice prior to providing medical care and services under this paragraph may be waived by the ordering official if:

(1) Such notice and information is provided within 72 hours after the beginning of treatment or admission to a health care facility; and

(2) The ordering official determines that giving of notice prior to obtaining the medical care and services was impracticable or that other good cause exists for the failure to provide prior notice.

(c) In emergency cases, a sick or disabled Indian, or an individual or agency acting on behalf of the Indian, or the medical care provider shall, within 72 hours after the beginning of treatment for the condition or after admission to a health care facility notify the appropriate ordering official of the fact of the admission or treatment, together with information necessary to

determine the relative medical need for the services and the eligibility of the Indian for the services. The 72-hour period may be extended if the ordering official determines that notification within the prescribed period was impracticable or that other good cause exists for the failure to comply.

[43 FR 34654, Aug. 4, 1978. Redesignated at 52 FR 35048, Sept. 16, 1987]

§ 36.14 Reconsideration and appeals.

(a) Any person who has applied for and been denied health services or eligibility by the Indian Health Service or by any contractor contracting to administer an Indian Health Service program or portion of a program, including tribes and tribal organizations contracting under the Indian Self-Determination Act, shall be notified of the denial in writing together with a statement of all the reasons for the denial. The notice shall advise the applicant that within 30 days from the receipt of the notice the applicant.

(b) If the original decision is affirmed on reconsideration, the applicant shall be so notified in writing and advised that an appeal may be taken to the area or program director within 30 days of receipt of the notice of the reconsidered decision. The appeal shall be in writing and shall set forth the grounds supporting the appeal.

(c) If the original or reconsidered decision is affirmed on appeal by the area or program director, the applicant shall be so notified in writing and advised that a further appeal may be taken to the Director, Indian Health Service, within 30 days of receipt of the notice. The appeal shall be in writing and shall set forth the grounds supporting the appeal. The decision of the Director, Indian Health Service, shall constitute final administrative action. (Approved by the Office of Management and Budget under control number 0915-0107)

[43 FR 34654, Aug. 4, 1978. Redesignated and amended at 52 FR 35048, 35049, Sept. 16, 1987] § 36.15 Health Service Delivery Areas.

(a) The Indian Health Service will designate and publish as a notice in the FEDERAL REGISTER specific geographic areas within the United States including Federal Indian reservations and

areas surrounding those reservatiz as Health Service Delivery Areas.

(b) The Indian Health Service after consultation with all the Int tribes affected, redesignate the bo aries of any Health Service Delive Area followed by publication of & tice in the FEDERAL REGISTER. Any » designation of a Health Service De ery area will include the reservatio and those areas close to the reserv tion boundaries which can reasona be considered part of the reservat service area based on consideration: the following factors:

(1) The number of persons residing: the off-reservation area who would b eligible under §36.12(a) (1) and (3).

(2) The number of persons residing the off-reservation area who have tra ditionally received health service from the Indian Health Service an whose eligibility for services would* affected;

(3) The geographic proximity of the off-reservation area to the reservation

and

(4) Whether the Indians residing in the off-reservation area can be er pected to need and to use health serv ices provided by the Indian Health Service given the alternate resources (health facilities and payment sources available and accessible to them.

(c) Notwithstanding paragraphs (8) and (b) of this section, the Indian Health Service may designate States. subdivisions of States such as counties or towns, or other identifiable geographic areas such as census divisions or zip code areas, as Health Service Delivery Areas where reservations are nonexistent, or so small and scattered and the eligible Indian population so widely dispersed that it is inappropri- | ate to use reservations as the basis for defining the Health Service Delivery Area.

(d) Any Indian tribal government may request a change in the boundaries of the Health Service Delivery Area. Such a request should be supported by documentation related to the factors for consideration set out in paragraph (b) of this section and shall include documentation of any consultation with or notification of other affected or nearby tribes. The request shall be submitted to the appropriate

yea Director(s) who shall afford all Inan tribes affected the opportunity to press their views orally and in writg. The Area Director(s) shall then bmit the request, including all coments, together with the Area's recnmendation and independent findings verification of the factors set out in aragraph (b) of this section, to the Inan Health Service Director or to the irector's designee for the Indian ealth Service decision. The decision f the Indian Health Service Director r the Director's designee shall contitute final agency action on the ribe's request. Changes in the boundAries of Health Service Delivery Areas vill be published in the FEDERAL REGSTER.

Approved by the Office of Management and Budget under control number 0915-0107) 52 FR 35049, Sept. 16, 1987]

§36.16 Beneficiary

Identification

Cards and verification of tribal membership.

(a) The Indian Health Service will issue Beneficiary Identification Cards as evidence of beneficiary status to persons who are currently eligible for services under §36.12(a). Persons requesting Beneficiary Identification Cards must submit or have on file evidence satisfactory to the Indian Health Service of tribal membership and residence within a Health Service Delivery Area. The absence of a Beneficiary Identification Card will not preclude an otherwise eligible Indian from obtaining services though it may delay the administrative determination that an individual is eligible for services on a no charge basis.

(b) For establishing eligibility or obtaining a Beneficiary Identification Card, applicants must demonstrate that they are members of a federally recognized tribe. Membership in a federally recognized tribe is to be determined by the individual tribe or the Bureau of Indian Affairs. Therefore, the Indian Health Service will recognize two methods of demonstrating tribal membership:

(1) Documentation that the applicant meets the requirements of tribal membership as prescribed by the charter, articles of incorporation, or other legal instruments or traditional processes of

the tribe and has been officially designated a tribal member by an authorized tribal official or body; or

(2) Certification of tribal enrollment or membership by the Secretary of the Interior acting through the Bureau of Indian Affairs.

(c) Demonstrating membership in a federally recognized tribe is the responsibility of the applicant. However, the Indian Health Service may consult with the appropriate tribe or the Bureau of Indian Affairs on outstanding questions regarding an applicant's tribal membership if the Indian Health Service has some documentation that it believes may be helpful to the tribe or the Bureau of Indian Affairs in making their determination.

(Approved by the Office of Management and Budget under control number 0915-0107) [50 FR 35050, Sept. 16, 1987]

Subpart C-(Reserved)

Subpart D-Transition Provisions

SOURCE: 52 FR 35050, Sept. 16, 1987, unless otherwise noted.

§36.31 Transition period.

(a) The transition period for full implementation of the new eligibility regulations consists of three parts;

(1) A six month delayed implementation;

(2) A six month grace period; and (3) A health care continuity period determined by medical factors.

§36.32 Delayed implementation.

(a) The eligibility requirements in subparts A and B of this part become effective March 16, 1988.

(b) During the six month delayed implementation period the former eligibility regulations will apply.

§ 36.33 Grace period.

(a) Upon the effective date referred to in §36.32(a), individuals who would lose their eligibility under the new eligilibity regulations published on September 16, 1987, and who have made use of an Indian Health Service of Indian Health Service funded service within three years prior to September 16, 1987 (date of publication of the new

Subpart G-Residual Status

$36,61 Payor of last resort.

(a) The Indian Health Service is the payor of last resort of persons defined an eligible for contract health services under these regulations, notwithstandIng any State or local law or regulation to the contrary.

(b) Accordingly, the Indian Health Hervice will not be responsible for or authorise payment for contract health services to the extent that:

(D) The Indian is eligible for alternate resources, as defined in paragraph (c),

( The Indian would be eligible for alternate resources if he or she were to apply for them, or

(b) The Indian would be eligible for Alternate resources under State or local law or regulation but for the IndiAn's eligibility for contract health services, or other health services, from the Indian Health Service or Indian Health Mervice funded programs.

(0) Alternate resources means health DATE FOROUEven other than those of the Indian Health Service. Such resources Include health care providers and institutions, and health care programs for the payment of health services includIng but not limited to programs under title XVIII and XIX of the Social Security Act (Le, Medicare, Medicaid), Aitate or local health care programs and private insurance.

155 11 4000, Feb. 9, 1990)

Subpart H-Grants for Develop

ment, Construction, and Operations of Facilities and ServIces

AUTHORITY: Secs, 104, 107, 25 U.S.C. 450h(b), 450k; Sec. 3, Pub. L. 83 568, 42 U.S.C. 2003.

SOURCE: 40 FR 53143, Nov. 14, 1975, unless otherwise noted.

§ 36.101 Applicability.

The regulations of this subpart are applicable to grants awarded pursuant to section 104(b) of Pub. L. 93-638, 25 U.S.C. 450h(b) for (a) projects for development including feasibility studies, construction, operation, provision, or maintenance of services and facilities provided to Indians and, (b) for projects

for planning, training, evalua other activities designed to the capacity of a tribal organism enter into a contract or contracta suant to section 103 of the Acts grants may include the cost of t personnel to perform grant relata. tivities.

$36.102 Definitions.

As used in this subpart:

(a) Act means Title I of the Self-Determination and Educatio sistance Act, Pub. L. 93-638 (88 52 2203).

(b) Indian means a person who i member of an Indian tribe.

(c) Indian tribe means any Ins tribe, band, nation, rancheria, Put colony or community, including Alaska Native Village or regional village corporation as defined in cre tablished pursuant to the Alaska & tive Claims Settlement Act, Pub. L. 203 (85 Stat. 688 which is recognised eligible by the United States GOVE ment for the special programs services provided by the United State to Indians because of their status asè dians.

(d) Tribal organization means:

(1) The recognized governing body any Indian tribe; or

(2) Any legally established organis tion of Indians which is:

(i) Controlled, sanctioned or cha tered by such governing body or bodie

or

(ii) Democratically elected by the adult members of the Indian comme nity to be served by such organizatio and which includes the maximum par ticipation of Indians in all phases of activities.

(e) Secretary means the Secretary c the Department of Health and Huma Services and any other officer or em ployee of the Department of Health and Human Services to whom the authority involved has been delegated.

(f) Grantee means the tribe or tribal organization that receives a grant under section 104(b) of the Act and this subpart and assumes the legal and fi nancial responsibility for the funds awarded and for the performance of the grant supported activity in accordance with the Act and these regulations.