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section except for the residency re- only to the extent that providing servquirement). Contract health services ices does not interfere with or restrict may not be authorized for these indi- the provision of services to Indian and viduals;
Alaska Native beneficiaries. (2) To a non-Indian woman pregnant with an eligible Indian's child but only
(Approved by the Office of Management and
Budget under control number 0915-0107) during the period of her pregnancy through post-partum (generally about 6 (52 FR 35048, Sept. 16, 1987, as amended at 55 weeks after delivery). In cases where
FR 4609, Feb. 9, 1990) the woman is not married to the eligible Indian under applicable state or
$36.13 Authorization for contract
health services. tribal law, paternity must be acknowledged in writing by the Indian or deter- (a) No payment will be made for medmined by order of a court of competent ical care and services obtained from jurisdiction;
non-Service providers or in non-Service (3) To non-Indian members of an eli- facilities unless the applicable requiregible Indian's household if the medical ments of paragraphs (b) and (c) below officer in charge determines that the have been met and a purchase order for health services are necessary to con- the care and services has been issued trol acute infectious disease or a public by the appropriate ordering official to health hazard; and
the medical care provider. (4) To an otherwise eligible person for
(b) In non-emergency cases, a sick or up to 90 days after the person ceases to
disabled Indian, or an individual or reside in a Health Service Delivery
agency acting on behalf of the Indian, Area when the Service Unit Director
or the medical care provider shall, has been notified of the move.
prior to the provision of medical care (c) Contract health services will not
and services, notify the appropriate orbe authorized when and to the extent
dering official of the need for services that Indian Health Service or Indian
and supply information that the orderHealth Service funded facilities are
ing official deems necessary to deteravailable to provide the needed care.
mine the relative medical need for the When funds are insufficient to provide
services and the individual's eligithe volume of contract health services needed by the service population, the
bility. The requirement for notice prior Indian Health Service shall determine
to providing medical care and services service priorities on the basis of med
under this paragraph may be waived by ical need
the ordering official if: (d) The Indian Health Service may
(1) Such notice and information is provide direct services at its facilities
provided within 72 hours after the beon a fee-for-service basis to persons
ginning of treatment or admission to a who are not beneficiaries under para
health care facility; and graphs (a) and (b) of this section under
(2) The ordering official determines a number of authorities including the
that giving of notice prior to obtaining following:
the medical care and services was im(1) In emergencies under section practicable or that other good cause 322(b) of the Public Health Service Act,
exists for the failure to provide prior 42 U.S.C. 249(b), and 42 CFR 32.111 of the notice. regulations;
(c) In emergency cases, a sick or dis(2) To Public Health Service and abled Indian, or an individual or agenother Federal beneficiaries under Econ- cy acting on behalf of the Indian, or omy Act (31 U.S.C. 1535) arrangements the medical care provider shall, within to the extent that providing services 72 hours after the beginning of treatdoes not interfere with or restrict the ment for the condition or after admisprovision of services to Indian and sion to a health care facility notify the Alaska Native beneficiaries; and
appropriate ordering official of the fact (3) To non-beneficiaries residing of the admission or treatment, towithin the Health Service Delivery gether with information necessary to Area when approved by the tribe or determine the relative medical need for tribes located on the reservation but 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)
(b) The Indian Health Service may, after consultation with all the Indian tribes affected, redesignate the boundaries of any Health Service Delivery Area followed by publication of a notice in the FEDERAL REGISTER. Any redesignation of a Health Service Delivery area will include the reservation, and those areas close to the reservation boundaries which can reasonably be considered part of the reservation service area based on consideration of the following factors:
(1) The number of persons residing in the off-reservation area who would be eligible under $ 36.12(a) (1) and (3).
(2) The number of persons residing in the off-reservation area who have traditionally received health services from the Indian Health Service and whose eligibility for services would be 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 expected to need and to use health services provided by the Indian Health Service given the alternate resources (health facilities and payment sources) available and accessible to them.
(c) Notwithstanding paragraphs (a) 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 inappropriate 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 Area Director(s) who shall afford all Indian tribes affected the opportunity to
§ 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 reservations as Health Service Delivery Areas.
express their views orally and in writing. The Area Director(s) shall then submit the request, including all comments, together with the Area's recommendation and independent findings or verification of the factors set out in paragraph (b) of this section, to the Indian Health Service Director or to the Director's designee for the Indian Health Service decision. The decision of the Indian Health Service Director or the Director's designee shall constitute final agency action on the tribe's request. Changes in the boundaries of Health Service Delivery Areas will be published in the FEDERAL REGISTER. (Approved by the Office of Management and Budget under control number 0915-0107) (52 FR 35049, Sept. 16, 1987)
ignated 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.
836.16 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 des
$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 eligibility regulations) shall retain cian, all other conditions being met including medical priorities.
(3) Those under treatment for chronic degenerative conditions may be provided additional treatment at Indian Health Service expense for no longer than 1 year beyond the end of the grace period notwithstanding any determination that it was otherwise safe to transfer treatment to other providers, all other conditions being met including medical priorities.
(b) All patients receiving care under paragraph (a) of this section shall be notified in writing that, after discharge from care provided under any of the above circumstances, they will longer be eligible for services as Indian Health Service beneficiaries. Such notice shall include an explanation of their appeal rights as provided in 836.14 of this part. These patients shall be offered assistance in locating other health care providers and medical assistance programs.
Subpart E Preference in
their eligibility for a six month grace period ending September 16, 1988. During this grace period such individual's eligibility will continue to be determined under the former regulations except that the new residency requirements established by subparts A and B must be met for the individual to be eligible.
(b) All individuals who receive services during the grace period based on paragraph (a) of this section and whose eligibility will terminate on September 16, 1988, shall be notified in writing that after September 16, 1988 they will no longer the eligible for services as Indian Health Service beneficiaries. Such written notice should include an explanation of their appeal rights as provided in $36.14 of the part. These patients shall be offered assistance in locating other health care providers and medical assistance programs. 8 36.34 Care and treatment of people
losing eligibility. (a) Individuals who lose their eligibility on September 16, 1988, (end of the grace period) and on that date are actively undergoing treatment may still be provided services for a limited period in the following circumstances;
(1) Inpatients in IHS and IHS funded facilities and those receiving inpatient care under contract, including contract health services, may continue to receive such care and necessary follow-up services at Indian Health Service expense until the need for hospitalization and follow-up services has ended as determined by the responsible Indian Health Service or tribal physician, all other conditions being met including medical priorities;
(2) Those actively undergoing course of outpatient treatment either in Indian Health Service and Indian Health Service funded facilities or through contract health services, termination of which would impair the health of the individual patient, may continue to receive the treatment at Indian Health Service expense for a reasonable length of time, until the course of treatment reaches a point where it may safely be terminated or the patient transferred to other providers as determined by the responsible Indian Health Service or tribal physi
AUTHORITY: 25 U.S.C. 44, 45, 46 and 472; Pub. L. 83-568, 42 U.S.C. 2003.
8 36.41 Definitions.
For purposes of making appointments to vacancies in all positions in the Indian Health Service a preference will be extended to persons of Indian descent who are:
(a) Members of any recognized Indian tribe now under Federal jurisdiction;
(b) Descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation;
(c) All others of one-half or more Indian blood of tribes indigenous to the United States;
(d) Eskimos and other aboriginal people of Alaska; or
(e) Until January 4, 1990 or until the Osage Tribe has formally organized, whichever comes first, a person of at least one-quarter degree Indian ancestry of the Osage Tribe of Indians, whose rolls were closed by an act of Congress. (43 FR 29783, July 11, 1978, as amended at 54 FR 48246, Nov. 22, 1989)
practice medicine and surgery at an Indian Health Service or tribally run facility, or by the State in which he or she practices.
$36.42 Appointment actions.
(a) Preference will be afforded a person meeting any one of the definitions of $36.41 whether the placement in the position involves initial appointment, reappointment, reinstatement, transfer, reassignment, promotion, or any other personnel action intended to fill a vacancy.
(b) Preference eligibles may be given a schedule A excepted appointment under 5 CFR 213.3116(b)(8). If the individuals are within reach on a Civil Service Register, they may be given a competitive appointment. (43 FR 29783, July 11, 1978]
$36.53 General rule.
Federal funds may not be used to pay for or otherwise provide for abortions in the programs described in $36.51, except under the Circumstances discribed in 836.54.
$36.43 Application procedure for pref
erence eligibility. To be considered a preference eligible, the person must submit with the employment application a Bureau of Indian Affairs certification that the person is an Indian as defined by $36.41 except that an employee of the Indian Health Service who has a certificate of preference eligibility on file in the Official Personnel Folder is not required to resubmit such proof but may instead include a statement on the application that proof of eligibility is on file in the Official Personnel Folder. [43 FR 29783, July 11, 1978]
$36.54 Life of the mother would be en.
dangered. Federal funds are available for an abortion when a physician has found and so certified in writing to the appropriate tribal or other contracting organization, or service unit or area director, that “on the basis of my professional judgement the life of the mother would be endangered if the fetus were carried to term.” The certification must contain the name and address of the patient.
$36.55 Drugs and devices and termi
nation of ectopic pregnancies. Federal funds are available for drugs or devices to prevent implantation of the fertilized ovum, and for medical procedures necessary for the termination of an ectopic pregnancy.
Subpart Abortions and Related
Medical Services in Indian
$36.56 Recordkeeping requirements.
Documents required by $36.54 must be maintained for three years pursuant to the retention and custodial requirements for records at 45 CFR 74.20 et seq.
AUTHORITY: Sec. 1, 42 Stat. 208, 25 U.S.C. 13; sec. 1, 68 Stat. 674, 42 U.S.C. 2001; sec. 3, 68 Stat. 674, 42 U.S.C. 2003.
SOURCE: 47 FR 4018, Jan. 27, 1982, unless otherwise noted. $36.51 Applicability.
This subpart is applicable to the use of Federal funds in providing health services to Indians in accordance with the provisions of subparts A, B, C, H, I and J of this part.
Information which is acquired in connection with the requirements of this subpart may not be disclosed in a form which permits the identification of an individual without the individual's consent, except as may be necessary for the health of the individual or as may be necessary for the Secretary to monitor Indian Health Service program activities. In any event, any disclosure shall be subject to appropriate safeguards which will minimize the likelihood of disclosures of personal information in identifiable form.
As used in this subpart:
Physician means a doctor of medicine or osteopathy legally authorized to