Chapter 27 - Responding to Requests for IHS Employee's Testimony
or IHS Documents in Proceedings where the United States is not a Party

Title	Section
Introduction	5-27.1
Purpose	5-27.1A
Acronyms and Abbreviations	5-27.1B
Authorities	5-27.1C
Policy	5-27.1D
Definitions	5-27.1E
Responsibilities	5-27.2
Director, IHS	5-27.2A
Area Director	5-27.2B
Chief Executive Officer	5-27.2C
Indian Health Service Employees	5-27.2D
Office of the General Counsel	5-27.2E
General Requirements for Responding to Requests for IHS Employee's Testimony in Cases where the United States is not a Party	5-27.3
Compliance	5-27.3A
Insufficient Service	5-27.3B
General Requirements for Responding to Requests for IHS Documents in Cases where the IHS is not a Party	5-27.4
Subpoenas Served	5-27.4A
Department of Health and Human Services Policy	5-27.4B
Disclosure	5-27.4C
Touhy Regulations	5-27.4D
Requirements that Apply to Expert Witness Testimony	5-27.5

Exhibit	Description
Manual Exhibit 5-27-A	Administrative Delegation of Authority ##27, "Response to Subpeonas and Requests for Documents or Testimony (Other than Expert Testimony)"
Manual Exhibit 5-27-B	Special General Memorandum No. 2015-02, "Guidance for Areas to Create Internal Policies and Procedures for IHS Employees to Provide Testimony or Documents in a Timely Manner"

5-27.1  Introduction

1. Purpose:  This chapter establishes a national Indian Health Service (IHS) policy for responding to subpoenas or requests for testimony or documents from Tribal, State or Federal courts and administrative tribunals where the United States is not a party.

   Another purpose of this policy is to inform IHS employees of the new policy and procedures for implementing the Tribal Law and Order Act (TLOA) of 2010, which amended the Indian Law Enforcement Reform Act, 25 United States Code (U.S.C.) § 2813.

   This policy was written recognizing Congress's declaration that it is the policy of this Nation "in fulfillment of its special trust responsibilities and legal obligations to Indians . . . to ensure the highest possible health status for Indians and urban Indians and to provide all resources necessary to effect that policy," [Indian Health Care Improvement Act (IHCIA), as amended by § 1022(a) of Public Law (Pub. L.) 111-148, 25 U.S.C. § 1602].  The IHS, in fulfillment of this special responsibility, will use this policy to ensure that not only will the physical, spiritual, social, and mental health of Tribal members be elevated via the various Indian health systems, but also that IHS employees comply with laws and regulations enacted, and addressed in this policy.

2. Acronyms and Abbreviations.
   1. CEO - Chief Executive Officer
   2. C.F.R. - Code of Federal Regulations
   3. FOIA - Freedom of Information Act
   4. HIPAA - Health Insurance Portability and Accountability Act
   5. HHS - Department of Health and Human Services
   6. IHCIA - Indian Health Care Improvement Act
   7. IHS - Indian Health Service
   8. OGC - Office of the General Counsel
   9. OMS - Office of Management Services
   10. TLOA - Tribal Law and Order Act
   11. U.S.C. - United States Code
3. Authorities.
   1. Administrative Delegation #27, Indian Health Manual (IHM), September 23, 2013.
   2. Freedom of Information Act, 5 U.S.C. § 552 and 45 C.F.R. Part 5 as amended.Exit Disclaimer: You Are Leaving www.ihs.gov 

      Title 45 volume 45 part 5Exit Disclaimer: You Are Leaving www.ihs.gov 

   3. Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 C.F.R. Part 164Exit Disclaimer: You Are Leaving www.ihs.gov 
   4. HHS "Touhy Regulations," 45 C.F.R. Part 2.Exit Disclaimer: You Are Leaving www.ihs.gov 
   5. IHS Sexual Assault policy,Part 3, Chapter 29, IHM.
   6. Indian Law Enforcement Reform Act, as amended by the Tribal Law and Order Act (TLOA), 25 U.S.C. § 2813Exit Disclaimer: You Are Leaving www.ihs.gov 
   7. Privacy Act (5 U.S.C. § 552aExit Disclaimer: You Are Leaving www.ihs.gov  and 45 C.F.R. Part 5b)Exit Disclaimer: You Are Leaving www.ihs.gov 
   8. Department of Health and Human Services, Service of Process Regulations at 45 C.F.R. Part 4.Exit Disclaimer: You Are Leaving www.ihs.gov 
4. Policy.

   This policy applies to any subpoena or request for testimony or documents pertaining to a matter where the United States is not a party.  It is IHS policy for the Director to respond to requests for an IHS employee's testimony and agency documents:

   1. In a timely and efficient manner.
   2. In compliance with the relevant laws, regulations, and policies.
   3. After communication with all of the affected parties, including, but not limited to, the following:
      1. The respective IHS Area Director, the Department of Health and Human Services (HHS), Office of the General Counsel (OGC), local Chief Executive Officer (CEO), the requested employee and other staff at the subpoenaed employee's place of employment; and
      2. Tribal, State and Federal government representatives, and affected programs, or private counsel as needed or required to respond to the subpoena or document request.
   4. The Director will make the final determination as to how to respond to each request on a case-by-case basis in consultation with OGC.
   5. The IHS and OGC will not accept verbal requests for testimony or documents.  Accordingly, anyone making an oral request for testimony or documents will be directed to submit the request in writing.  Moreover, if a request is not in writing, it may not be possible to ascertain "the date that is 30 days after the date of receipt" under 25 U.S.C. §2813(b)(2).
5. Definitions.
   1. Appropriate Federal employee.  [25 U.S.C. § 2813(a)(2)].  The term "appropriate Federal employee," as used in 25 U.S.C. § 2813(a)(2), refers to those persons identified in HHS regulations at 45 C.F.R. §§ 4.2 and 4.3.
   2. Declaration or Affidavit.  A declaration is a written statement made under penalty of perjury, but not under oath before a notary or other officer with the authority to administer an oath.  An affidavit is a written statement made under oath before a notary public or other officer authorized to administer oaths.
   3. Director.  The term "Director" is defined as the Director of Indian Health Service, or her or his appointed delegate.
   4. Delegation of Authority.  Delegation of Authority is an action by which authority vested in one official may be shared with or transferred to another official.  It may involve program authority, administrative authority, or both.  It generally includes the authority to sign a legal document approving the taking of action by others.  It not only empowers the delegate(s) with authority, but may establish limitations on the exercise of the authority by others.  Delegation and redelegation are actions of sharing or transferring legal authority.  The term "delegation" describes the initial assignment of authority, while the term "redelegation" describes the reassignment of that authority.  (HHS Chapter 8-100, General Administration Manual, Issuance date:  February 9, 2007Exit Disclaimer: You Are Leaving www.ihs.gov 
   5. Deposition.   A proceeding in which a witness or party is asked to answer questions orally under oath before a court reporter.
   6. Documents.  In addition to hard copies of documents (i.e., writings on paper), the term "documents" also includes electronically stored information (ESI) -including writings, drawings, graphs, charts, photographs, sound recordings, video recordings, images, fingerprints, voiceprints, and any other data or data compilations-stored in any medium, digital or otherwise, from which information can be obtained either directly or indirectly in a reasonably usable form.
   7. Employees.  Those individuals defined as an "Employee of the Department," at 45 C.F.R. § 2.2.Exit Disclaimer: You Are Leaving www.ihs.gov 
   8. Expert Testimony.  In this policy, the term "expert testimony" is defined as used in the Administrative Delegation #27, and refers to when an employee serves as expert witness in connection with professional and consultative services as approved outside activities in accordance with 5 C.F.R. Part 5501, § 5501.106(d).
   9. Impartiality.  As used in 25 U.S.C. § 2813(b)(1) and 45 C.F.R. §2.1(b), "impartiality" is defined as not displaying the appearance of favoritism or bias toward any party, or position taken by a party, with respect to private litigants.
   10. Interrogatories.  Interrogatories are part of the pre-trial discovery (fact-finding) process in which a witness provides written answers to written questions, under oath.  The answers must be returned within a specified time, usually 30 days, and often can be used as evidence in the trial.
   11. Notice of a request to provide testimony or release a document.  In order to constitute "notice" of a request to provide testimony or release a document under 25 U.S.C. § 2813, a party requesting testimony or documents must deliver the request, in writing, to the "appropriate Federal employee."  IHS and OGC, HHS, will not accept verbal requests for testimony or documents.  If a request is not in writing, it may not be possible to ascertain "the date that is 30 days after the date of receipt" pursuant to 25 U.S.C. § 2813(b)(2).
   12. Office of the General Counsel.  The OGC is the legal team for the HHS.  The OGC provides quality legal representation on a wide range of departmental issues.  It should be noted that OGC is a single entity that has both Headquarters and Regional Offices and that work is allocated among and within these offices by OGC managers.
   13. Other similar criminal proceedings.  According to 25 U.S.C. § 2813(a)(1), the Director shall approve or disapprove, in writing any requests or subpoena from a Tribal or State court for an employee to provide documents or testimony in a deposition, a trial, or "other similar criminal proceedings."  As used in 25 U.S.C. § 2813(a)(1), "other criminal proceedings" include but are not limited to mean:  an oral statement or document made pursuant to an affidavit, a declaration, and/or a preliminary hearing leading to the prosecution of a perpetrator in a criminal matter.
   14. Request.  A written demand for testimony or documents submitted to the appropriate federal employee must be in writing.
   15. Subpoena.  A subpoena "commands" each person to whom it is directed to attend and give testimony or produce documents or tangible things in the possession, custody or control of that person, at a specified time and place.  Subpoenas may be issued on the signature of an attorney or a court clerk, without a court order.
   16. Testify or Testimony.  Testify and testimony includes both in-person, oral statements before a court, legislative or administrative body and statements made pursuant to depositions, interrogatories, declarations, affidavits, or other formal participation.  (45 C.F.R. § 2.2)
   17. Touhy Regulations. 45 C.F.R. Part 2.  Commonly referred to as the "Touhy" regulations, these regulations govern official duty testimony by employees in proceedings where the United States is not a party.  They also contain instructions for responding to subpoenas duces tecum, i.e., demands for documents.
   18. Witness.  A person who testifies under oath in a trial or deposition or other legal proceeding, either based on first-hand knowledge or expertise in a specialized field of endeavor.

5-27.2  RESPONSIBILITIES.

1. Director, IHS.  The Director, IHS, is responsible for:
   1. Directing Area Directors and Service Unit CEOs to identify and ensure that the resource needs are met to implement this policy.
   2. Approving or denying in writing, within 30 days of receipt, any subpoena or similar request for a current or former IHS employee to provide testimony or documents in a deposition, trial or similar judicial or administrative proceeding regarding information obtained in carrying out their official duties.
   1. The Director, IHS, by Delegation of Authority, extends the authority to approve or deny requests for testimony by Federal employees in civil, criminal, and administrative cases to the Area Directors, as well as the Deputy Director of IHS, the Deputy Director for Field Operations, the Deputy Director for Management Operations, the Deputy Director for Inter-Governmental Affairs and the Chief Medical Officer (Manual Exhibit 5-27-A, Delegation of Authority, Administrative #27, "Response to Subpoenas and Requests for Documents or Testimony (Other than Expert Testimony)."
   2. Subpoenas or requests for documents or testimony in criminal proceedings for sexual assault, sexual abuse, and domestic violence, and similar crimes, must be approved or disapproved within 30 days after receipt or the subpoenas and requests will be deemed approved.  [25 U.S.C. 2813 (b)(2)]
   3. Ensuring subpoenaed or requested IHS employees detailed to an outside entity (e.g., Tribal organization or another Agency) comply with this policy through an "agreement for use of personnel."  The Director may consult with the affected entity to determine the impact an employee's absence, to provide testimony, will have on the entity's operations.
   4. Developing a Special General Memorandum (SGM) (See Manual Exhibit 5-27-B) to provide guidance to the Areas for creating internal policies and procedures to ensure that once the request for an employee to provide testimony is approved, the following occurs:
      1. The employee shall be notified immediately in writing (within 24 hours, and no later than the next business day, upon receipt of the request) that he or she may be required to provide testimony, if approved by the Director.  Additionally, after the IHS Director or the Director's delegate approves the request, then the employee shall be notified immediately in writing (within 24 hours and no later than the next business day) that the subject employee is approved to testify;
      2. Internal procedures or policies for continuity of patient care are implemented, and/or the employee's other duties are covered, during the requested employee's absence;
      3. The requested employee's supervisor(s) are informed, and administrative leave for the subject employee is approved without delay;
      4. Where employee's testimony is requested for domestic violence, sexual assault, sexual abuse or similar criminal cases, the subject employee's work schedule must be rearranged immediately (within 24 hours of receipt of the request, or the next business day, and prior to receipt of the Director's letter of approval) in anticipation of the employee providing testimony;
      5. Tribal, State, Federal or administrative tribunal deadlines are met when practical and legally permissible, and if trial dates are changed, the employee will work with his or her supervisor to rearrange schedules and obtain administrative leave for the new date when possible;
      6. If the requester seeks access to the subject IHS employee beyond the employee's appearance at trial, then the appropriate IHS official consults with OGC; and
      7. The subject IHS employee does not testify unless the request is approved by the Director, or appointed delegate.  If approval is given by the Director, then the employee is held accountable to appear to testify.  If a request for testimony is not approved, then the employee must not testify.
   5. Providing guidance in the SGM to ensure that IHS Headquarters and Area Offices, in coordination with OGC, maintain updated records to track the number of requests received and approved or denied.
   6. Evaluating this policy annually and updating it as needed.
2. Area Director.  When delegated by the Director, IHS, the Area Director may not redelegate this authority.  The Area Director is responsible for:
   1. Ensuring that administrative support and the necessary funds and resources are made available to implement this policy in his or her Area.
   2. All requests for a subpoena or other form of request (i.e., verbal) to provide documents or testimony must be made in writing.
   3. Directing IHS CEOs and other management staff under the CEO's supervision to immediately notify the Area Director when they or their respective employees (including those who may be stationed at non-IHS offices or facilities) receive a subpoena or other form of request (i.e., verbal) to provide documents or testimony regarding information obtained in carrying out the official duties of the employee (within 24 hours, and no later than the next business day, of receipt).
   4. Area Directors must designate individuals within their Area (e.g., CEOs, Risk Management, Medical Records and/or FOIA representatives) to respond to these verbal requests.  In the case of a verbal request for testimony or documents any IHS employee that receives a verbal request should immediately forward the call, or information received from the caller, to the designated individual(s).
   5. All designated individual(s) must:
      1. inform the requestor that verbal requests will not be accepted and instruct the caller to submit the request in writing to the Director, IHS or her or his appointed delegate.  Further, in the case of a Touhy request (one not involving sexual assault, sexual abuse, domestic violence, or other similar crimes) the caller should be referred to the Touhy regulations (45 C. F. R. Part 2);
      2. obtain and document the name and contact information of the requester and the date and time the verbal request was received; and
      3. notify the Area Director, or his or her designee, that a request may be forthcoming.
   6. Ensuring that the subpoena or request to testify has been immediately scanned and emailed (within 24 hours, and no later than the next business day, of receipt) to OGC.  In the case of a verbal request, the Area Director will also immediately convey the name and contact information of the caller to OGC.
   7. Where applicable, ensure existing FOIA, HIPAA Privacy Rule, and Privacy Act procedures are followed.  For example, if there is a signed consent for release of a victim's records, or OGC advises that there is a valid law enforcement request under the Privacy Act, then these records could be released at the records custodian level.
   8. The Area Director may adopt written policies, in consultation with OGC, to pre-approve testimony in specified routine matters.  (Manual Exhibit 5-27-A, Administrative Delegation #27)
   9. Ensuring Area staff complies with the Director's SGM for approved requests for employees to provide testimony (refer to 5-27.2, Responsibilities, A. Director, IHS (4), and Manual Exhibit 5-27-B).
   10. Ensuring that Area Office(s) staff collaborate with OGC staff to comply with the Director's guidance to maintain updated and accurate records to track the number of requests for testimony received and approved or denied.
3. Chief Executive Officer.  The CEO, or his or her appointed delegate is responsible for:
   1. Notifying IHS supervisors and employees under his or her supervision that they must inform the CEO, immediately, when the employee receives a subpoena or other form of request to provide documents or testimony in a deposition, trial or other court proceeding regarding information obtained in carrying out the official duties of the employee (within 24 hours, and no later than the next business day, of receipt).  In cases of oral requests, the CEO or other authorized employees must:
      1. instruct the requestor to submit the request in writing;
      2. inform the requestor that HHS, IHS, and/or OGC will not accept verbal requests; and
      3. provide the respective Area Director and, if the Area Director instructs, OGC with the name and contact information of the caller. Areas and Service Units may create internal procedures and/or policies to expedite this time-sensitive process.
   2. Scanning and emailing, or faxing the subpoena or request to testify to the respective Area Director office immediately (within 24 hours, and no later than the next business day, of receipt), when notified by an IHS employee, and/or his or her supervisor, that the employee has received a subpoena or other form of request (i.e., verbal) to provide documents or testimony regarding information obtained in carrying out the official duties of the employee.  In the case of a verbal request, the CEO or other authorized employees will immediately:
      1. convey the name and contact information of the caller and the date and time the call was received to their respective Area Director and, if the Area Director instructs, OGC;
      2. direct the requestor to submit his or her request in writing to the IHS Director or his or her designee; and
      3. inform the requestor that verbal requests will not be accepted.
   3. Ensuring that their respective IHS employees obtain prior approval from the IHS Director or his or her designee before providing testimony in any administrative or judicial proceeding.
   4. Ensuring Service Unit staff comply with the Director's SGM for approved requests for employees to provide testimony (refer to 5-27.2A(4) and Manual Exhibit 5-27-B).
4. Indian Health Service Employees.  All IHS employees, including those who are detailed or stationed at entities outside of IHS (e.g., Tribal organizations or other Federal agencies), must obtain prior approval from the IHS Director, or appointed designee, before providing testimony or documents in any judicial or administrative proceeding where the United States is not a party.
   1. An IHS employee must immediately notify, verbally and in writing, his or her IHS supervisor and/or the CEO (if they are stationed at a Service Unit) that he or she has received a subpoena or request to testify or to provide documents in a court or an administrative proceeding (within 24 hours, and no later than the next business day, of receipt).  The subject employee must also submit a copy of the subpoena or request to his or her supervisor and/or the CEO.  IHS employees are expected to report to their immediate supervisor, following the established chain of command.
   2. In the event that an employee receives a verbal request for testimony, the employee must provide his or her supervisor and/or CEO with the name and contact information of the caller, within 24 hours or the next working day.
   3. The subject IHS employee is not permitted to testify unless the request is approved by the Director.  Once approved, the employee is held accountable to appear to testify.  If a request for testimony is not approved, then the employee must not testify.
5. Office of the General Counsel.  The OGC responsibilities include:
   1. Advising IHS staff on all legal issues surrounding the subpoena or request for testimony or documents, as needed.
   2. Collaborating with IHS staff in order to maintain updated records to track the number of requests received and approved or denied.

5-27.3  GENERAL REQUIREMENTS FOR RESPONDING TO REQUESTS FOR IHS EMPLOYEES' TESTIMONY IN CASES WHERE THE UNITED STATES IS NOT A PARTY

1. Compliance.  Subpoenas served upon the IHS Director and IHS employees must comply with HHS regulations at 45 C.F.R. Part 4.
2. Insufficient Service.  In cases other than sexual assault, sexual abuse, domestic violence, and similar criminal acts, a subpoena served alone is insufficient.  The requestor must submit a Touhy request letter that complies with 45 C.F.R. Part 2.  Commonly referred to as the "Touhy" regulations, these regulations govern official duty testimony by employees in proceedings where the United States is not a party.  The Touhy regulations (45 C.F.R. Part 2) state that all requests for testimony by an employee of the IHS in his or her official capacity must be addressed to the Director in writing, and provide the following:
   1. The nature of the requested testimony.
   2. Why the information sought is unavailable by any other means.
   3. Reasons why it would be in the best interests of HHS or the Federal government, given the circumstances, to provide the requested testimony and/or documents.  An HHS employee may not provide testimony concerning information acquired in the course of performing official duties until IHS consults with OGC and determines that compliance with the request would promote the objectives of the department.  (45 C.F.R. § 2.3)
   4. Where the request for testimony is directed to a clinician who treated a victim of a violent crime, there is a presumption that allowing the testimony would be in the best interest of the IHS.
   5. The testimony should be based on factual or direct knowledge of the IHS employee regarding actions taken while carrying out his or her official duties.
   6. The IHS Director, by delegation of authority, extends the authority to approve or deny requests for testimony by Federal employees in civil, criminal, and administrative cases to the Area Directors, as well as the Deputy Director of IHS, the Deputy Director for Field Operations, the Deputy Director for Management Operations, the Deputy Director for Inter-Governmental Affairs and the Chief Medical Officer (See Manual Exhibit 5-27-A, Administrative Delegation #27).
   7. Subpoenas, requests for documents or testimony in certain criminal proceedings must be approved or disapproved within 30 days after receipt or the subpoenas and requests will be deemed approved.  [25 U.S.C. 2813 (b)(2)]
   8. Parties shall be encouraged to take testimony in the matter that will result in the minimum disruption of an employee's official duties.  The approving official must weigh the requestor's stated need for the testimony and the resultant disruption of the employee's official duties.  Approval to testify may be subject to reasonable conditions regarding the time, place, and manner for the taking of the testimony (See Manual Exhibit 5-27-A, Administrative Delegation #27).  Thus, in descending order of preference, the methods of testimony are:
      1. declaration or affidavit,
      2. deposition,
      3. videoconferencing, or
      4. personal appearance before the court or other body.
   9. When contracting with a provider, language shall be included in contract agreements to mandate the provider's cooperation with appropriate IHS managers when the contracted providers are subpoenaed or requested by Tribal, State or Federal parties to provide testimony.

5-27.4  GENERAL REQUIREMENTS FOR RESPONDING TO REQUESTS FOR IHS DOCUMENTS IN CASES WHERE THE IHS IS NOT A PARTY

1. Subpoenas Served.  Subpoenas served upon the IHS Director and IHS employees must comply with HHS regulations at 45 C.F.R. Part 4.
2. Department of Human and Health Services Policy.  It is the policy of the HHS to provide information, data, and records to non-Federal litigants to the same extent and in the same manner that they are made available to the general public and, when subject to the jurisdiction of a court or other tribunal presiding over non-Federal party litigation, to follow all applicable procedural and substantive rules relating to the production of information, data, and records by a non-party [45 C.F.R. 2.1(b)].
3. Disclosure.  The disclosure of documents must be consistent with the requirements of FOIA, the Privacy Act, the HIPAA Privacy Rule, and any other applicable Federal laws or regulations.
4. Touhy Regulations.  According to HHS Touhy regulations [see 45 C.F.R. § 2.5(b)], subpoenas issued by a state or tribal court and other requests for documents are treated as FOIA requests.  The IHS will generally release documents pursuant to FOIA as long as release is consistent with the Privacy Act and the HIPAA Privacy Rule.  In the case of a subpoena for documents issued by a federal court, if OGC advises that the subpoena is valid and properly served, then IHS will comply with the subpoena, in consultation with OGC.  In addition, if the documents requested are part of a system of records under the Privacy Act, unless the subject individual has consented, documents will be disclosed only if authorized by one the subparagraphs of 45 C.F.R. § 5b.9(b) and as consistent with the HIPAA Privacy Rule.  However, requests that pertain to documents that fall under the requirements of the TLOA and the IHS Medical Quality Assurance protection codified at 25 U.S.C. § 1675 are not subjected to FOIA.

5-27.5  REQUIREMENTS THAT APPLY TO EXPERT WITNESS TESTIMONY

This section provides direction for IHS employees who are requested by entities to provide "expert testimony" as described in Manual Exhibit 5-27-A, Administrative Delegation #27.

The Director, IHS, retains the authority to approve or disapprove all requests for an employee to provide expert testimony where the United States is not a party, in accordance with 5 C.F.R. § 2635.805(c) and 5 C.F.R. § 5501.106.  When there is a subpoena or request for personnel to provide "expert testimony," only the Director, IHS, may approve or deny the request, and this authority may not be redelegated.  (See Manual Exhibit 5-27-A, Administrative Delegation #27.)  Additionally, if an employee wishes to provide expert witness testimony as part of her or his official duties, in cases where the United States is not a party, then the request should immediately be forwarded to the Director, IHS.  The Director's office staff will coordinate the review and approval of the request on behalf of the Director in consultation with OGC.  The contact information is: