Chapter 2 - Payment For Services And Others

Dr. Aaron W. Christensen
Deputy Chief, Division of Indian Health, BMS

Public Health Division
Office of the General Counsel

Public Health Service--Indian health--Charges for care--Collection of charges (PB 3200)

Your memorandum of January 13, 1960, requests our views on whether section 36.13 (a) of the PHS regulations which reads in part-­

"...individual Indians who are clearly able to pay the costs of hospital care (and of other major items of service specified in instructions of the Surgeon General) will be encouraged to do so..."

merely establishes a "policy" regarding payment or imposes a legal requirement for the collection of such payment.  From oral discussion we understand your question to embrace two elements:

1. Must Indians who are able to pay the costs of hospital care be charged?
2. Do such charges constitute debts due the United States subject to collection?

Assuming, for the purposes of this discussion, that the regulations could have validly provided for mandatory charges, it seems clear that no such requirement was established.  Whether a charge is to be imposed in any individual case is specifically made a question for the judgment of the medical officer in charge who is authorized to exercise a wide range of discretion in the matter.  Section 36.13 (c) of the regulations provides:

"(c) Circumstances under which payment may be requested.  Authority of the Medical Officer in Charge.  Whenever it is established to the satisfaction of the Medical Officer in Charge, from information available from the local Bureau of Indian Affairs or from other sources, that an Indian applying for care for himself or his family is able to meet the scheduled charge for the needed care without impairing his prospects for economic independence he may be asked to pay the scheduled charges...(emphasis added.)

The permissive character of the authority granted the medical officer in charge by this language is emphasized by the mandatory direction in S 36.14 of the regulations that nonbeneficiaries found to be able to pay the cost of their care and treatment "shall be charged".  (Emphasis added.)

This understanding of the regulations was reported to the Congress in the survey report "Health Services for American Indians" prepared by the Surgeon General in accordance with the request of the House Committee on Appropriations of the 84th Congress, 1st Session, ^1/ in the following language:

"New regulations on fees provided similar leeway for local adaptation.  In general, individuals who are 'clearly able to pay' for hospital care and specified other items of service 'will be encouraged to do so'.  Like the old Bureau of Indian Affairs rules, however, the new rules do not require the collection of charges."^2/ (Emphasis added.)

Accordingly, you are advised that the regulations do not require the Service to request payment for medical care in all cases where the Indian is able to pay.

The second aspect of your question--whether, when a request for payment has been made, the "charge" so imposed is a debt due the United States subject to recovery by ordinary collection procedures, within the jurisdiction of the General Accounting Office, ^3/ calls for a further consideration of the legal basis for this section of the regulations.

As you will recall, this provision follows the corresponding provision of the BIA regulations on charges to Indians, in effect at the time of transfer of the program to the Service (25 C.F.R. 84.8, 1949 ed.), which provided in part:

"Indians receiving medical, hospital, or dental services shall be expected to pay such fees, based upon the cost of services, as may hereafter be specified by the Commissioner of Indian Affairs..."

This regulation was issued under the authority of a proviso to the Department of the Interior Appropriation Act of 1939 (52 Stat. 291, 312) which read:

"Provided further, that in the discretion of the Secretary of the Interior and under such rules and regulations as may be prescribed by him, fees may be collected from Indians for medical, hospital, and dental service and any fees so collected shall be covered into the Treasury of the United States."

The purpose underlying the enactment of this proviso was stated by Samuel M. Dodd, Finance Officer of the Bureau of Indian Affairs:

"...Our purpose in submitting that item to the Budget was, first , to institute a means of bringing forcibly to the attention of the Indians now that sooner or later they are going to have to pay for some of their services, and get them in the habit of paying a portion of the expense of medical and hospital care where they are able to do so." ^4/

The quoted proviso was repeated in each subsequent Interior Department Appropriation Act through 1946.  It was not repeated in the 1947 Act, or in any subsequent act although the regulation was left unchanged.

In our discussion with Bureau of Indian Affairs representatives prior to the transfer, they were unable to point to any legal authority for the continuation after 1946 of the policy expressed in the quoted regulation and we were unable to find any current express authority to charge fees for services rendered to Indians.^5/  We did indicate, however, in the cited memorandum, that the provisions of 5 U.S.C. 140 (expressing the sense of Congress that Federal services, etc., performed for any person "shall be self-sustaining to the full extent possible") supported the exercise of a fee charging authority by the Surgeon General.  Title 5 U.S.C. 140, however, was not relied on to supply a legal base for the PHS regulation, as is evidenced by the failure to cite it as authority for the section in question.  Its applicability is, moreover, subject to question in the light of the basic responsibility of the Service for the health of Indians.

In considering this question further, we subsequently stated:

"(T)he present charging provisions (S 36.13) . . . were intended not to create a legal indebtedness on the part of the Indian. At the time of the transfer we were unable to find, and Interior was unable to inform us, of any specific authority for charging Indians for this medical care.  The practice of charging had been adopted by Interior apparently as a part of a policy of encouraging Indians to be self-reliant and to pay for what they got when they could, and in the exercise of a general (if somewhat ill-defined) paternalistic authority.  However, this apparently gave rise to a mass of so-called 'debts' which were uncollected and gave rise to many problems of 'settlement' involving GAO.  The Service regulations carry a modified provision for charges designed to avoid some of these difficulties." ^6/  (Emphasis added.)

It is still our view that a request for payment (which is all the regulation contemplates and authorizes) does not create a legal indebtedness on the part of the Indian and does not establish a debt due the United States subject to recovery.

In the light of the foregoing, you may wish to re-examine the administrative procedure for the implementation of S 36.13 to assure their conformance with that section.

Footnotes:

1/ PHSPublication No. 531, transmitted on February 11, 1957 by the Secretary of HEW.

2/ P. 107 ibid.

3/ 31 U.S.C. 71, 93, 194.

4/ Hearings on the Interior Department Appropriation Bill for 1939 before a Subcommittee of the House Committee on Appropriations, 75th Cong., 3d Sess., at 460-l (1938).

5/ See memo GC to Hollinger, "Indian Health Questions relating to eligibility", dated 3/17/55.

6/ Memo GC to RA, San Francisco, "PHS--Indian Health--Collection of charges for care--Area office requests for advice and instruction", dated 8/20/57. Copies of this and related correspondence were forwarded to the Service by memo GC to Dr. Shaw, "PHS--Indian Health--Collection of charges for care", dated 10/18/57.