Notice To Propose the Redesignation of the Service Delivery Area for the Wampanoag Tribe of Gay Head (Aquinnah)

AGENCY:

Indian Health Service, HHS.

ACTION:

Notice.

SUMMARY:

This notice advises the public that the Indian Health Service (IHS) proposes to expand the geographic boundaries of the Service Delivery Area for the Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts. The Aquinnah service delivery area is currently comprised of members of the Tribe residing in Martha's Vineyard, Dukes County in the State of Massachusetts.

The Bureau of Indian Affairs (BIA) recognized the Wampanoag Tribe of Gay Head on February 10, 1987. Martha's Vineyard, Dukes County was designated as the Aquinnah service delivery area in the Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987, Public Law 100-95.

DATES:

Comments must be submitted September 23, 2015.

ADDRESSES:

Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission. You may submit comments in one of four ways (please choose only one of the ways listed):

1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a Comment” instructions.

2. By regular mail. You may mail written comments to the following address ONLY: Betty Gould, Regulations Officer, Indian Health Service, 801 Thompson Avenue, TMP STE 450, Rockville, Maryland 20852.

Please allow sufficient time for mailed comments to be received before the close of the comment period.

3. By express or overnight mail. You may send written comments to the above address.

4. By hand or courier. If you prefer, you may deliver (by hand or courier) your written comments before the close of the comment period to the address above. If you intend to deliver your comments to the Rockville address, please call telephone number (301) 443-1116 in advance to schedule your arrival with a staff member.

Comments will be made available for public inspection at the Rockville address from 8:30 a.m. to 5:00 p.m., Monday-Friday, two weeks after publication of this notice.

FOR FURTHER INFORMATION CONTACT:

Carl Harper, Director, Office of Resource Access and Partnerships, Indian Health Service, 801 Thompson Avenue, Suite 360, Rockville, Maryland 20852. Telephone 301/443-2694 (This is not a toll free number).

SUPPLEMENTARY INFORMATION:

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment.

Background: The IHS currently provides services under regulations codified at 42 CFR part 136, subparts A through C. Subpart C defines a Contract Health Service Delivery Area (CHSDA), now known as a Purchased/Referred Care (PRC) Service Delivery Area, as the geographic area within which PRC will be made available by the IHS to members of an identified Indian community who reside in the area. Residence in a PRC service delivery area by a person who is within the scope of the Indian health program, as set forth in 42 CFR 136.12, creates no legal entitlement to PRC but only potential eligibility for services. Services needed but not available at an IHS/Tribal facility are provided under the PRC program depending on the availability of funds, the person's relative medical priority, and the actual availability and accessibility of alternate resources in accordance with the regulations.

As applicable to the Tribes, these regulations provide that, unless otherwise designated, a PRC service delivery area shall consist of a county which includes all or part of a reservation and any county or counties which have a common boundary with the reservation. (42 CFR 136.22(a)(6) (2014)). The regulations also provide that after consultation with the Tribal governing body or bodies on those reservations included within the PRC service delivery area, the Secretary may from time to time, redesignate areas within the United States for inclusion in or exclusion from a PRC service delivery area. The regulations require that certain criteria must be considered before any redesignation is made. The criteria are as follows:

(1) The number of Indians residing in the area proposed to be so included or excluded;

(2) Whether the Tribal governing body has determined that Indians residing in the area near the reservation are socially and economically affiliated with the Tribes;

(3) The geographic proximity to the reservation of the area whose inclusion or exclusion is being considered; and

(4) The level of funding which would be available for the provision of PRC.

Additionally, the regulations require that any redesignation of a PRC service delivery area must be made in accordance with the Administrative Procedures Act (5 U.S.C. 553). In compliance with this requirement, we are publishing this proposal and requesting public comments.

The Tribe's PRC Service Delivery Area is currently defined, both administratively and statutorily, as consisting only of Martha's Vineyard, Dukes County. The Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987 provides, among other items, that “[f]or the purpose of eligibility for Federal services made available to members of federally recognized Indian tribes, because of their status as Indians, members of this tribe residing on Martha's Vineyard, Massachusetts, shall be deemed to be living on or near an Indian reservation.” 25 U.S.C. .l771i; see also 75 FR 20608 (Apr. 20, 2010). Because the statute defines which members of the Tribe live “on or near [the] reservation” for purposes of all Federal services for which that consideration is relevant, this eligibility definition applies to PRC. IHS adopted the Congressionally-defined service delivery area for the purposes of administering benefits under the IHS PRC program via an IHS Director Decision memo on October 14, 1987. Thus, members of the Tribe who reside outside of Martha's Vineyard, Dukes County do not reside within the Aquinnah's PRC service delivery area and are currently not eligible for PRC from the Aquinnah.

Historically, IHS has established and maintained service delivery areas in accordance with Congressional intent, as evidenced by geographically designated areas identified in recognition or settlement acts, such as Public Law 100-95. Indeed, IHS has said that with respect to the Aquinnah Tribe, the Secretary's discretion to redesignate the Tribe's PRC service delivery area is superseded by the geographic limitation in the Tribe's Settlement Act of 1987, and accordingly, in a December 2, 2011 letter to the Tribe, IHS declined Aquinnah's proposal to serve non-resident members residing outside of Dukes County, Massachusetts, through its PRC program. At the insistence of the Tribe, IHS has reevaluated the Agency's position.

While IHS does not intend to abandon its historic practice, IHS has reviewed the Aquinnah's request and believes that unique circumstances are present that warrant expanding the Aquinnah PRC service delivery area beyond the limits identified by Congress in Public Law 100-95. These unique circumstances include the factors identified by the BIA in recognizing the Aquinnah prior to the enactment of Public Law 100-95, IHS's prior decision to provide sanitation services to Aquinnah members residing on the mainland outside of the existing PRC service delivery area, Dukes County's status as an island and the significant number of Tribal members that reside permanently off of the island but continue to maintain close economic and social ties with the Aquinnah. The BIA recognized the Aquinnah Tribe as an Indian Tribe eligible for Federal benefits on February 10, 1987, pursuant to a notice published in the Federal Register. See 52 FR 4193. As part of its findings, BIA concluded “that the [Aquinnah] have an extensive and interrelated communication network connecting those Wampanoag members in Gay Head and elsewhere on Martha's Vineyard with each other and with those members living off-island.” The BIA further concluded that the Tribal government “maintained political influence and/or authority over both its resident and non-resident members.”

In 1997, IHS authorized sanitation services to non-resident members of the Aquinnah Tribe residing in the counties of Barnstable, Bristol, Norfolk, Plymouth and Dukes Counties in the State of Massachusetts, specifically finding that the service area for sanitation facilities construction was not limited to the Tribal health program service area (Dukes County).

Finally, Aquinnah has a significant number of members who are not residents of Dukes County. According to Tribal estimates, 268 enrolled Aquinnah members are non-residents who remain actively involved with the Tribe, reside in Barnstable, Bristol, Norfolk, Plymouth and Suffolk Counties and are not currently eligible for PRC care. Aquinnah provides limited direct services to its Tribal members by operating a small clinic in Dukes County that is open once or twice a month. To access direct care services, non-residents must travel over one and a half hours via ferry and car to receive the health care offered at the clinic. As a consequence, most non-residents do not seek care on the island.

Accordingly, the purpose of this Federal Register notice is to notify the public of the proposal to expand the Aquinnah service delivery area to include Barnstable, Bristol, Norfolk, Plymouth and Suffolk Counties in the State of Massachusetts. The proposed notice will expand their current service delivery area which incorporates Martha's Vineyard, Dukes County in the State of Massachusetts to include Barnstable, Bristol, Norfolk, Plymouth and Suffolk Counties in the State of Massachusetts.

Under 42 CFR 136.23 those otherwise eligible Indians who do not reside on a reservation but reside within a PRC service delivery area must be either members of the Tribe or maintain close economic and social ties with the Tribe. In this case, in applying the aforementioned PRC service delivery area redesignation criteria required by operative regulations (43 FR 34654), the following findings are made:

1. By expanding, the Tribe estimates the current eligible population will be increased by 268.

2. The Tribe has determined that these 268 individuals are socially and economically affiliated with the Tribe.

3. The expanded area including Barnstable, Bristol, Norfolk, Plymouth, and Suffolk Counties in the State of Massachusetts are across the Bay from Martha's Vineyard, Dukes County, Massachusetts.

4. Generally, the Tribal members located in these counties currently do not use the Indian health system for their health care needs. The Tribe will use its existing Federal allocation for PRC funds to provide services to the expanded population. No additional financial resources will be allocated by IHS to the Tribe to provide services to Tribal members residing in these counties nor should this expansion be construed to have any present or future effect on the allocation of resources between Mashpee Wampanoag Tribe and Aquinnah.