Pueblo of Acoms sues IHS for closing its hospital, 1.28.21

NM Tribe Sues IHS For Hospital Downsizing Amid Pandemic
By Emma Whitford
Law360 (January 28, 2021, 6:02 PM EST) — A New Mexico tribe has sued the U.S. Department of Health and Human Services and the Indian Health Service, claiming they skipped over key requirements in moving to convert the tribe’s local hospital into an urgent care clinic next month.

The Pueblo of Acoma in western New Mexico filed suit in D.C. federal court Thursday, accusing HHS and IHS of failing to provide proper notice and details to Congress before moving to convert the Acoma-Cañoncito-Laguna Hospital into a clinic with reduced funding and services starting Feb. 1.

Such notice is required under the Indian Health Care Improvement Act, according to the tribe.

“[IHS] intends to cease operating ACL Hospital as a hospital on Feb. 1, 2021, and instead begin operating the facility as an urgent care facility with limited hours and no capacity to provide inpatient or emergency room services,” the tribe wrote in its 16-page complaint.

This is particularly concerning in light of the ongoing coronavirus pandemic, the tribe added, claiming “other hospitals in the area are already at full capacity.”

IHS and HHS also violated a section of the Indian Self-Determination and Education Assistance Act, which allows tribes to enter federal contracts to administer health care and other services, the tribe said.

“The IHS failed to redesign the [ISDEAA] program in consultation with the tribe in a manner that ensured services would continue to be provided,” according to Thursday’s complaint.

ACL Hospital opened in the 1970s, according to court records, and has served the Pueblo of Acoma and neighboring Pueblo of Laguna for decades.

But in February 2020, the Laguna Health Corp. allegedly notified IHS that it wanted to withdraw its funding shares from the hospital and use that money to set up a clinic for their Pueblo about 15 miles away.

In August, IHS allegedly informed the Pueblo of Acoma that the agency planned to enter into a new contract with Laguna, and that services at ACL Hospital would be “dramatically” reduced.

The emergency room subsequently closed temporarily, according to the complaint, after several staffers resigned or retired. The hospital effectively operated as an urgent care clinic until IHS stepped back in to resume more comprehensive care for the month of January.

Meanwhile, the tribe claimed, its EMS department is “stretched to its limit,” spending “an extraordinary amount of time transporting patients to hospitals in Albuquerque, a two-hour round trip.”

This situation already led to one preventable death in November, the tribe claimed, when a man suffered a heart attack and died before EMS could reach him.

The Pueblo of Laguna is also opposed to the plan for ACL Hospital, according to a letter submitted to the court along with Thursday’s complaint. “We… were never informed that health service closures were imminent and were never consulted as an affected tribe,” Laguna Governor John E. Antonio Sr. wrote in a January 28 letter to IHS.

New Mexico Governor Michelle Lujan Grisham weighed in as well in a Jan. 24 letter to President Joe Biden, urging him to intervene and maintain full services at ACL Hospital, which is “vital to providing healthcare access in an underserved area.”

In a document attached as an exhibit to Thursday’s complaint, IHS said temporary closures are allowed within the one-year congressional notice period, if there are safety concerns.

“[T]he IHS may be required to temporarily suspend services … during the one-year notification period if the IHS cannot safely provide the services with the new funding level,” the agency wrote.

Challenging this logic, Thursday’s complaint says “the IHS cannot create a self-inflicted safety issue by withholding funds from the ACL Hospital in order to circumvent its obligation to provide the required evaluation and one-year notice to Congress.”

Thursday’s complaint calls for an order requiring IHS to maintain hospital-level services until it complies with federal law. Accompanying motions seek to immediately bar the government from reducing services at ACL Hospital, citing the risk of “severe and irreparable harm to the tribe.”

In a statement to Law360 Thursday, IHS defended its actions. “The Indian Health Service remains committed to providing comprehensive, quality health care to patients at the Acoma-Canoncito-Laguna Service Unit,” it wrote.

“Notification to Congress is not required for the temporary closure of a facility or of any portion of a facility necessary for medical, environmental, or safety reasons,” IHS continued. “As a result of the significant reduction of resources available to the federal program … the IHS believes that it will be necessary to permanently transform or re-design the IHS [ACL] Service Unit. Any permanent closures will be properly communicated to Congress at the appropriate time.”

But counsel for the tribe pushed back, focusing on the immediate consequences of reduced services.

“Essentially, in the middle of a global pandemic, the IHS is taking a 24-hour facility with an emergency room, inpatient services and a wide range of specialty care — and that serves a vulnerable population — and replacing it with a daytime only urgent care clinic,” Gregory A. Smith of Hobbs Straus Dean & Walker LLP, counsel for the Pueblo of Acoma, said in a statement to Law360 on Thursday.

The agency has received dedicated funding from Congress to address the pandemic, he added, yet “it cannot find funding to keep this hospital open.”

The Pueblo of Acoma are represented by Elliott A. Milhollin, Caroline P. Mayhew and Gregory A. Smith of Hobbs Straus Dean & Walker LLP.

Counsel information for the defendants was not immediately available Thursday.

The case is Pueblo of Acoma v. Department of Health and Human Services et al., case number 1:21-cv-00253, in the U.S. District Court for the District of Columbia.

–Editing by Stephen Berg.

Update: This story has been updated with comment from IHS, the Pueblo of Laguna and New Mexico’s governor.
For a reprint of this article, please contact reprints@law360.com.

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