Administrative Delegations

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Public Health Service

Date:  AUG 1 1990

Pursuant to the authority delegated to the Director, Indian Health Service (IHS) on February 22, 1985 by the Director, Office of Management, PHS, under Title 45 CFR Part 2, "Testimony by Employees and the Production of Documents in Proceedings Where the United States is Not a Party," and redelegated to the Director of Headquarters Operations on September 21, 1989, I hereby delegate to the Associate Director, Office of Administration and Management, the following authority, to be exercised Agency-wide:

The authority to approve the giving of testimony or production of documents by employees, as part of their official duties, in litigation and other proceedings in which the United States is not a party and has no ciaim, in only those instances where the testimony and/or records are limited to:

1. The provision of medical care (including care or treatment rendered in connection with research studies) by the IHS including the diagnosis, treatment, and prognosis of individual patients; and

2. The Indian Health Service's employment of individuals, including attendance record, salary, performance, and similar matters.

Approval may be granted only where, after consultation with the Office of the General Counsel, it is determined that the testimony will promote the objectives of the IHS based upon the criteria in paragraph 2. of the restrictions below. However, this delegation permits you to adopt written policies, in cosiltation with the appropriate attorneys, to pre-approve testimony in specifically identified routine matters.

REDELEGATION

This authority may be redelegated.

RESTRICTIONS AND LIMITATIONS

1. The Assistant Secretary for Health retains the authority to approve testimony in all other cases, such as expert testimony, under 45 CF.9 Part 2.

2. This delegation permits approval of testimony only if:
   1. it is compelled by a valid subpoena or other compulsory process;

   2. it will result in the minimum disruption of an employee's official duties;

   3. it is based on actual provision of medical care or an examination, or direct knowledge concerning the personnel matter, which is acquired in the course of performing official duties; and.

   4. it would be in the best interests of the Indian Health Service, given the circumstances, to provide the requested testimony and/or documents, based upon the approving official's determination which must include weighing the burden of complying with the subpoena against the burden of resisting the subpoena.

3. Parties shall be encouraged to take testimony in the matter that is least disruptive of an employee's official duties.  Thus, in descenpensing order of preference, the methods of testimony are:  (a) declaration or affidavit (b) deposition, or (c) personal appearance before the court or other body.  Approval to testify may be subject to reasonable conditions as to the time, place, and manner for the taking of the testimony.

4. Subpoenas duces tecum concerned solely with the production of documents or ether records shall be deemed a request for records under the Freedom of Information Act and HHS, PHS, or IHS regulations, as required by 45 CFR Subsection 2.5.  However, where the production of records is commanded as part of a valid subpoena to give substantive testimony which is approved under this delegation, the records may be disclosed pursuant to the terms of the subpoena.

REFERENCES

45 CFR Part 2. "Testimony by Employees in the Production of Documents in Proceedings Where the United States is Not a Party" ,(52 FR 37145, Oct. 5,1987)

SUPERSESSION

This delegation supersedes Exhibit 1-5.2A-12, Subject: Testimony in Private Litigation, Indian Health Manual, Part 1, Chapter 5, Delegations of Authority, Transmittal Notice 89.3, dated June 26, 1989.

EFFECTIVE DATE

This delegation shall be effective upon date of signature.

/Robert Marsland/
Robert Marsland
Assistant Surgeon General