Administrative Delegation #27

September 23, 2013

AUTHORITY DELEGATED

Pursuant to the authority vested in the Director of the Indian Health Service (IHS) by 45 Code of Federal Regulations (C.F.R.) Part 2 (the Touhy Regulations) and the Indian Law Enforcement Reform Act, as amended by the Tribal Law and Order Act of 2010 (TLOA), Pub. L. No. 111-211, codified at 25 United States Code (U.S.C.) § 2801 et seq., I hereby delegate the authority to approve or disapprove the giving of testimony or production of documents by IHS employees, concerning information acquired in the course of performing their official duties, in proceedings in which the IHS, the Department of Health and Human Services (HHS), or any other agency of the United States is not a party.  Approval or disapproval may be granted only after consultation with the HHS Office of the General Counsel (OGC).

Approval of testimony in matters where the United States is not a party may be granted if consistent with HHS and IHS policy to maintain strict impartiality with respect to private litigants and to minimize the disruption of official duties.  When required to do so, the IHS will consider whether providing the testimony would promote the objectives of the Department.

This delegation permits you to adopt written policies, in consultation with OGC, to pre-approve testimony in specified routine matters.

TO WHOM DELEGATED

Deputy Director, IHS
Deputy Director for Field Operations
Deputy Director for Management Operations
Deputy Director for Inter-Governmental Affairs
Chief Medical Officer
Area Directors

AUTHORITY TO REDELEGATE

These authorities may not be redelegated.

RESTRICTIONS AND LIMITATIONS

1. I retain the authority to approve all requests for expert testimony related to an employee's official duties where the United States is not a party.
2. This delegation permits approval of testimony only if the criteria of the Touhy Regulations and/or the TLOA are met, as applicable.  More specifically:  (a) Approval of testimony in the case of state court or Tribal court prosecutions of violent crimes may be granted consistent with the IHS policy to maintain impartiality while cooperating with law enforcement authorities to combat sexual assault, domestic violence, and other crimes of violence.  (b) Approval of testimony in the case of state court or Tribal court prosecutions of domestic violence or sexual assault or similar criminal cases will be deemed granted if a request or subpoena is not acted upon within 30 days after receipt of notice of the request or subpoena.  (c) Approval of testimony in all other criminal proceedings, and in civil proceedings, may be granted when (1) the employee whose testimony is sought has direct, first-hand knowledge of the occurrence(s) about which the testimony is sought (e.g., actual provision of medical care or an examination), (2) allowing the testimony does not violate the policy of the Department to maintain impartial, and (3) allowing the testimony would be in the best interest of the IHS, balancing the requestor's stated need for the testimony and the resultant disruption of the employee's official duties.
3. Parties shall be encouraged to take testimony in the manner that is least disruptive to an employee's official duties.  Thus, in descending order of preference, the methods of testimony are:  (a) declaration or affidavit, (b) deposition, (c) telephone or videoconferencing, or (d) personal appearance before the court or other body.  Approval to testify may be subject to reasonable conditions as to the time, place, scope, and manner for the taking of the testimony.
4. In the case of state court or Tribal court prosecutions of violent crimes, which are covered by the TLOA, this delegation includes the authority to release documents after a determination, in consultation with OGC, that release is consistent with the requirements of the Privacy Act, the HIPAA Privacy Rule, or any other applicable Federal law or regulation.  In all other cases, this delegation permits release of documents consistent with the requirements of the Privacy Act and the HIPAA Privacy Rule when OGC determines that the subpoena or request is legally sufficient, properly served, and from a tribunal of competent jurisdiction.  However, if OGC determines that a subpoena or request for the production of documents does not meet these criteria, the subpoena or requests for documents shall be deemed a request for records under the Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552, and HHS governing regulations at 45 C.F.R. Part 5.  Requests for the release of medical quality assurance records and testimony must comply with the requirements of 25 U.S.C. § 1675(d).  Requests for the release of alcohol and drug abuse patient records must comply with the regulations at 42 CFR Part 2, Subpart E­ Court Orders Authorizing Disclosure and Use [of Alcohol and Drug Abuse Patient Records].
5. In the case of subpoenas or requests for documents or testimony in connection with state court or Tribal court prosecutions of violent crimes which are covered by the TLOA, failure to approve or disapprove the request in writing within 30 days after receipt of the notice of the request or subpoena shall be considered approval of the testimony or release of documents.
6. This Delegation does not apply to:  (a) Any civil or criminal proceedings where the United States, the HHS, or any agency thereof, or any other Federal agency is a party.  (b) Congressional requests or subpoenas for testimony or documents.  (c) Consultative services and technical assistance provided by HHS, or any agency thereof, in carrying out its normal program activities.  (d) Employees serving as expert witnesses in connection with professional and consultative services as approved outside activities in accordance with 5 C.F.R. § 2635.805 and 5 C.F.R. § 5501.106.

SUPERSESSION

This delegation supersedes the previous delegation of authority located in the Indian Health Manual, Administrative Delegation #27, dated August 1, 1990.

Effective Date

This delegation is effective on the date of signature.

Addressees:

Deputy Director, IHS
Deputy Director for Field Operations
Deputy Director for Management Operations
Deputy Director for Inter-Governmental Affairs
Chief Medical Officer
Area Directors