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Shortman v. Roubideaux

United States District Court, D. Arizona

January 20, 2015

Cecilia Shortman, Plaintiff,
v.
Yvette Roubideaux, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Defendants Yvette Roubideaux, Acting Director, United States Indian Health Service ("IHS"); Sylvia Burwell, Secretary, United States Department of Health and Human Services ("HHS"); and United States of America have filed a motion to dismiss pursuant to Federal Rules of Civil Procedure Rule 12(b)(1) and Rule 12(b)(6). Doc. 14. The motion is fully briefed.[1] For the reasons that follow, the Court will deny the motion.[2]

I. Background.

Plaintiff Cecilia Shortman alleges that IHS was negligent in the processing of her application for care, forcing her to choose between death and massive personal debt of $386, 640. Doc. 10 at 4. Shortman is an enrolled member of the Hopi Tribe, a federally recognized Indian tribal government. Id. at 2. Shortman was diagnosed at an early age with a rare life-threatening illness that causes excessive bleeding and results in death if not properly treated. Id. at 5.

Members of federally-recognized Indian tribes, including Shortman, are eligible for direct services care by IHS, which includes treatment from a primary care physician and medications when prescribed by IHS staff. Id. at 6. Throughout most of her life, Shortman received direct care through IHS. Id. Shortman has also received care through "contract health services, " or CHS. Id. CHS care is available for matters that are specialized and cannot be treated within an IHS direct services program. Id.

Shortman was able to acquire her needed medications through an insurance program offered by her employer, Hopi Grant Schools, but coverage for the medications ended on July 1, 2012. Id. at 7-8. Shortman applied for coverage through IHS beginning on that date, and IHS informed her that her care and medications would need to be coordinated through CHS. Id. CHS contained additional eligibility restrictions: eligible Indians must exhaust all other "alternative resources, " the patient must be an eligible Indian residing within a specified "contract health service delivery area, " and care must be within one of the medical "priorities." Id. As of July 1, 2012, Shortman had no other alternate resources to cover the medications she needed. Id. Shortman also claims that she lived within the delivery area for CHS coverage and that the care and medications at issue were included within CHS priorities. Id.

Shortman provided notice to the Hopi Health Care Clinic ("HHCC"), a program operated by IHS, that she would have no alternative resources and would need coverage through IHS beginning July 1, 2012. Id. at 9. Shortman alleges that HHCC had all the information needed to approve coverage for Shortman's medications beginning July 1, 2012. Id. Shortman did not receive her medication by July. Id. at 9-10. She began cutting her dosages back in order to spread her medicine further. Id. Staff from the Tribal school, the Tribal School Plan, the trustees, and Walgreens Infusion Services, Inc., grew concerned for Shortman's life and agreed to advance the cost of the July medicine until IHS could complete its eligibility process. Id.

In August 2012, Shortman still had not heard from IHS. Walgreens and the Trustees again agreed to cover the cost of Shortman's medications while IHS completed its eligibility evaluation. Id. By the end of September, Shortman still had not heard from IHS; Walgreens and the Trustees were growing concerned with continuing to fund her medications. Id. at 10-11. On September 27, 2012, Shortman turned to the White House for help. Id. Representatives from the White House contacted IHS concerning Shortman's application for medication. Id. That day, IHS completed the eligibility review process and determined that Shortman was eligible for her medication. Id. By that point, Walgreens, unaware of the decision at IHS, had advanced a month's supply of medicine for delivery at the Hopi clinic. Id.

Shortman alleges that throughout this time period she was never provided a written explanation of the eligibility determination, an explanation of the scope of the approval, an explanation of her appeal rights, or an explanation of the delay in approving her medicine. Id. at 11-12.

On July 25, 2013, Shortman filed a Form 95 seeking to resolve her claims through the administrative claim process afforded under the Federal Tort Claims Act ("FTCA"). Id. at 14. HHS acknowledged receipt of Shortman's administrative claim on August 2, 2013, and requested certain documentation. In a letter dated August 8, 2013, Shortman responded to HHS's request for additional information and amended her Form 95. Id. This letter also requested certain documents and information relating to Shortman's request for coverage. Id. HHS confirmed receipt of Shortman's materials on August 9, 2013, and noted that they were sufficient to satisfy the HHS request at the time. Id. HHS has failed to accept or reject Shortman's administrative claims as set forth in Form 95. Id. Shortman seeks to recover more than $386, 000 for which she allegedly became liable as a result of Defendants' misinformation and delay. Id. at 36.

II. Standard of Review.

Defendants' motion is filed under Rule 12(b)(1) and argues that the Court lacks subject matter jurisdiction under the FTCA. "With a 12(b)(1) motion, a court may weigh the evidence to determine whether it has jurisdiction." Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005). But where the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment. Id.

The parties each have attached factual declarations to their memoranda. Docs. 14-1, 17-1, 24-1. These declarations reveal factual disputes as to the actions Plaintiff and Defendants took before July 1, 2012, whether and when Plaintiff missed appointments, what letters were or were not sent and received, and similar issues. These factual disputes apply not only to the jurisdictional issues raised by Defendants, but also to the merits. Defendants contend, for example, that Plaintiff is not entitled to coverage for her medication costs under the applicable regulations because she missed appointments and otherwise failed to procure advance approval.

The Court cannot resolve these factual disputes on the present limited record. Consistent with the direction in Autery, the Court will apply a summary judgment standard to this motion. The Court will review factual issues in the light most favorable to ...


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