SIOUX FALLS, S.D. (AP) — A Native American tribe in South Dakota sued the federal government Thursday over the nearly five-month closure of the only emergency room on its reservation.
The federal lawsuit filed Thursday by the Rosebud Sioux Tribe asks that federal officials be forced to re-open the emergency room at the hospital administered by the Indian Health Service. The agency shuttered the ER in early December, two weeks after federal inspectors uncovered serious failures that they said put patients' lives at risk.
The lawsuit, which The Associated Press obtained ahead of it being filed, contends that the Indian Health Service — an arm of the U.S. Department of Health and Human Services — broke the law because an evaluation of the impact of the closure wasn't submitted to Congress at least a year before it was shutdown, as required by the Indian Health Care Improvement Act.
That evaluation must include several factors, including the quality of health care that would remain after such a closure, as well as the views of the tribe affected. It also requires the government to take into account how far tribal members would have to go to get care.
IHS provides free health care to enrolled tribal members as part of the government's treaty obligations to Native American tribes.
The 35-bed Rosebud Hospital had nearly 13,000 emergency room visits during the fiscal year that ended in September.
Since the Dec. 5 closure, patients have had to go to hospitals about 50 miles away in Valentine, Nebraska, and Winner, South Dakota. The lawsuit alleges that in the six weeks following the emergency room's shutdown, five people died and two babies were born in ambulances on the way to the nearest hospitals.
IHS's decision has caused "the Tribe and its members immediate and irreparable injury," according to the lawsuit, which lists as defendants the federal government, the Health and Human Services Department and Secretary Sylvia Burwell, IHS and its top official, Mary Smith, and the director of the IHS's regional office, Rear Adm. Kevin Meeks.
A spokeswoman for the Department of Health and Human Services said Thursday that the agency does not comment on pending litigation.
Former U.S. attorney from North Dakota Timothy Purdon, who left that office a year ago to specialize in American Indian law for Minneapolis-based Robins Kaplan, said his company is taking the case free of charge.
The emergency room came under scrutiny in mid-November during an unannounced visit from inspectors from the Centers for Medicare and Medicaid Services, who concluded that serious deficiencies threatened the lives of patients. Their report noted one patient with a history of untreated tuberculosis who was treated without any apparent infection-control measures being taken. Another patient who was having a heart attack didn't get treatment until 90 minutes after she arrived.
IHS closed the emergency room citing "staffing changes and limited resources," and now intends to privatize it, as well as those at hospitals on the Winnebago Reservation in Nebraska and Pine Ridge Indian Reservation in South Dakota.
The lawsuit comes one day before the deadline for IHS and the Centers for Medicare and Medicaid Services to reach a last-chance agreement to address problems at Rosebud Hospital. Without it, the hospital won't be allowed to bill the government for services provided to Medicare- and Medicaid-eligible patients after May 16.
The Indian Health Service, whose facilities bill Medicare, Medicaid and private insurance for care given to patients who have that coverage, historically has been severely underfunded. The tribe's lawyers are asking the U.S. District Court in Rapid City to require IHS to "take sufficient measures" to ensure health services are provided to tribal members.
The lawyers argue that "there is no rational basis or justification" for the federal government to provide "grossly inadequate health care to members of the Tribe at levels that are substantially below and unequal to health care benefits" given to federal inmates and others for whom it is required to provide health care.
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