Blatchford v. Alaska Native Tribal Health Consortium

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ADRIENNE BLATCHFORD, 
Plaintiff-Appellant,
No. 10-35785
v.
THE ALASKA NATIVE TRIBAL  D.C. No.
3:08-cv-00247-TMB
HEALTH CONSORTIUM, dba Alaska
OPINION
Native Medical Center,
Defendant-Appellee.


Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding

Argued and Submitted
May 5, 2011—Anchorage, Alaska

Filed May 19, 2011

Before: Arthur L. Alarcón, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Graber

6631
 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH 6633

COUNSEL

Jeffrey J. Barber, Barber & Sims, LLC, Anchorage, Alaska,
for the plaintiff-appellant.

Richard D. Monkman, Sonosky, Chambers, Sachse, Miller &
Munson LLP, Juneau, Alaska, for the defendant-appellee.
6634 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH
OPINION

GRABER, Circuit Judge:

Plaintiff Adrienne Blatchford suffered serious injuries in a
car accident. She received extensive health care services from
Defendant Alaska Native Tribal Health Consortium (“the
Consortium”). Pursuant to the Indian Health Care Improve-
ment Act, Pub. L. No. 94-437, 90 Stat. 1400 (1976), the Con-
sortium did not charge Plaintiff for those services because she
is a Native American. But the Consortium filed a lien under
Alaska law, Alaska Statutes §§ 34.35.450-.482, against any
money that Plaintiff receives from third parties, related to the
injuries for which it treated her. The Consortium also filed a
“Notice of Federal Health Services Lien,” citing 25 U.S.C.
§ 1621e.

Plaintiff received a substantial settlement from her insurer,
and her lawyer disbursed all the settlement funds except for
the amount subject to the Consortium’s liens. Thereafter
Plaintiff filed an action in Alaska state court, seeking a declar-
atory judgment to the effect that the Consortium’s liens are
not valid, in whole or in part. The Consortium removed the
action to federal court and filed a counterclaim asserting that,
under 25 U.S.C. § 1621e, Plaintiff must remit the remaining
funds to it. The district court granted summary judgment to
the Consortium because it “has a right to recover the money
spent on Plaintiff’s medical care under 25 U.S.C. § 1621e.”
On de novo review,1 we reverse because 25 U.S.C. § 1621e
does not apply here.

In enacting the Indian Health Care Improvement Act, Con-
gress found that “[f]ederal health services to maintain and
improve the health of the Indians are consonant with and
1
We review de novo both the district court’s grant of summary judg-
ment and its statutory interpretation. Phoenix Mem’l Hosp. v. Sebelius,
622 F.3d 1219, 1224 (9th Cir. 2010).
 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH 6635
required by the Federal Government’s historical and unique
legal relationship with, and resulting responsibility to, the
American Indian people.” 25 U.S.C. § 1601(1). “Congress
declares that it is the policy of this Nation, in fulfillment of
its special trust responsibilities and legal obligations to Indi-
ans . . . to ensure the highest possible health status for Indians
and urban Indians and to provide all resources necessary to
effect that policy . . . .” Id. § 1602(1). Accordingly, Native
Americans need not pay for health care services that they
receive from eligible providers but, pursuant to 25 U.S.C.
§ 1621e, those providers can recover certain of their costs
from third parties.

We pause to note that, as part of the recent health care
overhaul, Congress amended § 1621e in 2010. All the rele-
vant events—the car accident, the receipt of health care ser-
vices, the Consortium’s filing of its liens, Plaintiff’s insurance
settlement, and the filing of this litigation—occurred before
the 2010 amendments took effect. But it is possible that Con-
gress intended the 2010 amendments to have retroactive
effect. See, e.g., Yukon-Kuskokwim Health Corp. v. Trust Ins.
Plan for Sw. Alaska, 884 F. Supp. 1360, 1364-68 (D. Alaska
1994) (performing an extensive analysis of the 1992 amend-
ments to the statute and concluding that they had retroactive
effect). We need not decide, however, whether the present-
day version of the statute or the pre-amendment version of the
statute applies. In the discussion below, we apply the pre-
amendment version of the statute, but we emphasize that the
result we reach here would be the same even if Congress
intended the 2010 amendments to have retroactive effect.
Although the new version of § 1621e, which appears in an
appendix, is longer and more explicit, it changed neither the
intended scope of the section nor its relationship to state lien
laws.

Section 1621e (2009) provided, in full:

§ 1621e. Reimbursement from certain third parties
of costs of health services.
6636 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH
(a) Right of recovery

Except as provided in subsection (f) of this sec-
tion, the United States, an Indian tribe, or a tribal
organization shall have the right to recover the rea-
sonable expenses incurred by the Secretary, an
Indian tribe, or a tribal organization in providing
health services, through the Service, an Indian tribe,
or a tribal organization, to any individual to the same
extent that such individual, or any nongovernmental
provider of such services, would be eligible to
receive reimbursement or indemnification for such
expenses if—(1) such services had been provided by
a nongovernmental provider, and (2) such individual
had been required to pay such expenses and did pay
such expenses.

(b) Recovery against State with workers’ compen-
sation laws or no-fault automobile accident
insurance program

Subsection (a) of this section shall provide a right
of recovery against any State only if the injury, ill-
ness, or disability for which health services were
provided is covered under—(1) workers’ compensa-
tion laws, or (2) a no-fault automobile accident
insurance plan or program.

(c) Prohibition of State law or contract provision
impeding right of recovery

No law of any State, or of any political subdivi-
sion of a State, and no provision of any contract
entered into or renewed after November 23, 1988,
shall prevent or hinder the right of recovery of the
United States, an Indian tribe, or a tribal organization
under subsection (a) of this section.
 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH 6637
(d) Right to damages

No action taken by the United States, an Indian
tribe, or a tribal organization to enforce the right of
recovery provided under subsection (a) of this sec-
tion shall affect the right of any person to any dam-
ages (other than damages for the cost of health
services provided by the Secretary through the Ser-
vice).

(e) Intervention or separate civil action

The United States, an Indian tribe, or a tribal orga-
nization may enforce the right of recovery provided
under subsection (a) of this section by—

(1) intervening or joining in any civil action or
proceeding brought—

(A) by the individual for whom health services
were provided by the Secretary, an Indian tribe, or a
tribal organization, or

(B) by any representative or heirs of such individ-
ual, or

(2) instituting a separate civil action, after provid-
ing to such individual, or to the representative or
heirs of such individual, notice of the intention of the
United States, an Indian tribe, or a tribal organization
to institute a separate civil action.

(f) Right of recovery for services when self-
insurance plan provides coverage

The United States shall not have a right of recov-
ery under this section if the injury, illness, or disabil-
ity for which health services were provided is
6638 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH
covered under a self-insurance plan funded by an
Indian tribe or tribal organization.

[1] That statute provides a right of recovery only against
third parties. Two elements of the text make this limitation
clear. First, the title of § 1621e (2009) (which remains identi-
cal after the 2010 amendments) states: “Reimbursement from
certain third parties of costs of health services.” Id. (emphasis
added). As the Supreme Court has held, “the title of a statute
and the heading of a section are tools available for the resolu-
tion of a doubt about the meaning of a statute.” Almendarez-
Torres v. United States, 523 U.S. 224, 234 (1998) (internal
quotation marks omitted). Second, subsection (a), which
defines the scope of the right of recovery, allows the provider
to recover “to the same extent that [the Native American]
individual . . . would be eligible to receive reimbursement or
indemnification for such expenses.” 25 U.S.C. § 1621e(a)
(emphasis added). That wording presupposes that the provider
stands in the shoes of the individual who, naturally enough,
would not be receiving reimbursement or indemnification
from herself.2

[2] In addition to limiting the reach of an eligible provid-
er’s right to the provider’s relationship to third parties only,
and not to the Native American who received services, the
statute limits the ways in which the provider may enforce its
right against third parties. The provider may enforce that right
in one of only two ways. Congress specified that the provider
either may join a civil action filed by the individual (or his or
her heirs) against a third party or, if the individual does not
2
The amended version of § 1621e(a) is even more explicit because it
lists the third parties against which the health care provider may recover:
A “tribal organization shall have the right to recover from an insurance
company, health maintenance organization, employee benefit plan, third-
party tortfeasor, or any other responsible or liable third party.” Naturally,
the list does not include the individual who received services.
 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH 6639
file such an action, may file its own action against a third
party. 25 U.S.C. § 1621e(e).3

The ordinary workings of this statute are uncomplicated.
Because a Native American need not pay for health care ser-
vices from eligible providers, she may have a diminished
incentive (if any incentive at all) to seek remuneration from
third parties for the provider’s cost to deliver care. To address
that situation, the statute allows the provider to recover its
expenses against third-party tortfeasors, relevant insurers, or
other third parties by joining in the individual’s litigation
against those third parties, to protect its interest, or by filing
its own action.

[3] Here, however, the health care provider seeks to
enforce a right of recovery against the individual to whom it
provided services, at least with respect to the settlement
funds. That procedure simply does not fit within the statute,
in which the right of recovery that Congress granted runs only
against third parties. Our conclusion is reinforced by the fact
that the enforcement mechanisms enumerated by Congress do
not include an action against the individual served, with
respect to settlement funds received from a third party or oth-
erwise. In short, § 1621e(a) and (e) do not apply. We reject
the Consortium’s attempt to read § 1621e as a federal lien
law; to do so, we would have to add a concept (a right of
enforcement against proceeds received from third parties) that
Congress omitted. See, e.g., Cavanaugh v. U.S. Dist. Court
(In re Cavanaugh), 306 F.3d 726, 738 (9th Cir. 2002) (“[W]e
may not add to the statute terms that Congress omitted
. . . .”).
3
The pre-amendment version of the statute entitled this subsection “In-
tervention or separate civil action,” while the amended statute uses the title
“Enforcement.” The text of the two versions is otherwise the same. Both
versions suggest that the listed methods of enforcement are the exclusive
means of enforcing the right established in subsection (a).
6640 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH
[4] We note that a health care provider like the Consortium
is not necessarily left empty-handed. First, the provider can,
under the federal statute, file an action against relevant third
parties. Second, as the Consortium has done here, the provider
can take advantage of medical lien laws, such as Alaska Stat-
utes § 34.35.450(a).4 The Alaska Supreme Court has held that
medical liens involving Alaska Natives are enforceable (with
certain limitations). See Alaska Native Tribal Health Consor-
tium v. Settlement Funds Held for or to be Paid on Behalf of
E.R., 84 P.3d 418 (Alaska 2004). In short, nothing in § 1621e
precludes a provider from taking advantage of an otherwise
applicable medical lien law.5

[5] In conclusion, because 25 U.S.C. § 1621e does not
apply to the action between Plaintiff and the Consortium, we
reverse the grant of summary judgment in favor of the Con-
sortium on its counterclaim. We remand the case for such fur-
ther proceedings as may be appropriate on Plaintiff’s claim.

REVERSED AND REMANDED.
4
That section provides:
An operator of a hospital in the state, a licensed special nurse
in a hospital in the state, or a physician who furnishes service to
a person who has a traumatic injury has a lien upon any sum
awarded to the injured person or the personal representative of
the injured person by judgment or obtained by a settlement or
compromise to the extent of the amount due the hospital, nurse,
or physician for the reasonable value of the service furnished
before the date of judgment, settlement, or compromise, together
with costs and reasonable attorney fees that the court allows,
incurred in the enforcement of the lien. AS 34.35.450-34.35.480
do not apply to a claim, right of action, or money accruing under
AS 23.30 (Workers’ Compensation Act).
5
After the 2010 amendments, the statute makes explicit that it does not
limit any right of recovery arising under other applicable laws, “including
medical lien laws.” 25 U.S.C. § 1621e(k) (2010). That wording strength-
ens our conclusion that § 1621e is not, itself, a medical lien law.
 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH 6641
Appendix

§ 1621e. Reimbursement from certain third parties of costs
of health services.

(a) Right of recovery

Except as provided in subsection (f), the United States, an
Indian tribe, or tribal organization shall have the right to
recover from an insurance company, health maintenance orga-
nization, employee benefit plan, third-party tortfeasor, or any
other responsible or liable third party (including a political
subdivision or local governmental entity of a State) the rea-
sonable charges billed by the Secretary, an Indian tribe, or
tribal organization in providing health services through the
Service, an Indian tribe, or tribal organization, or, if higher,
the highest amount the third party would pay for care and ser-
vices furnished by providers other than governmental entities,
to any individual to the same extent that such individual, or
any nongovernmental provider of such services, would be eli-
gible to receive damages, reimbursement, or indemnification
for such charges or expenses if—(1) such services had been
provided by a nongovernmental provider; and (2) such indi-
vidual had been required to pay such charges or expenses and
did pay such charges or expenses.

(b) Limitations on recoveries from States

Subsection (a) shall provide a right of recovery against any
State, only if the injury, illness, or disability for which health
services were provided is covered under—(1) workers’ com-
pensation laws; or (2) a no-fault automobile accident insur-
ance plan or program.

(c) Nonapplicability of other laws

No law of any State, or of any political subdivision of a
State and no provision of any contract, insurance or health
6642 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH
maintenance organization policy, employee benefit plan, self-
insurance plan, managed care plan, or other health care plan
or program entered into or renewed after November 23, 1988,
shall prevent or hinder the right of recovery of the United
States, an Indian tribe, or tribal organization under subsection
(a).

(d) No effect on private rights of action

No action taken by the United States, an Indian tribe, or
tribal organization to enforce the right of recovery provided
under this section shall operate to deny to the injured person
the recovery for that portion of the person’s damage not cov-
ered hereunder.

(e) Enforcement

(1) In general

The United States, an Indian tribe, or tribal organi-
zation may enforce the right of recovery provided
under subsection (a) by—

(A) intervening or joining in any civil action or pro-
ceeding brought—

(i) by the individual for whom health services
were provided by the Secretary, an Indian tribe, or
tribal organization; or

(ii) by any representative or heirs of such individ-
ual, or

(B) instituting a separate civil action, including a
civil action for injunctive relief and other relief and
including, with respect to a political subdivision or
local governmental entity of a State, such an action
against an official thereof.
 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH 6643
(2) Notice

All reasonable efforts shall be made to provide
notice of action instituted under paragraph (1)(B) to
the individual to whom health services were pro-
vided, either before or during the pendency of such
action.

(3) Recovery from tortfeasors

(A) In general

In any case in which an Indian tribe or tribal orga-
nization that is authorized or required under a com-
pact or contract issued pursuant to the Indian Self-
Determination and Education Assistance Act (25
U.S.C. 450 et seq.) to furnish or pay for health ser-
vices to a person who is injured or suffers a disease
on or after the date of enactment of the Indian Health
Care Improvement Reauthorization and Extension
Act of 2009 under circumstances that establish
grounds for a claim of liability against the tortfeasor
with respect to the injury or disease, the Indian tribe
or tribal organization shall have a right to recover
from the tortfeasor (or an insurer of the tortfeasor)
the reasonable value of the health services so fur-
nished, paid for, or to be paid for, in accordance with
the Federal Medical Care Recovery Act (42 U.S.C.
2651 et seq.), to the same extent and under the same
circumstances as the United States may recover
under that Act.

(B) Treatment

The right of an Indian tribe or tribal organization
to recover under subparagraph (A) shall be indepen-
dent of the rights of the injured or diseased person
served by the Indian tribe or tribal organization.
6644 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH
(f) Limitation

Absent specific written authorization by the governing
body of an Indian tribe for the period of such authorization
(which may not be for a period of more than 1 year and which
may be revoked at any time upon written notice by the gov-
erning body to the Service), the United States shall not have
a right of recovery under this section if the injury, illness, or
disability for which health services were provided is covered
under a self-insurance plan funded by an Indian tribe, tribal
organization, or urban Indian organization. Where such autho-
rization is provided, the Service may receive and expend such
amounts for the provision of additional health services consis-
tent with such authorization.

(g) Costs and attorney’s fees

In any action brought to enforce the provisions of this sec-
tion, a prevailing plaintiff shall be awarded its reasonable
attorney’s fees and costs of litigation.

(h) Nonapplicability of claims filing requirements

An insurance company, health maintenance organization,
self-insurance plan, managed care plan, or other health care
plan or program (under the Social Security Act or otherwise)
may not deny a claim for benefits submitted by the Service or
by an Indian tribe or tribal organization based on the format
in which the claim is submitted if such format complies with
the format required for submission of claims under title XVIII
of the Social Security Act or recognized under section 1175
of such Act.

(i) Application to urban indian organizations

The previous provisions of this section shall apply to urban
Indian organizations with respect to populations served by
such Organizations in the same manner they apply to Indian
 BLATCHFORD v. ALASKA NATIVE TRIBAL HEALTH 6645
tribes and tribal organizations with respect to populations
served by such Indian tribes and tribal organizations.

(j) Statute of limitations

The provisions of section 2415 of Title 28, shall apply to
all actions commenced under this section, and the references
therein to the United States are deemed to include Indian
tribes, tribal organizations, and urban Indian organizations.

(k) Savings

Nothing in this section shall be construed to limit any right
of recovery available to the United States, an Indian tribe, or
tribal organization under the provisions of any applicable,
Federal, State, or tribal law, including medical lien laws.