Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:02-cv-01383-MMS

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INDIAN HEALTH CARE
P.L. 96-537

INDIAN HEALTH CARE AMENDMENTS OF 1980
P.L. 96-557, see page 94 Stat. !I75

Senate Report (Indian Affairs Committee) No. 96-758, May 15, 1980 [To accompany S. 27281 House Report (Interior and Insular Affairs Committee) No. 96-975, May 15, 1980 [To accompany H.R. 66291 House Conference Report No. 96-1483, Dec. I, 1980 [To accompany S . 27281

Cnng. R~cnrri Vnl. 126 (1980)
DATES OF CONSIDERATION ANQ PASSAGE Senate June 2, Decemlkr 3, 1980
2, House September 9, ~ e c i m b e r 1980

The Sedate bill was passed in lieu of the House bill. The Senate Report (this page) and the House Conference Report (page 6671) are set out.

SENATE REPORT NO. 96-758
[page 11

The Select Committee on Indian Affairs which has had under consideration a n original bill to amend the Indian Health Care Improvement Act and the Public Health Service Act with respect to Indian health care, and for other purposes, reports favorably thereon and recommends that the bill do pass.
BACKGROUND NEED AND

Early in the history of the United States, the only Federal health services available to Indians were those provided by military doctors assigned to frontier forts and reservations. At times, health services were provided to fulfill treaty provisions, but the primary concern of these physicians was the prevention of the spread of smallpox and other contagious diseases which were virtually unknown to Indians prior to contact with the white man. Indian health policy shifted from military to civilian administration with the transfer of the Indian Service from the War Department to the Department of the Interior in 1849. Some;limited progress was made during the remaining years of the 19th century, but by 1900 there were ony 83 physicians to serve the Indian population. In 1911, $40,000 was appropriated and earmarked specifically for health services for Indians. Prior to this time, Indian health services were financed out of miscellaneous funds, appropriated to the

EXHIBIT 38
In Support of Plaintiffs Opposition to Motion to Dismiss on TPA & IHS Samish v. U.S., No. 02-1 383L

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LEGISLATIVE HISTORY
P.L. 96-537 [page 21

Bureau of Indian Affairs. The Snyder Act (Act of November 2, 1921, 42 Stat. 208) provided the specific legislative authorization for Federal health care for Indians. The Snyder Act authorizes the Secretary of the Interior, among other things, to expend funds for the "relief of distress and conservation of the health of Indians." This phrase continues to be the basic authority for the Federal Government's provision of health services to Indians. In the mid-1920's commissioned officers of the Public Health Sewice were assigned to Indian health care services. However, outdated facilities, severe understaffing and inadequate appropriations in subsequent years led to a severely deteriorated level of health services and poor Indian health by the mid-1940's. Pressure began to mount for a transfer of the Indian health program from the BIA to the Public Health Service of the Department of Health, Education, and Welfare. Several studies were done of the BIA health pronf gram. including a 1948 R~ireeu the Rudget study, the 1949 repori; of the Hoover Commission, and a 1949 study by the American Medical Association, all of which found the need for a new a p proach to Indian health problems. In 1954, Congress enacted the Transfer Act (71 Stat. 370) which resulted in the 1955 transfer of the Federal responsibility for health services for Indians from the Bureau of Indian Affairs in the Department of the Interior to the newly created Division of Indian Health under the U.S. Surgeon General in the Public Health Service of the Department of Health, Education, and Welfare. In 1955, the Division of Indian Health was retitled the Indian Health Service (IHS). Health service programs have undergone several administrative reorganizations, and the Indian Health Service is now a division of the Public Health Service in the Health Services Administration of HEW. IHS has grown rapidly since 1955. From a budget of $24.5 million and a staff of 3,574 in 1955, it now has approximately 10,000 employees and a budget of approximately $600 million. There are three administrative levels within the Indian Health Service: Headquarters, Area Offices, and Service Units, Headquarters is located in Rockville, Maryland. Area Offices correspond in function to HEW Regional Offices but most nearly correspond in location to the BIA Area Offices, out of which they emerged in 1955. Service Units are the primary health delivery units and are located on Indian reservations, in cities in which IHS has regional medical centers, and in non-reservation areas in Oklahoma and Alaska where concentrations of Indians who are part of the IHS service population reside. Despite progress in the control of certain diseases since 1955, new construction and increased assignment of health care personnel since the transfer. the passage of Public Law 86-121 enabling construction of sanitation facilities for Indians and the subsequent provision of running water and solid waste disposal systems for Indians, and a significant trend in increased acceptance by Indians and Alaska Natives of health care services, by 1974, the Congress began to take another careful look a t the health care services provided to American Indians. In spite of all the progress that had been made, it was found that the vast majority of Indians still were living in a n environment characterized by inadequate and understaffed health facilities, improper o r nonexistent waste disposal and

6646

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INDIAN HEALTH CARE
P.L. 96-537 [page 31

water supply systems, and continuing dangers of deadly or disabling diseases. The health status of Indians was still far below that of the general population and Indian communities and Native villages were plagued with concerns other American communities had forgotten 25 years previously. The 93d Congress was unable to pass major Indian health legislation, although the Senate did pass a bill. The 19th Congress passed the Indian Health Care Improvement Act, the most comprehensive Indian health legislation since the IHS transfer legislation of the 1950's. The purpose of the Indian Health Care Improvement Act, Public Law 94-437, is to implement the Federal responsibility for the care and education of the Indian people by improving the services and facilities of Federal Indian programs and encouraging maximum participation of Indians in such programs, and for other purposes. ----- alg'rcu :-AcO.-,tPmhPr I ne fA i c ~ was -:---2 Ubyub...---20 1976--, Title I of the Act authorizes a variety of recruitment activities (section J02) to identify and encourage Indian students to pursue a career in the health professions. Students with educational deficiencies may qualify for a Health Professions Preparatory Scholarship (section 103). upon completion of which they are eligible for enrollment in a health professions school. Upon enrollment, they may qualify for a Health Professions Scholarship (section 104) to assist with their health professions education. During nonacademic periods, students may qualify for assignments as a n Extern (section 105) to secure practical experience in their health discipline. Upon graduation and entry into the IHS, they may be provided continuing education experiences (section 106) each year to maintain and improve the quality of their previous education and training. Title I1 authorizes resources, funds, and positions, in excess of existing IHS resource levels, to reduce the known unmet need for health services in certain program areas including patient care, field health, dental care, mental health, alcoholism, and maintenance and repair. The purpose of Title I1 is to build upon and/or strengthen the existing health delivery system by annual increments of resources. Title I11 authorizes construction of both health and sanitation facilities. Title IV authorizes the IHS to receive Medicare and Medicaid reimbursements for services provided in certain L S facilities to H Indian people eligible for Medicare and/or Medicaid. The reimbursements are to be used to enable IHS facilities to attain and maintain national certification standards required of all Medicare and Medicaid providers. The title assures that the regular IHS appropriation will not be reduced by the amount of third party reimbursements collected, that there will be equal services for persons served, and that there will be accountability for the use of the funds collected. Title V authorizes resources to (1) establish health referral or care programs in urban centers having a sufficient Indian population with unmet needs; and (2) establish not more than two rural Indian pilot projects providing outreach services to eligible Indians residing in rural communities near Indian reservations.

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LEGISLATIVE HISTORY
P.L. 96-537
[page 41

Title VI requires that a study be conducted to determine the need for, and feasibility of, establishing a school of medicine to train Indians to provide health services for Indians. Title VII cites requirements for reports, regulations, and a Plan of Implementation, and authorizes leases with Indian tribes and availability of funds. (Although section 705 states that ". . . funds appropriated pursuant to this Act shall remain available until expended," such authorization is superseded by the terms of the appropriation acts providing funds to operate IHS programs. Such appropriation acts specify fiscal year funding except for resources appropriated for the IHS Facilities Budget (Title 111) which are "no year funds" to be used for the purposes identified by the Congress.) The Indian Health Care Improvement Act authorized appropriations for the various programs cnntaicer! t k r e i p . fer E S C ~ !a r s S 1978 through 1980 and provides that authorizations for appropriations for fiscal years 1981 through 1984 are such sums as may be specifically appropriated by a n Act enacted after the Indian Health Care Improvement Act. This provision allows authorizing committees to review and evaluate the progress of this seven-fwal-year program to upgrade health services for Indians in mid-stream and requires specific authorization for any further appropriation of federal dollars to continue this comprehensive program. PURPOSE SUMMARY MAJOR AND OF PROVISIONS The purpose of the Committee bill is to amend the Indian Health Care Improvement Act and the Public Health Service Act with respect to Indian health care, and for other purposes. The bill authorizes appropriations for activities provided in the Indian Health Care Improvement Act, Public Law 94-437, for f ~ c a years 1981, l 1982, 1983, and 1984, and makes certain substantive amendments to such Act. It further authorizes appropriations for the purpose of carrying out section 757 of the Public Health S e ~ i c e Act and makes 6ne substantive amendment and technical amendment to such section.
DEFINITIONS

The Committee bill amends two definitions in the Indian Health Care Improvement Act. The definition of "Secretary" is amended to conform the text of the Act to the redesignation of the Department of Health, Education, and Welfare as the Department of Health and Human Services and the Secretary of Health, Education, and Welfare as the Secretary of Health and Human Services as contained in section 509 of the Department of Education Organization Act, Public Law 96-88. The second provision which the bill amends is the definition of "urban Indian organization". The original definition of the term provides that "urban Indian organization means a nonprofit corporate body situated in a n urban center, composed of urban Indians, . . .". The phrase "composed of urban Indians" has been interpreted in a n unnecessarily restrictive manner in regulations promulgated by the Secretary for the implementation of the provisions of the Indian Health Care Improvement Act. The interpretation

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LEGISLATIVE HISTORY
P.L. 96-537 [page 201

The draft bill would also fund the rural health pilot projects from the appropriation authorization for Indian health services (rather than from the urban Indian health services authorization), and repeal the one percent limitation.

[page 211

The Administrator of the Health Services Administration, Public Health Service, Department of Health, Education, and Welfare provided testimony to the Committee on the authorization of appropriations for fiscal years 1981 through 1984 for the programs and activities contained in the Indian Health Care Improvement Act. His testimony is set forth below: STATEMENT O F GEORGE I. LYTHCOTT, M.D., ADMINISTRATOR, HEALTH SERVICES ADMINISTRATION, PUBLIC HEALTH SERVICE, DEPARTMENT OF IIEALTH, EDUCATION, AND WELFARE Mr. Chairman and Members of t h e Committee: I am very pleased to appear before this Committee to discuss the reauthorization of the Indian Health Care Improvement Act, Public Law 95-437. The Indian Health Service (IHS) has the primary responsibility for the Federal health commitment to the American Indian and Alaska Native people. This health responsibility, rooted in treaties,
[page 221

was stated, along with other responsibilities, in the Snyder Act (Chapter. 115, 42 Stat. 208 (1921)). The charge to t h e Indian Service was very broad, calling for the use of funds appropriated by Congress to be expended for the relief of distress and the conservation of health of Indians throughout the United States. In 1954 these responsibilities were transferred from t h e Department of the Interior to the Department of Health, Education, and Welfare. The Act transferring these responsibilities, Public Law 83-568, reflected, in some what more detail than the Snyder Act, the scope of the Federal health program for Indians in that it made specific reference to the maintenance and operation of hospitals and health facilities. In 1957 the Department was authorized by Public Law to provide assistance for t h e construction of community hospitals where it was determined that this was more effective than direct Federal construction in making needed hospital facilities available to Indians. Public Law 86-121 spelIed out and gave legislative form to our responsibilities for sanitation facilities and services, providing specific legislative authority for domestic and community water systems, drainage, and sewage and waste disposal systems. With t h e passage on September 30, 1976, of the Indian Health Care Improvement Act, Public Law 94-437, the Congress took a major step in defining t h e scope of the Indian health program, expressing two major goals:

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INDIAN HEALTH CARE
P.L. 96-537

(1) To ensure that the health status of Indian people is brought to the highest possible level; and (2) To achieve the maximum participation of Indian people in Indian health programs. The Act is structured to address the backlog of unmet health care needs of Indian people in both reservation and urban settings, and to maintain a health system for providing high quality and quantity health services to these two groups. This Act, in conjunction with the Indian Self-Determination and Education Assistance Act, Public Law 93-638, culminates almost a decade of effort to establish a framework within which Indian people can effectively decide their role in health programs. Public Law 93-638 provides the mechanism, but relies on Public Law 94437 and our other authorities to provide the resources to make Indian Self-Determination a reality. Not only did Public Law 94-437 set out the'Nationls goals for Indian health, but the Act also spelled out for the first time in legislative language many of the programs and services already provided by IHS as well as establishing a number of new programs. These new programs deal with manpower and the eligibility of IHS facilities for Medicare and Medicaid reimbursement. In addition, programs for alcoholism and urban Indians were specifically provided for and given a legislative base. A brief review of both the new programs and the augmentation of ongoing programs shows that there have been major accomplishments in implementing the Indian Health Care Improvement Act. Indian health manpower The purpose of title I was to increase the number of Indians in the health professions, and to increase the number of health professionals serving Indians. The goal was to develop a reservoir of
[page 231

trained Indian health manpower to staff both Indian-operated health programs and IHS programs. The methods adopted in title I to reach this goal included a variety of recruitment activities to identify and encourage Indian students to pursue a career in the health professions, scholarships-both preparatory and professional, extern assignments during non-academic periods to gain practical health professions experience, and continuing education. Experience in the Act's first two years of implementation has been encouraging. The number of Indian students enrolled in health professions has increased substantially. During fiscal year 1978, the first year of program operation, 454 preparatory and professional scholarships were awarded. This number increased to 643 during fiscal year 1979. Of the 50 students who graduated from health profession schools with Indian Health Scholarships, 30 are scheduled to work or are already working for IHS, and 20 are continuing in graduate programs or working in other health programs that meet the requirements of Public Law 94-437. The IHS awarded 9 one-year recruitment grants in fiscal year 78 and 16 one-year recruitment grants in fiscal year 1979. Indian people recruited into the health professions through activities supported by these grants may secure financial assistance from IHS scholarship programs, the National Health Service Corps Scholar-

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INDIAN HEALTH CARE
P.L. 96-537

Health services for urban Irtdians While past Federal policy generally placed urban Indians beyond the jurisdiction of the IHS, Congress has previously provided separate assistance to urban Indian people which did not compete with assistance available to those Indians residing on or near reservations. The purpose of title V is to develop programs to make health services more accessible to urban Indian people. Funds appropriated through title V have resulted in the establishment of 10 new urban Indian health programs and expansion of 31 previously funded programs. These 41 programs a r e divided into four phases ranging from Phase I, initial funding, to Phase IV, delivery of ambulatory care. During fiscal year 1979, the urban programs provided 108,645 medical services, 33,893 dental services, 154,987 outreach and referral services, and 77,188 other services which included mental hes1t.h. nautrltlo_n_, hea!th edrrcatie-n.,fl-! smiy planning, etc. Urban Indian health programs have demonstrated success in obtaining funding support from third party sources in addition to the IHS. In fiscal year 1979, for example, nearly $6.6. million was generated from such other sources. An additional major accomplishment was the designation of the urban Indian population as a health manpower shortage area. Thus, National Health Service Corps ( W S C ) health professionals can be assigned to urban Indian health programs. To date, 15 NHSC assignees have been placed in 5 urban Indian health programs. American Indian School of Medicine feasiblity study Title VI required that a study be conducted to determine the need for, and feasibility of, establishing a school of medicine to train Indians to provide health services for Indians. The Report on the Need for and Feasibility of Establishing and American Indian School of Medicine was completed by the Department's :-Iealth Resources Administration and, on October 23, 1978, was transmitted by the Secretary to the Congress. The Secretary's analysis determined that it is not programmatically sound to establish an American Indian School of Medicine. Unrnet w e d s and future authorizations One of the most important aspects of Public Law 94-437 is the requirement in section 701 that the Secretary shall review expenditures and progress made in reaching the goals established by this
[page 271

Act and make recommendations to the Congress concerning future authorizations for fiscal years 1981-84. Soon after the Act was passed, Indian tribal and urban leaders recommended, and HEW officials agreed, that Tribal and Urban Specific Health Plans (T/USHPs) should form the basis of a National Plan for the Secretary's consideration in making the report to Congress required in section 701 of the Act. This T/USHP process was part of the Plan of Implementation presented to the Congress by the Secretary on September 12, 1977.

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LEGISLATIVE HISTORY
P.L. 96-537

Literally hundreds of tribes and urban Indian groups have now, for the first time, developed T/USHPs which attempt to identify their individual needs. This planning process continues, and with the accumulation of more and improved data should remain a major factor in shaping the future health services provided to and, increasingly, by the Indian people. The President's fiscal year 1981 budget recommendation for the Indian Health Service includes funds aimed a t the unmet needs identified by the Public Law 94437 planning process. The relationship between the Indian Health Care Improvement Act and the Indian Self-Determination and Education Assistance Act will have a continuing impact on the IHS budget and program. The data accumulated in developing the tribal and urban specific health plans gives the various Indian communities an opportunity to present their own health services planning effort rather than re!yizg sc!e!y s n the Indian I-Ieaith Service to continue planning of, and responsibility for, their health services. The Indian Self-Determination and Education Assistance Act encourages and assists tribes in managing health services programs. The results are already apparent. Tribes and tribal organizations now operate 3 hospitals, 201 clinics and many other services. The new planning process will not only provide an invaluable tool to involve Indian communities in planning their own health systems but will also pasitively affect the continuing trend toward greater consumer 'input and tribal control over health services. The planning effort identified a need for total additional support, from all sources, a t an optimum of over $2.8 billion (in 1981 dollars) during the fiscal years 1981-84 period to achieve the goal of health parity for Indian people by the end of fiscal year 1984. Pursuant to the requirement of section 701 of the Act, we have also identified some funding levels for fiscal years 1981-84 which are considerably below the $2.8 billion total but, as a further measure of the longterm effort, serve as an indication of what we believe we could reasonably and costeffectively apply t o w a ~ d goal, considered apart the from any of the Department's other priorities or the necessity for fiscal restraint. The actual size of the budget requests for fiscal years 1982 through 1984 will, of course, be subject to change in need determination, prevailing economic conditions, and other factors, and we are therefore recommending that you include in the legislation specific authorization amounts only for 1981, and "such sums as may be necessary" for 1982 through 1984. Not all the unmet needs identified through the planning process should or can be met through Public Law 94-437 and the Indian Health Service. Although the IHS is a primary resource for the Indian people, we must nevertheless plan with the premise that
[page 281

the Indian people, as citizens of the United States and of the States in which they live, are entitled to equal access to all other Federal, State, and local health programs as are other citizens. Other Federal, State, local, and private programs must bear a portion of the burden of meeting these unmet needs. In addition, the funding levels identified reflect the current economic situation and the practical limits this situation puts on the budget process.