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

Case 1:02-cv-01383-MMS

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LECfSLATtVE HtSTORY
P.L. 9G437

INDIAN HEALTH CARE IMPROVEMENT ACT
P.L. 94-42;, see page 90 Stat. 1400

Senate Report (Interior and Insular Affairs Committee) No. 94-133, May 13, 1975 [To accompany S. 5221 House Report ([nterior and [nsular Affairs Committee) No. 94-1026 ( [ ) , Apr. 9, 1976 [To accompany H.R. 2525.1 House Report (Ways and Means Committee) No. 94-1026([[), May L , 1976 [To accompany H.R. 25251 O House Report (Interstate and Foreign Commerce Committee) No. 94-1026(III). May 12, 1976 [To accompany H.R. 25251 iiouse Eepori, (interior and insuiar Af tairs Committee) No. 94-1026 ( I V f , J u n e 8, 1976 [To accompany H.R. 25251 Cong. Record Vol. 121 (1975) Cong. Record Vol. 122 (19761 DATES O F CONSIDERATION AND PASSAGE Senate May 16, 1975; September 9, 1976 House J u l y 30, September 16, 1976
T h e Senate bill was passed in lieu of the House bill a f t e r amending its language to contain much of the text o f the House bill. T h e House Report ( P a r t s L-IV) is s e t out.

HOUSE REPORT NO. 94-1026-PART
[page 11

I

T h e Conlnlittee 011 iiltcrior aucl T11sular Affairs. to \\-l~onl was referred the bill (H.R. 252.';) i l ~ ~ p l ~ ' ~ ~ l e ~ l t to tile Feclcral resl)ol~sibility for tile care ancl t.clt~catiol~ the I i ~ d i : ~pecfiolc by ir~~prol-iug of l~ the serriccs ar~cl facilities of E'ccleral I I I ~ I ~ : ~ I I ot.ogi.atils a d en11et~ltl~ couragiug 11lasi111tu1l ~)a~.ticil)aticl~t[ ~ l t l i i iil ~ sttclc [lrogl.ail~s. of l ~~ ilttd for otl~eu1,url)oses. Ilx<-ilig c.o~rsiclr~.cci1 c S s:ill~c. celml-ts fa\-orably tI tl1c:rcoil \~-itll a r u e ~ t c t l ~ iirtcl 1-eco111111c1~tlstltc bill as a~rleilded all ~c~~t tl~itt d o 1'""(page 131

1. PURPOSE, HISTORY RACKGROC~SD H.R. 2505 :\SO @I?

T h e purpose o f 1i.E. 2525,the Indian He:\lt11 Care Ernprovernent Act, is t o raise ttle status of Ireztlth care for ,\me.[-ican irldiu~sand level equal to that Alaska Xatives, over a s e v e n - p a r period, to enjoyed by other ihnerican citizens. T o meet tllis purpose, H.R. 25% would pr-wide the direction arlcl f i n a ~ ~ c i r~sourccs overtome the al to iuadequacies it, tilt. cxistiltg Federal [ndiari Itealtlt care progr-arc\ and ir~vitothe. qrcatest t)ossiblc [):tr-ticipat ior~o f [rtclia~~s and :\laska Natives it1 ttw direction a ~ \ d nr:\rragc~t~crlt tItat \)cogramof H.It. 23.25, tIte Ir~tlisn[ i e . t ~ I t I(':Lie [lnl)r-overncrtt..\ct, acldrcsesone ~ of t . 1 most. ctitic.:tl situations irl t t ~ c ~~ [:rtitc.tl St:ttes; tile. healtlt status

EXHIBIT 37
In Support of Plaintiffs Opposition to Motion to Dismiss on TPA & IHS Samish v. U.S., No. 02-1383L

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INDIAN HEALTH CARE ACT
P.L. 94-437

of, and the provision of basic health services ,to, the American Indian people. The most basic human right must be the right to enjoy decent health. Certainly, any effort to fulfill Federal res[)onsibilities to the Inrlian people mast begin with the provision of healftllservices. 111 fact, health services must be tlle cornerstone upon which rest all other Federal programs for the benefit of ludians. Without a proper health status, the Indian people will be unable to fully avail themselves of the many economic, cdacaational, and social programs already directed to them o r which this Congress and future- Cougrmes will provide them.
B. HISTORY O F INDKAN HEALTH CARE

,

I n the early history of this country, the only Federal health services . . aa;vsi!ab!c tG ~iid~a17s tkLCIx Pi~t-ide$ ii-li:iiary pily slciarLs i7ci.c sibled to frontier forts and reservations. At times, these services were Anderecl .to fulfill treaty promises. However, the pl-imary concern o f these physicians was the prevention of the spread of smallpox and other c o ~ ~ t a g i o u s diseases--diseases which wet% virtually rtnknotvn to Iildians before their contact with the rvllite man.
[page 141

I n 1849, Indian health policy shifted from military to civilian administmtion with the transfer of the Bureau of Indian Affairs ( B I A ) from the War Department to the Department of the Interior. L41ttloughsome limited progress occurred under this new administrative arrangement, by 1875 there were still ollly about half as many dootors a s there were Indian ageucies, and by 1900 the physicians sewiog Indians numbered only 83. During this time, Indian health services were financed out of miscellaneous funds appropriated t o the Bureau of Indian Affairs. Appropriations earmarked specifically for health services to Indians began with $40,000 in 1911. T h e Snyder Act (Act of November 2, 1921, 42 Stat. N 8 ) provided the formal legislative authorization for Federal health care for Indians. It*authorized the Secretary of the Interior to expend funds for the "relief of distress and conservation of the health of Indians." This short phrase of the Snyder A d cunkinues to be the basic legislative statement of the Federal Government7s obligation to provide health services to Indians. I n the mid-1920's a more collcerted effort was made t o assist the healtll needs of Indian cornnlunities. This effort was facilitated by the 'assignment of commissioned officers of the Public Health S e w ice to I n d i a ~ health care services. While these highly trained medical i and public health officers strengthened the overall direction of the Federal Indian health program, other shortcomings in that program f~ustrated success in overcoming the numerous serious health prob!ems eIndians. T h e program was continually plagued with outdated facilities, severe understaffing and inadequate appropriations. By the mid-1940's, health services and the level of Indian health. b deteriorated so severely that pressure began to mount for the d transfer of the Ildiau health program to the Public Health Service In the. Department of Health, Eclucation, and Welfare. T h e initial lmpetus for the transfer came from several studies done of the B I A health program, including a 1948 Bureau of the Budget study? the

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LEGISLATIVE HISTORY
P.L. 94-437

1949 report of the Hoos-er Commission. and a 19.19 strtdy by the iimerica~t Jfedical .issociation, all o f schich found the need for a approach to I~ttliattl~ealtltproblerns. 'rhe contents of tltat report and sltbseqtte~utlegislative Itistorv sug-gest the ironic fact that many Congcessnlctt \vl\o atl\-acatctl terminatton may have sttpported the transfer as a n action compatible tvittt tlteir effort to repeal lasrs which ttlev felt unss-iselyset Inclia~ls apart frorn other citizens. I n 1954, tltc Corlgress enacted tltc Transfer Act (71 Stat. 370) wlticlt resulted in tlte 1955 transfer of the Federal respot~sibilit~ for healt-It services t o India~tsfrom tlte Dtt~.eatrof I~lclianAffairs in the Depaltmeut of the r~ttcr-ior the uetvly created Divisiou of Indiau to. Hc:ilth, under the I1.S. S u r ~ e o u General in the Prtblic I3ealtll Service, I)epartutent of Healtlt, lcducation, and IVelfarc ( H E W ) . In 1968, tlle Ilivision of I~lcliarlI-lcaltl~ n s rctitlecl tlle Iudian Health ServI ice ( I H S ) . T h e frtnctio~tsof the Surge011 General ltave now heen almlished, ant1 the ItealtI~ sct.ricc progralns ill IIEI?' Ilarc gone thrortglt seve~.alaclmi~t rat-is-e r.eor.ganizations. Tlle I H S is nosr a division ist of the Public Health Scrvice in ttte Hcnlth Set-vices :idministration of FIEIV. Ijcspite its inception in a terlrtillatiou atmospl~et-e. The. I H S has grosrtt rapidly sincc 12155. F W Ia ~ brtdget of $524.5 million alld a staff of :is74 in 1955. it. uosr has a11a~rtllorizcd staff of 8108 and budget of approximately $274 million. a n an~tttal
[page 151
C . T H E DEPLORABLE STATUS O F INDMN H E A L T H

T h e sad fact are that the vast majority of Indians still live in a n ens-iron~nc~tt cltalactcrizd by inadcqrlate alld understaffed health facilities; irnproper ot- rlolresistent sraste disposal and water supply systc~rts;and colrtiuuing darrgers of deadly o r clisabling diseases. Tllese circun~stitnccs,in combiuation, cause Indians and ,ilaslca L'r'ativcs to s~lfler healtll status far b l o w that of tlle general populaa co~nrntutities and Sative villages with ttealtlr tion and plague Inclia~i concerns otlier :inlcricalt communities ha\-e, forgotten as tong as 23 years ago. Healttt statistics provide a measure of not only the progress in. but also tltc continuing pligltt of, Intlian health: the incideltcc of ttrbercrtlosis for- Indians aud Alaska Natives is 7.3 times Iliglter than the rate for all citizens of the UuitRd States; and, srllile respiratory a~ltl bladclc-Iillltcss statistics arc II(& reported ilr the genet-al population, Iuclian Hcalth Service officiaIs state emphatically thak the rates for thew diseases anloug I n d ~ a n s and ,ilaska Natives are sigr nificantly h i ~ t l c than tllat of thegeneral population. Otitis medta, a n infection of tlte inner ear which affects most commonly children under the age of 2 years, contiuues to be a leading cause of disability in Indians and Alaska Natives, and, altltough surgical treatment is possible which can generally prevent the long-term a a n d serious disabilities of deahess and learning deficiencies, o ~ t l y fraction of this essential surgery is now being provided. T h e infant-inortaliby ratc among Indians is 1.1 times the national average, whil* the Indian birth rate conti~lues a rate twice that of at. all other ,Imericans. T h e prevalence o f d i s m among Indians ca~tnothelp but have a significant ads.e~se impact on the social and cultural fiber of their corn-

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INDCAN HEALTH CARE ACT
P.L. 94-437

munities, contributing to gerleral societal disintegration, and the attendant problems o f mental illness, alcoholism, accideuts, hon~icide and suicide. For example, the suicide rate for Indians and Alaska Natives is approximately twice as high as in the total U.S. population. The -health statistics relate a deplorable tale, a tale which Itas a can expect to live to the tragic ending. While every other A~uerican age of at least 70.8 years, the Indian and Alaslca Xative calk expect to live only to age 65.1. All efforts to altsr these health conditions among Indians are met of with the initial alld fundamental intpedi~nent outdated or inclaquate health facilities. Of the existing Indian Health Servicc facilities, some 38 hospitals, centers, and 240 other health stations are a t least 20 years 66 healtl~ old. Many are old one-story, wooden buildings wit11 inadequate elecand of such tricity, ventilation, insulation, and fire protection systo~us, insufficient size as to jeopardize tlte healtll and safety of their OCCUpants. To meet the ~ ~ e e ofssome 498,000 Indians, THS a ~ l d d contract facilities provide some 3,700 Ilospital beds. Con~pared with a llational average of 1 hospital bed per 125 pelsons, ITlS a ~ t d contract facilities provide 1 bed per 135 pe,rso~ls, shortage of luore than 200 beds under a existing standards of service and demand.
(page 161

The Joint Committee on Accreditation of Hospitals (JCAH) has investigated the conditions of Indian Health Service facilities I t is their conclusion that only 26 of the 51 existing IHS hospitals, less than one-half, meet the J C A H standard of accreditation (either because of insufficient staff or poor physical plants), that two-thirds of the hospitals are obsolete and that 22 need complete replacement. I n order to overcome the gross deficiencies in the quantity and quality of existing facilities, more money must be allocated. Per capita expenditures for Indian health purposes are 25 percent below per capita expenditures for health care in the average American community. The greater incidence of disease among Indians renders this deficiency all the more acute. It is further compounded by the fact that many of our national health programs, designed to assist the general population, are difficult or impossible to apply to Indians. Medicare, Medicaid, and social security programs afford little relief because, given the unique social situation of ,most Indians, very few know they are eligible for Medicare or have worked long enbugh for social security eligibility. H.R. 2525 would provide the necessary funds and direction to eliminate the deficiencies in facilities and would improve access to Medicam, Medicaid, and other similar programs. Central to the Indian health tragedy is the manpower shortage among physicians and related health personnel-probably the most pressing and serious problem facing the Indian Health Serviw. At present, there are 495 physicians in the IHS. Simply translated this represents a ratio of one physician for every 988 Indians as against a national average of slightly under 600 persons per physician. This shortage is complicated by the highly dispersed and remote locations

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LEGISLATIVE HISTORY P.L. 94-437 of many Indian tribes, vast distances between settled areas on reservations, and the lack of adequate roads and emergency transportation and communication systems. Leading medical officials have given truly dire warnings that any further decline in manpower could have critical implications for the health of Indians. Yet, despite these warnings, the severe manpower shortages which are now being experienced by the Indian Health Service are likely to become even more acute in the coming years. For approximately two decades, the Indian Health Service drew on the Doctor Draft Act as the main source ,for its supply of needed .physicians and dentists. Under that Act, physicians and dentists upon completion of their traiuing were pernlittcd to serve two years in the Public Health Service in lieu of their ruilitary commitment. Consequently, a large uuniber of such healtlr professionals were assiped to the Indian I3ealth Service in fulfillment of their 2-year m i l ~ t a r y requirement. However, the expiration of the Doctor Draft Act authority on J u n e 30, 1974, has had the pra.ctics! e&ct sf c!iiiiiii~iic~g ihis stabie source of health professionals for assignment to the Indian Health Service. An absence of adequate housing facilities and the remotcness a n d cultural isolation of IHS assignments have added to the problem of recruiting p r o f k i o n a l staft'. Unfortr~nately.tltc lntlian people ca~trlot1001: to their own tribal nlenthers f w relief froru the ltealtlr rrlanporvcr. sllortagc. Tltere a.re only 50 known physicians of Iuilian .

[page 171

H.R. 252.5 promises both to increase the number of health professioitals serving Indians either as Indian Health Service staff members o r private practititioners and to open new opportrlnities for young Indian men and woruen t o enter the health professions for eventual service to their own peopIe. Ry and large the problems discrlssed above relate to tlkose Indians who live or1 o r near reservations a n d are. memtwrs of fedenlly recogsegruent of tlte Indian nized tribes of Xltdians. F-iowever, a s~rhstantial pop~rlation-a total o f more tllan 400,000 Indians-resides away from 1 the reservation, rnostly in iarge urban craters. - differtnt set of h=lt,h service problems afflicts the urban Indians and yet the result .is a health status for tlter~rqrlitesi~nilar o tlrat. of the rescrvation Indrans. t H.R. 2525 contains provisions aimed specifically a t assisting r t r h n Indians to develop healtl~leadership among their .own members and to establish a means of resorlrce idel~tificationwhich will help to meet their most pressitkg health rieds. An integral aspect o f this effort will be the establishment of outreach programs to seek out individuals and families who require Ikealtll care and refer them to services a t the earliest possible date. I n addition while current Indian 'policy I)"hibits the extension of the Indian Health Servicehospital and medical , care progmm to the ~ ~ r b centers. H.R. 2525 proposes a new program an which will permit the provision of basic heatth services to Indians t concentrated in a uuirlher of major cities t h r o u ~ h o uthe United StatesI t siiorrld be err~phasized,Iron-ever, tlrat h e funds designated for this proararn will in no way rcduce the level of funding proposed to meet tlte serious health..and rneclical needs for the thorisancls of Indian people residing or1 fedarally recogni7Rd reservations and in Indian

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INDIAN HEALTH CARE ACT
P.L. 94-437

communities. .The mernbers of federally recognized tribes and urban Indians shor~ld r~nde.r.starld that H.R. 2525 in no way sets rtp a "tug-ofwar" between them for limited financial resources and services. Rather the measurer addresses itself to the needs of both groups.
D. CONCLUSION

T h e Indian Health Service is the chief instrument through which a whole range of health care services can be delivered to the Indian people. Despite its record of accomplishment, the availahle evidence clearly demonstrates th,& the, time I ~ a conle to further strengthen that s inst rt~ment. T h e purpose, then, of H.R. 2.595 is to give the Indian Health Service the financial a11d llr~rnanresources and the legal mandate to meet the of continuing ~llallenges promoting better Iiealth and providing hetter health care among Indians.

Through the various titles, the bill proposes to achieve the following objectives : T o assure a n atleqrrate 1lealt.h manpower base to provide proper health services t o Intlians and a sufficie.nt cadre of trained Illdian professionals and other health worlcers to permit Indian cornrnunities to have a maxi-m;m voice in shaping those serviccs (titleI): T o assure the eliiuination of the enormous backlog among Inand essential needs and essenti~l dians of ulunet Ilealtll n e d ~ patient care (title 11) ; To construct modern, eficient hospitals and other health care facilities serving Iudians where none esist and renovate the existing facilities, most of which are in a state of genera! deterioratiou (title 111); T o overcolne the adverse effects of unsafe water supplies and insanitary waste disposal syste~nsin Iudian co~iln~unities and llo~nes(title 111) ; T o enable Indian people to exercise their citizenship rights to a broader range of national health resources (title IV) ; T o assist urban Indians both to ga_in m e s s to those community health resources avaiiable to then1 as citizel~sand to provide primary health care services mllere those resources are inadequate or inaccessible (title V ) ; and T o provide for the establisllment, funding, and operation of a n American Indian Sclloctl of 3Ced1cine to insure t l l there is ~ a pool of adequately, appropriately trained Indian physicians and other health professionals (title V I ) . T h e seven inter-related titles of H.R. 2525, if enacted into law, would autllorize a sustained and coordinated Federal health effort addressed t o t,he excessive baclclog in the treatmerit of diseases and illnesses affecting Indian people in both reservation and urban sett i ~ ~ g to; the pliysical sliortcon~ings s and staffing deficiencies in Indian
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