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

Case 1:02-cv-01383-MMS

Document 60-39

Filed 05/02/2007

Page 1 of 7

102 STAT. 4784

PUBLIC LAW 100-713-NOV. 23, 1988

Public Law 100-713 100th Congress
An Act
Nov. 23. 1988 [H.R. 52611 Indian Health Care Amendments of 1988. Appropriation authorizations. 25 USC 1601 note.

To reauthorize and amend the Indian Health &re Improvement Act. and for other
PurposeS-

Be it enacted by the Senate and House of Repmsentatiues of the United States of America in Congress assembled,
SHORT TITLE

S ~ O 1. This Act may be cited as the "Indian Health Care N Amendments o 1988". f
TABLE OF CONTENTS

SEC.2 Table of contents.
Sec. 1. Short title. Sec. 2 Table of contents. Sec. 3. References. Sec 4. Appropriation; availability.

TITLE I-INDIAN HEALTH MANPOWER Sec. 101. Health professions recruitment program for Indians. Sec. 102 Health professions preparatory scholarship program Sec 103. Indian Health Service extern p~ Sec. 104. Indian health professions acholarsbp program. Sec. 105. Continuing education allowances Sec. 106. Native Hawaiian health professions scholarship program. Sec. 107. Community health representatives. Sec 108. Indian health service dinical atafEng. Sec. 109. Other recruitment and retention pmvisiom. Sec. 110. Report on recruitment and retention.

TITLE II-HEALTH SERVICE5

Sec. 201. Improvement of Indian health status.
Sec. 202 Catastrophic heal& program. Sec. 203. Heatth promotion and disease prevention. SBC 204. R e i i m m e n t of certain expeasea;research.

TITLE III-HEALTH FAClLlTES

S c 301. Consultation; closure of facilities; reports. e
Sec. 302. Safe water and eanitary waste disposal facilities. Sec. 303. Use of nonService funds for renovatim. Sec 304. Bethel. Alaska, hospital.

TITLE IV-ACCESS TO HEALTH SERVICES §ee 401. Medicare provisions. Sec. 402 Demonstration program.

TITLE V-URBAN INDIAN HEALTH SERVICES
Sec. 501. Revision of program. Sec. 502. Urban Indian organization.

TITLE VI--ORGANIZATIONAL IMPROVEMENTS

Sec. 601. Establishment of the Indian Health Service as an agency of the Public
Health Service.

EXHIBIT 35

521
Heinonline
--

In Support of Plaintiff's Opposition to Motion to Dismiss on TPA & IHS Sarnish v. U.S., No. 02-13831.

102 Stat. 4784 1988

Case 1:02-cv-01383-MMS

Document 60-39

Filed 05/02/2007

Page 2 of 7

PUBLIC LAW 100-713-NOV.

23, 1988

102 STAT. 4785

mZE W-MISCELLANEOUS PROVlSlONS Sec 701. Leasing and other contracts. Sec 702 Arizona as a contract health service delivery area Sec. 703. Eiiiiy of California Indians. lgblt &c. 704. California as a eontract k d t h service delivery area. Sec. 705. Contract health facilities Sec 706. National Health Service Corps. Sec 707. Health services for ineligible persona Sec. 708. Infant and maternal mortalith fetal aleohol syndrome. Sec 709. Contract health services for the Trenton Service Area Sec. 710. Indian health service and Veterans' Admiitration health facilities and
Sec 711. Sec 712. Sec 713. Sec 714. Sec 715. Sec 716.
services sharing. Reallocation of base resources. Provision of cervices in Montana Demonstration projects for t n i a l management of health care services. Health care for r r l areas. ua Child e e d abuse treatment program. Pueblo substance abuse treatment project for San Juan Pueblo, New Mesh. Sec 717. Study with respect to nuclear resource development health hazards. Sec 718. Limitation on use of funds appropriated to the Indian Health Service. Sec 719. Eligiiilifqfor services.

TITLE Vm-SEVERABILlTY PROVISION
S e c 801. Severabiiity.
BEPERENCIS

SEC 3 Except as otherwise specifically provided, whenever in this . Act an amendment or repeal is expressed in terms of an amendment to, or a repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Indian Health Care Improvement Act (25 U-S-C.1601, et seqq.).
APPROPRIATION; AVAILABILITY

SEC. Any new spending authority (described in subsection (cX2) 4. (A) or (B) of section 401 of the Congressional Budget Act of 1974) which is provided under this Act shall be effective for any f s a year icl only to such extent or in such amounts as are provided in appropriation Acts. TITLE I-INDIAN HEALTH MANPOWER
HEALTH PROFESSIONS RECRUITMENT PROGRAM FOR INDIANS

25 USC 1601

SEC.101. Subsection (c) of section 102 (25 U.S.C. 1612 (c)) is amended to read as follows: "c There are authorized to be appropriated for the purpose of () carrying out the provisions of this section"(1) $600,000 for fiscal year 1989, "(2) $650,000 for f s a year 1990, icl "(3) $700,000 for fiscal year 1991, and "(4) $750,000 for fsa year 1992.". icl
HEALTH PROFESSIONS PREPARATORY SCHOLARSHIP PROGRAM

SEC. (a) Section 103 (25 US.C. 1613) is amended by striking 102. out subsection (dl and inserting in lieu thereof the following "(dl The Secretary shall not deny scholarship assistance to an eligible applicant under this section solely on the basis of the applicant's scholastic achievement if such applicant has been admitted to, or maintained good standing at, an accredited institution.

522
Heinonline - - 102 Stat. 4 7 8 5 1 9 8 8

Case 1:02-cv-01383-MMS

Document 60-39

Filed 05/02/2007

Page 3 of 7

102 STAT. 4800

PUBLIC LAW 100-713-NOV.

23, 1988

amount of the retention bonus for the period c o o e d by the agree ment, plus interest as determined by the Secretary i 8ar)rdance n with aection los(rX2)(BL "(el Tbere a m authorid to be appropriated $3,200,000for each of the fiscal years 1990,1991, and 1992 to carry out the provisions of this fu!Ction.".
REPOET ON ItECEt-

AND -N O

25 USC 1611 note.

(1) 10 ph 'cians or who are em l o y o~c r atsigned )( 3 rep-tativea ! of tribal health boards, and (3) of health care organization. ". I-ne1 reprwentative @ ian durt#urunder subaxtion (a) sMi (D) advisory panei e conduct an investigation of(1) the adminish.ative policies and mguW.org procedures which im e the Fecruitment or Fetention of hysicians and other he&? fessionals by the Indian ~aaltR Service, and changes n to establish pay grad= (21 the for health p d o n a l a employed by, or assigned t ,the Service o that <)orrespond to the pa grades established for positions provided under d x m il0g and 4104 of title 38, United S t a b Code, and the ooeta associated w i t h establishing such pay grad=(c) By no later than the date that is 18 months after the date of enactment ofthis A& the advisory panel established under subsection (a) ahall submit fo the Congress a report on the investigation conducted under subsection ( ) together with any recommendations b, for admhk&ative or legislative changes in existing law, practim,

estaMish an advisory panel om

SLOC. (a) The Secretary of Health and Human Service8 shall 110.

-

IMPUOVKMENT OP MDIAN HEALTH STATUS

Ssc 201. (a) section 201 (25 U-S-C. 1621) is amended to read as followx
U I M P ~ OF LNDIAN HEALTH = A m ~ m

"Sm.201. (a) The Secretary is authorized to expend funds which are appropriated under the authority of subsection (h), through the Service, for the purposes of"(1) raiging the health status of Lndians to zero deficiency, "(2) eliminating backlogs in the provision of health care services to Indians. "(3) m e i g the health needs of Indians in an efficient and etn equitable manner, and "(4) augmenting the abiliq of the Service to meet the following health service responsib~litis with mspect to thase Indian tribes with the h ' i levels of health resources deficiency: "(A) clinical care (direct and indirect) including clinical eye and vision care; " B preventive health; () "( 'dental cam (directand indirectk 0 'YD) mental health, including community mental health services, inpatient mental health services, dormitory mental health services, therapeutic and residential

523
Heinonline - - 102 Stat. 4800 1988

Case 1:02-cv-01383-MMS

Document 60-39

Filed 05/02/2007

Page 4 of 7

PUBLIC LAW 100-713-NOV.

23, 1988

102 STAT. 4801

treatment centers, and training of traditional Indian practitioners; "(El emergency medical services; "0 treatment and control of, and rehabilitative care related to, alcoholism and drug abuse (including fetal alce hol syndrome) among Indians; "(G) accident prevention programs; "(33 home health care; "0 community health representatives; and "J maintenance and repair. (l "(bX1) Any funds appropriated under the authority of subsection (h) shall not be used to offset or limit any appropriations made to the Service under the Act of November 2, 1921 (25 U.S.C. 13), popularly known as the Snyder Act, or any other provision of law. "(2) Funds which are a ~ ~ r o ~ r i aunder the authoritv of subsected tion (h)may be allocated to, or used for the benefit of, any Indian tribe which has a health resources deficiency level at level I or 1 1 only if a sufficient amount of funds have been appropriated under the authority of subsection (h)to raise all Indian tribes to health resources deficiency level 1 . 1 "(3XA) Funds appropriated under the authority of subsection (h) may k allocated on a service unit basis but such allocation shall be made in a manner which ensures that the requirement of paragraph (2) is met. The funds allocated to each service unit under this mbparagraph shall be used by the service unit (n accordance with i paragraph (2)) to raise the deficiency level of each tribe served by such service unit. " 'l'he apportionment of funds allocated to a service unit under 0 subparagraph (A) among the health service responsibilities described in subsection (ax41 shall be determined by the Service in consultation with the affected Indian tribes. "(c) For purposes of this section"(1)The health resources deficiency levels of an Indian tribe are as follows: "(A) level 1 - 4 to 20 percent health resources deficiency; " B level 11-21 to 40 percent health resources deficiency, () " 0 ( level I U - 4 1 to 60 percent health resources deficiency; "0) level IV-61 to 80 percent health resources deficiency; and "(El level V-81 to 100 percent health resources deficiency. "(2) The term 'health resources deficiency' means a percentage determined by dividing"(A) the excess, if any, of"(i) the value of the health resources that the Indian tribe needs, over " the value of the health resources available to the ( i ) Indian tribe, by "(B) the value of the health resources that the Indian tribe needs. "(3) The health resources available to an Indian tribe include health resources provided by the Semce as well as health resources used by the Indian tribe, including services and financing syetems provided by any Federal programs, private insurance,and programs of State or l d governments.

524
Heinonline - - 102 S t a t . 4801 1988

Case 1:02-cv-01383-MMS

Document 60-39

Filed 05/02/2007

Page 5 of 7

102 STAT. 4802

PUBLIC LAW 100-713-NOV. 23,1988

"(4) Under regulations, the h t a r y shall establish pmce duma which allow any Indian tribe to petition the Secretary for a review of any determination of the health resources deficiency level of such tribe"(dX1) Programs -red by an Indian tribe or tribal organization under tbs authorie of the fndian Self-Determination Act shall be eligible for f h h appro riated under the authority of subtxction (b) on an equal basis w! programs that are edminis i t tered d k d l y by the Service"(2) If an funds allocated to a tribe or service unit under the authority o f h i s section are used for a contract entered into under nin the I d a Self-Determination Act, a reasonable portion of such funds may be used for health p training, technical assieta n , and other admhbtmtive a u n c t i o n a . Reports. ) h ~ t fin d M = s %& a * sf & A. er & & t h the '*@ Ey % enactment of the Indian Health Care ~rnendmentaof 1988, the Secretary shall submit to the Congmm the current health s e m priority r m report of the Service for each Indian tribe or service umt, m u b g newly magnhd or acknowledged tribes. Such report shall eet out"(1) the methodology then in use by the Semce for determining tribal health reeoumea deficiencies, as well as the m s ot recent apphti011 o that ~ ~ 1 o g y . , f "'(2) the level of health reswrces deficiency for each Indian tribegedbyttaetkrvk "(3) the mount of funde necessary to raise a l Indian tribes l served by the Service below health resources deficiency level I1 to health resources deficiewv level II: "(4) the amount of fun&. n k e s m y b raise all tribes served b the Senrice bdm health resources deficiency level 1to health m m m x s defkiem level I ; "5 the amount 6f fun& necessarg to raise all tribes served by () the Service t zero health resoo deficienm and -"(6) an t e of" A the amount of health service funds appropriated () under the authority of this Act, or any other Act,including the amount of any funds transferred to the Service, for the pceceding fiscal year which ia allocated to each ~ervice unit, Indian tribe,or comparabh entity; "'03)the number of Indians eligible for health services in each service unit or I d a tribe, and nin " 0 number of Indiana uaing the Service resources (the made available t each service unit or Indian tribe. o President of U-S. " f 1 The President shall include with the budget submitted to (X) the Congreaa under section 1105 of t t e 31, United States Code, for il each fiscal year a separate statement which apecifiea the amount of funds r e q u d to carry out the proviaions of this section for such fiecal vear. -"(2) h appropriated under authority of this section for any & t % d vear shall be included in the base bu&et of the Service for the o determining appropriations under this section in s u b f quent fiscal years. "(g) N t i g in this section is intended to dimininh the primary ohn responsibility of the Service to eliminate existing backlogs in m e t health care needs,nor are the provisi0118o this section intended to f the Service from undertaking additional efforts to
~

P .

-

525
Heinonline
--

102 S t a t . 4802 1988

Case 1:02-cv-01383-MMS

Document 60-39

Filed 05/02/2007

Page 6 of 7

PUBLIC LAW 100-713-NOV.

23, 1988

102 STAT. 4803

"6) There are a u t h o M to be appropriated for the puqmee of canyiy out the pruvisions o this sectionf (1) $19,000,000 for iiscalyear 1990, "(2) $19,000,000 f w fiscal year 1991, and "'(3)$20,000,000 for 6sad year 1992 Any funds appropriated under tbe authority of this subsection shall be designated as tbe thelndian Health Care Improvement F n ' " ud.. (b)!3ection 4 (25 US-C. 1603) is amended by strikmg out subsections (i), 0, and () and by inserting in lieu thereof the following k, new t d m e c t i m 'Yi) ' r a offie' meam an admbhhitive entity including a p m Ae gram ofTim, witbin the Indian Health Service through which services and funds are provided to the af.?~O?units within a defined
-..&:A -Ttij&----- P1& unit' meansT
PC4.I

tive entity within the Indian Health S e w ''(1) an ice, or '(2) a tribe or tribal organization operating health care proor facilities with funds h r n the Service under the Indian e m t i o n A, & through which e c e s are provided, directly or by contract. to the e i i l Indian population within a defined geographic a e . . lgbe ra"

- -

Title II is amended by adding a t the end thereof the SEC. following new section:
''CAT-PUC
HlCALTA &MEBCENCY FUND

"SEC.202 (aX1) There is hereby established an Indian Catash.ophic Health Emergency Fund (hereafter in this section referred to as the ' u d )consisting ofFn' "(A) the amounts deposited under subsection (dl, and " B the amounts appropriated under subsection (e)( ) "(2) The Fund shall be admiaistered by the Secretaryy acting through the central a c e of the &Nice, solely for the purpose of meeting the extraordinary medical costs d t e d with the treatf ment o victims of dimstera or catastrophic illnetsea who are within the responsibity of theService"(3) The Fund shall not be allocated, apportioned, or delegated on a service u i , area office, or any other bas'm. nt ''(4) No part of the Fund or its W r a t i o n shall be subject to contract or grant under any law, including the Indian SelfDetermination Act. "b The Secretary shall, &ugh the promulgation of regulations () consistent with the provisions o this sectionf '(1) establish a defiaiton of disasters and catastrophic illnesses for which the cost of treatment provided under contract would qualify for payment h m the Fund; "() provide that a service unit ahall not be eligible for '2 reimbursement tor the d of treatment from the Fund until its oast of treating any victim of such catastrophic illness or d i e ter has reached a c r a n threshold oost which the Secretary eti shall establish at not less than $10,000 or not more than $20,000; ''(3) establish a procedure for the reimbursement of the portion of the costs incurred by-

25 USC 1621a.

Regulations-

526
Heinonline - - 102 Stat. 4 8 0 3 1988

Case 1:02-cv-01383-MMS

Document 60-39

Filed 05/02/2007

Page 7 of 7

102 STAT. 4828

PUBLIC LAW 100-713-NOV.

23, 1988

"2 Any descendant of an Indian who was residing in Califor() nia on June 1,1852,but only if such descendant"(A) is living in California, "(B) is a member of the Indian community served by a local program of the Service, and "(C) is regarded as an Indian by the community in which such dewendant lives. "(3) An Indian who holds trust interests in public domain, national &rest, or Indian reservation allotments in California. "(4) Any Indian in California who is listed on the plans for distribution of the assets of California rancherias and reservations under the Act of Auguet 1 . 1958 (72 Stat. 6 9 . and any 8 1) descendant of such an Indian. (c) Nothing in this w t i o n may be wn~ttuctrl expa_?rl;ngf-he n_a eligibility of California Indians for health services provided by the Service beyond the scop of eligibility for such health services that '. applied on May 1,1986.
6 '

CALIFORNIA AS A CONTBACT HEALTH SERVICE DELIVERY AREA

SEC.704. Section 710 (25 U.S.C. 1680) i amended t read as s o
follows:
"CALIFOSNIA A S A CONTRACT HEALTH SERVICE DELIVERY AREA

"SEC. 710. The State of California, excluding the counties of Alameda, Contra C s a Lw Angela, Marin, Orange. Sacramento, ot, San h c i s c o , San Mateo, Santa Clara, Kern, Merced, Monterey, Napa, San Benito, San Joaquin, San Luis Obiipo, Santa Cruz, Solano, Stanialam, and Ventura shall be designated as a contract health service delivery area by the Service for the purpose of providing contract health services to Indians in such State.".
CONTRAm HEALTH FACILITIES

SEC. 705. Title VII i amended by adding at the end thereof the s following new &ion:
"CONTBA~ HEALTH FACILITIES

25 usc 1680a.

"SEC. 711. The Service shall provide funds for health care programs and facilities operated by tribes and tribal organizations no under contracb with the Semce entered i t under the Indian SelfDetermination Act" 1 for the maintenance and repair of clinics owned or leased () by such tribes or tribal organizations, "(2) for employee training, "(3) for cost-of-living increases for employees, and "(4) for any other expenses relating to the provision of health services, on the same basis as such funds are yrovided to programs and facilities operated directly by the Service. '.
NATIONAL HEALTH SERVICE CORPS

SEC. 706. Title VII, as amended by section 705 of this Act. is further amended by adding at the end thereof the following new section:

527
Heinonline - - 102 Stat. 4828 1988