[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5437 Introduced in House (IH)]

<DOC>






114th CONGRESS
  2d Session
                                H. R. 5437

   To implement a mandatory random drug testing program for certain 
    employees of the Indian Health Service, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              June 9, 2016

  Mrs. Noem introduced the following bill; which was referred to the 
  Committee on Natural Resources, and in addition to the Committee on 
Energy and Commerce, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
   To implement a mandatory random drug testing program for certain 
    employees of the Indian Health Service, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Drug-Free Indian Health Service Act 
of 2016''.

SEC. 2. MANDATORY RANDOM DRUG TESTING OF CERTAIN EMPLOYEES OF INDIAN 
              HEALTH SERVICE.

    (a) Regulations.--
            (1) In general.--Not later than 90 days after the date of 
        the enactment of this Act, the Secretary shall promulgate such 
        regulations as are necessary to implement a mandatory random 
        drug testing program for covered employees of the Indian Health 
        Service. Except as otherwise provided for in this section, the 
        Secretary shall promulgate such regulations in accordance with 
        the--
                    (A) guidelines promulgated on November 25, 2008, 
                titled ``Mandatory Guidelines for Federal Workplace 
                Drug Testing'' (73 Fed. Reg. 71858); and
                    (B) regulations promulgated under section 264(c) of 
                the Health Insurance Portability and Accountability Act 
                of 1996 (42 U.S.C. 1320d-2 note).
            (2) Testing of certain drugs.--In carrying out the program 
        required under paragraph (1), the Secretary shall ensure that 
        each covered employee is tested not less than once per year for 
        each of the following drugs:
                    (A) Marijuana.
                    (B) Cocaine.
                    (C) Opiates.
                    (D) Amphetamines.
                    (E) Methamphetamine.
                    (F) Phencyclidine.
    (b) Notice of Mandatory Random Drug Testing Program.--Not less than 
90 days before implementing the program required under subsection (a), 
the Secretary shall provide written notice to all covered employees 
that--
            (1) a mandatory random drug testing program will be 
        implemented; and
            (2) covered employees will have the opportunity, and 
        reasonable time, to submit medical documentation of lawful use 
        of a drug listed under subsection (a)(2).
    (c) Notification of Selection.--The Secretary shall--
            (1) notify a covered employee selected for random drug 
        testing under this section on the same day, but prior to, such 
        testing; and
            (2) include in the notification an assurance that the 
        covered employee was selected randomly and is under no 
        suspicion of illegal drug use.
    (d) Deferral of Testing.--A covered employee selected for random 
drug testing under this section may obtain a deferral of testing if the 
covered employee is--
            (1) in a leave status; or
            (2) in official travel status away from the test site or 
        will embark on official travel that was scheduled prior to the 
        notification of selection under subsection (c).
    (e) Finding of Illegal Drug Use and Disciplinary Consequences.--
            (1) Finding of illegal drug use.--The Secretary may 
        determine that a covered employee has engaged in illegal drug 
        use based on any of the following:
                    (A) A verified positive test result from a specimen 
                submitted by the covered employee.
                    (B) Direct observation by a higher-level 
                supervisor, including observed illegal drug use and the 
                unlawful possession of a drug listed under subsection 
                (a)(2).
                    (C) Evidence obtained from an arrest or criminal 
                conviction of the covered employee.
                    (D) The voluntary admission of the covered 
                employee.
            (2) Mandatory administrative action.--
                    (A) In general.--If a covered employee is found to 
                have engaged in illegal drug use under paragraph (1), 
                the Secretary shall--
                            (i) prohibit the covered employee from 
                        performing any activity related to providing 
                        health care or administrative services to 
                        patients; and
                            (ii) refer such employee to the Employee 
                        Assistance Program of the Department of Health 
                        and Human Services.
                    (B) Return to duty.--At the discretion of the 
                Secretary, a covered employee may return to performing 
                activities related to providing health care or 
                administrative services to patients after obtaining 
                counseling or rehabilitation through the Employee 
                Assistance Program.
            (3) Adverse actions.--
                    (A) In general.--Subject to subsection (g), in 
                addition to carrying out the required actions under 
                paragraph (2), the Secretary may initiate an adverse 
                action, including removal, against a covered employee 
                who is found to have engaged in illegal drug use under 
                paragraph (1).
                    (B) Voluntary admission exception.--The Secretary 
                may not initiate an adverse action under subparagraph 
                (A) against a covered employee who--
                            (i) voluntarily admits to illegal drug use;
                            (ii) ceases such illegal drug use; and
                            (iii) obtains counseling or rehabilitation 
                        through the Employee Assistance Program.
    (f) Refusal To Submit to Random Drug Testing and Disciplinary 
Consequences.--If a covered employee refuses to submit to random drug 
testing under this section when so required, the Secretary--
            (1) shall prohibit the covered employee from performing any 
        activity related to providing health care or administrative 
        services to patients; and
            (2) subject to subsection (g), may initiate an adverse 
        action, including removal, against such employee.
    (g) Due Process.--In carrying out an adverse action under this 
section against a covered employee, the Secretary shall provide the 
covered employee with notice and an opportunity to respond.
    (h) Appeals.--A covered employee subject to an administrative or 
adverse action under this section may appeal such action to the Merit 
Systems Protection Board under section 7701 of title 5, United States 
Code.
    (i) No Additional Funds.--No additional funds are authorized to be 
appropriated for the purpose of carrying out this section. This section 
shall be carried out using amounts otherwise available for such 
purpose.
    (j) Definitions.--For purposes of this section:
            (1) Covered employee.--The term ``covered employee''--
                    (A) means an individual who--
                            (i) is employed in a part-time or full-time 
                        position at a health care facility of the 
                        Indian Health Service (excluding tribal 
                        contract or compact health centers and urban 
                        Indian health centers); and
                            (ii) provides health care or administrative 
                        services to patients at such health care 
                        facility; and
                    (B) does not include officers of the Commissioned 
                Corps of the United States Public Health Service.
            (2) Employee assistance program.--The term ``Employee 
        Assistance Program'' means the Employee Assistance Program of 
        the Department of Health and Human Services.
            (3) Illegal drug use.--The term ``illegal drug use'' means 
        the unlawful use of a drug listed under subsection (a)(2) by a 
        covered employee.
            (4) Random drug testing.--The term ``random drug testing'' 
        means drug testing that is imposed on a covered employee 
        without individualized suspicion that such employee is 
        engaging, or has engaged, in illegal drug use.
            (5) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services, acting through the Director of 
        the Indian Health Service.
            (6) Specimen.--The term ``specimen'' means urine collected 
        from a covered employee for the purpose of random drug testing 
        under this section.
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