[Senate Hearing 110-53]
[From the U.S. Government Publishing Office]
S. Hrg. 110-53
INDIAN HEALTH CARE IMPROVEMENT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
INDIAN HEALTH CARE IMPROVEMENT ACT
__________
MARCH 8, 2007
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
33-962 PDF WASHINGTON : 2007
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
CRAIG THOMAS, Wyoming Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota PETE V. DOMENICI, New Mexico
DANIEL K. AKAKA, Hawaii GORDON SMITH, Oregon
TIM JOHNSON, South Dakota LISA MURKOWSKI, Alaska
MARIA CANTWELL, Washington RICHARD BURR, North Carolina
CLAIRE McCASKILL, Missouri TOM COBURN, M.D., Oklahoma
JON TESTER, Montana
Sara G. Garland, Majority Staff Director
David A. Mullon Jr. Minority Staff Director
(ii)
C O N T E N T S
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Page
Statements:
Agwunobi, John, assistant secretary for health, Department of
Health and Human Services.................................. 4
Beckner, III, C. Frederick, deputy assistant attorney
general, Department of Justice............................. 6
Brannan, Richard, chairman, Northern Arapaho Business Council 21
Coburn, Hon. Tom, U.S. Senator from Oklahoma................. 2
Dorgan, Hon. Byron L., U.S. Sentor from North Dakota,
chairman, Committee on Indian Affairs...................... 1
Gage, Steve, director, Community Health Aide Program,
Southeast Alaska Regional Health Consortium................ 29
Grim, Charles W., director, IHS, Department of Health and
Human Services............................................. 4
Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 8
Joseph, Rachel A., cochair, National Steering Committee on
the Reauthorization of the Indian Health Care Improvement
Act........................................................ 24
Lazarus, Edward P., partner, Akin, Gump, Strauss, Hauer, and
Feld, LLP.................................................. 27
Murkowski, Hon. Lisa, U.S. Senator from Alaska............... 18
Tester, Hon. Jon, U.S. Senator from Montana.................. 9
Thomas, Hon. Craig, U.S. Senator from Wyoming, vice chairman,
Committee on Indian Affairs................................ 4
Appendix
Prepared statements:
Agwunobi, John............................................... 37
Beckner, III, C. Frederick................................... 40
Brannan, Richard............................................. 47
Bursell, Sven-Erik, Joslin Diabetes Center................... 51
Gage, Steve (with attachment)................................ 54
Gerald, Forrest J., enrolled member, Blackfeet Tribe......... 63
Hunter, Terry L., executive officer, Oklahoma City Indian
Clinic..................................................... 43
Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 45
Joseph, Rachel A............................................. 68
Lazarus, Edward P............................................ 81
McCloud, Duke................................................ 101
Tester, Hon. Jon, U.S. Senator from Montana.................. 45
Additional material submitted for the record:
Greendeer, Samantha, legislative counsel, Ho-Chunk Nation
recommendation............................................. 108
INDIAN HEALTH CARE IMPROVEMENTS ACT
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THURSDAY, MARCH 8, 2007
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:32 a.m. in room
485, Russell Senate Office Building, Hon. Byron L. Dorgan
(chairman of the committee) presiding.
Present: Senators Dorgan, Coburn, Inouye, Murkowski,
Tester, and Thomas.
STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH
DAKOTA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. We will call the hearing to order.
This is a hearing of the Senate Committee on Indian Affairs
dealing with the Indian Health Care Improvement Act. I would
like to make just a couple of brief opening comments.
First, the U.S. Senate has now approved, after 2 long
years, a new assistant secretary for Indian Affairs in the
Department of the Interior. I have said previously that it is
shameful that position was open for 2 full years. This is the
position that has responsibility for the management of the
Indian programs. It has been a position that has been around
since I believe 1806, and for 2 full years it was unfilled. It
is unbelievable to me.
We finally now have approved the President's nominee,
someone I supported last year, someone I supported this year. I
pushed very hard to force a vote in the U.S. Senate. What we
have discovered from the vote is that one U.S. Senator had held
that up, one. Senators have certain rights, but it seems to me
to have been exercised at the expense of American Indians and
Indian programs. I regret that, but nonetheless, that is done.
Second, this issue of Indian health care is a very
important issue. We had people at that table just recently
describe to us the health care issues, the difficulties, a
doctor describing a patient coming to him that had been to the
Indian Health Service with a knee that had a very serious torn
ligament, and was told to wrap it in cabbage leaves for 4 days
and come back. The stories are unbelievable.
Look, we have a serious problem in Indian health care. We
have tried very hard to reauthorize the Indian Health Care
Improvement Act, and I can't tell you how frustrated I am and
how frustrated Senator McCain was in the last Congress when
every single time we would try to move this, we would have an
objection from somewhere, sometimes in HHS, sometimes in
Justice. No matter what we did, there was always another
objection, and this never moved.
This time it is going to move. People can object if they
want. They can vote against it if they want, but we are not
going to spend 24 months trying to figure out where HHS is,
where the Justice Department is, where their next urge or hits
might come from. I want consultation. I want to hear your
thoughts. I am very pleased you are here today, I say to
Justice and HHS, but I want to work with members of this
committee and my vice chairman and pass a reauthorization of
the Indian Health Care Improvement Act at long, long last, an
Improvement Act that we can improve even further in this
session of the Congress.
I just want to start by saying I sound a little crabby
about this. I am crabby about this. I am upset after 2 full
years. Every single time we would make a proposal, there was
another objection. And it never moved. This time it is going to
move, one way or the other. We are going to be voting on the
proposal on the floor of the Senate.
I say to the Justice Department, Health and Human Services,
the Administration, all of my colleagues, let's all cooperate,
provide input. We want to hear from everybody, to provide the
best product we can, develop the best product we can, and then
I am going to push it because I think it is long, long overdue.
We have a bona fide crisis in Indian health care. I won't
recite the statistics or I won't recite the anecdotes today,
but I can if necessary.
I really appreciate my colleague, Vice Chairman Thomas,
here; my colleague Dr. Coburn. My understanding is Dr. Coburn
has a couple of other committee markups and assignments that
are meeting this morning, so I will call on the vice chairman,
unless he wishes to relinquish.
Let me then call on Dr. Coburn for an opening statement so
that he can then depart.
STATEMENT OF HON. TOM COBURN, M.D., U.S. SENATOR FROM OKLAHOMA
Senator Coburn. Thank you.
I would like unanimous consent that a full opening
statement by me be added to the record.
I just want to make some comments. I was one of the ones
holding the Indian Health Care bill. To modify in a very small
way, without significant improvements, Indian health care is a
violation of our duty. What we have today is not tolerable, but
to not fix it right is absolutely intolerable. When we tell
people more of the status quo, where people will not get the
care they need, and not to have a major, and I am talking major
reorganization of the way we deliver health care to the tribal
citizens in this Country, that gives flexibility, opportunity
and choice, that puts them on a par with everybody else in this
Country, rather than to give them second and third tier care, I
will continue to hope.
So I look forward to working with the Chairman, but the
tribal citizens of this country deserve at least as equal a
health care as everybody else in this Country. I intend to
offer amendments to give them the option, if they don't have
available care, to use their rights as tribal citizens to get
care at any Medicare-approved facility in this Country. If in
fact we have an obligation, then we have an obligation to make
sure they have the exact same level of care as they can get
anywhere else.
I would put forward, we have the Chickasaw Nation in
Oklahoma. They are trying to develop health care. They have
been stymied in every way as they develop this new hospital and
health care center, to tell them what they can't do, when they
are trying to do and give and offer better care for their
tribal citizens, because they have some resources. And then we
take away resources that the Government offers saying you can't
do it that way.
We have to build in flexibility in any reauthorization, and
we have to make sure that our goal is at least equal health
care for what everybody else in this Country is getting.
Anything less than that is a violation of our good faith trust
to the tribal citizens of this Country. I pledge to you, Mr.
Chairman and Mr. Vice Chairman, that I will do everything in my
power to do that.
I am introducing a Global Health Care bill next week to
reform health care all the way across this Country, that gives
access to everyone in this Country, everyone, so that no one is
denied care, but that care has to be quality care, and we can't
call it ``care'' if it is not quality care. We do great
injustice not only to this institution, but under our duties of
the treaties that we are faced with, if we give less than great
quality care to tribal members.
I thank you for the time.
[Prepared statement of Senator Coburn appears in appendix.]
The Chairman. Let me be clear, you have not been the one
holding up the assistant secretary for Indian Affairs. You were
not. One Senator did that, regrettably. In my judgment, you
didn't hold up anything in the last session on Indian health
care because what happened in the last session on the Indian
Health Care Improvement Act, month after month after month, we
would get new objections and new objections from HHS and from
Justice. You just couldn't solve the issues.
So I will commit this to you. We are going to write this
bill, introduce it. You are going to have a significant role in
providing input. You are a doctor. You have a great deal of
experience in these areas. We can provide a bill that doesn't
advance the status quo. I have very little interest in
advancing the status quo of a system that is not working as
well as it should.
These folks represent the Administration. They have asked
for a certain amount of money. You might say the issue isn't
money. It is not completely money, but you have to have the
funds to provide for health care. When a woman is brought in on
a gurney with a piece of paper taped to her leg, and she is
having a heart attack, and the piece of paper says:
By the way, hospital, if you admit this person, understand
that Contract Health Care is gone. This is not life and limb
and you may not be paid for this.
I am just saying, I think that sort of thing is shameful.
We need to provide whatever funding is necessary.
I am anxious to have your input because you know a lot
about this. We are going to work on a bill, get a good bill,
one that we can be proud of, and then we are going to push like
the dickens to get it done finally at long, long last.
Senator Coburn. You have my commitment to work with you.
The Chairman. Senator Thomas.
STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING, VICE
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Thomas. Thank you very much, Mr. Chairman, and
thank you for being here.
I am delighted that we are having this hearing. I think we
do need to take a look and make sure we advance this
legislation, incorporating the best practices that we can. I
think we have to work with other committees. There is divided
jurisdiction over this thing.
I do need to say, however, at least from our experience,
Indian health care has not been all that bad. In our
communities, we are looking at a community health center, for
example, between the local community and the tribes. The tribal
people have gone to the other community to sek ways for
improvements.
So we need to make sure we do the best that we can, but I
hope we are not overly critical of what we have had. At least
in our community, it has been pretty good health care. We need
to make sure it continues to stay that way. So I get a little
taken away with being terribly negative about it.
At any rate, I look forward to the witnesses and their
testimony. We ought to get this bill out of here and get it in
good shape.
Thank you.
The Chairman. Senator Thomas, thank you very much.
The first panel is Dr. John Agwunobi, who is the assistant
secretary for Health at the Department of Health and Human
Services. He is accompanied by Dr. Charles Grim, the director
of the Indian Health Service at HHS. We also have Frederick
Beckner, III, deputy assistant attorney general, Department of
Justice.
Let's start with you, Dr. Agwunobi. Thank you for helping
me pronounce your name before this hearing started.
STATEMENT OF JOHN O. AGWUNOBI, ASSISTANT SECRETARY FOR HEALTH,
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ACCOMPANIED BY CHARLES
W. GRIM, DIRECTOR, INDIAN HEALTH SERVICE
Mr. Agwunobi. Thank you, sir. I think I was 12 years old
before I could pronounce it as well as you just did.
[Laughter.]
Thank you.
Good morning, Chairman Dorgan and distinguished members. My
name is John Agwunobi and I am the assistant secretary for
Health for the Department of Health and Human Services. As the
assistant secretary, I serve as the Secretary's primary adviser
on matters involving the Nation's public health. I oversee the
Public Health Service, of which Indian Health is one of those
agencies.
I am joined by Dr. Chuck Grim. He is a personal friend and
a great leader. He is also the director of the Indian Health
Service.
I am honored to testify before you today on the important
issue of the reauthorization of the Indian Health Care
Improvement Act. The Department's mission is to uphold the
Federal Government's responsibility to promote healthy American
Indian and Alaska Native people, communities and cultures, and
to honor and protect the inherent sovereign rights of the
tribes that we work with.
We are committed to working in partnership with tribes to
improve the health of Indian people and to eliminate health
disparities through health promotion, disease prevention,
behavioral health, and chronic disease management.
The Indian Health Service is the principal Federal health
care provider to the American Indian and Alaska Native peoples.
As part of the Federal Government's special relationship with
tribal governments, IHS provides health care to 1.8 million
members of the more than 560 federally recognized tribes. The
Indian Health Care Improvement Act forms the backbone of the
system through which Federal health programs serve and
encourage participation of eligible American Indians and Alaska
Natives.
Since the enactment of the law in 1976, statutory authority
has substantially expanded programs and activities to keep pace
with changes in health care services and administration.
Federal funding has contributed billions of dollars to these
efforts over the years.
We are happy to see that this has led to significant
achievements in improving Indian health. From 1973-2002, infant
mortality among American Indian and Alaska Natives decreased 60
percent. Tuberculosis deaths over the same period of time
dropped 80 percent. And many other categories of mortality such
as pneumonia, influenza, cervical cancer, and cardiovascular
illness have all decreased.
However, I don't want to imply that we don't still face
significant challenges, because we do. In this position, the
position of assistant secretary for health, I have had the
honor of traveling with Chuck and others on his team to tribal
country, and quite frankly, it was a humbling experience for
me. I met with tribal leaders and others in those communities.
I now have first-hand understanding of the problems they face,
we face.
Major disparities in health status and health outcomes
continue. Death from diabetes, alcoholism, and injuries occur
in far greater numbers than in other populations. We have an
obligation to address these very serious health challenges.
That is why the President's budget demonstrates a commitment to
address the priorities identified by tribes through our annual
budget consultation process with increases in funding. That is
why the Department strongly supports reauthorization of the
Indian Health Care Improvement Act at the soonest possible
opportunity.
We have worked closely with this committee in the past, and
we have made progress in moving toward legislation that the
Department can support. We appreciate that Congress has
responded to many of the Department's concerns, especially
those related to secretarial management authority.
Last year's bill continued to contain certain provisions
which may have negatively impacted our ability to provide
needed access to services. Such provisions established program
mandates and burdensome requirements that might have diverted
resources from important services.
However, we are confident that we can work with this
Congress to continue to address these concerns, and agree on
legislation that will live up to our mission to raise the
health of American Indians and Alaska Natives to the highest
level.
Once again, sir, I appreciate this opportunity to appear
before you to discuss reauthorization of the Indian Health Care
Improvement Act, which we support. I will answer any question
that you may have at this time.
I thank you, sir.
[Prepared statement of Dr. Agwunobi appears in appendix.]
The Chairman. Dr. Agwunobi, thank you very much.
Dr. Grim, do you have testimony?
Mr. Grim. No, sir.
The Chairman. Okay, you will be available to answer
questions as well.
Mr. Beckner, thank you very much for being here. I think it
is the first time we have had someone from the Department of
Justice testifying on this matter. We have asked you to be here
specifically because we have had rather repeated and routine
objections. Maybe I shouldn't characterize them as routine. We
have had repeated objections as we have moved along trying to
write this legislation from the Justice Department, and we
wanted to have testimony from the Justice Department this
morning. We appreciate very much your being here. You are the
deputy assistant attorney general.
STATEMENT OF C. FREDERICK BECKNER, III, DEPUTY ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
Mr. Beckner. Thank you, Mr. Chairman, and good morning.
As you mentioned, I am the assistant deputy assistant
attorney general for the civil division of the Department of
Justice. Thank you very much for the opportunity to share the
views of the Department of Justice on the reauthorization of
the Indian Health Care Improvement Act.
As of today, the Department of Justice has not had the
opportunity to fully review the current version of the proposed
legislation. We are not therefore in a position to provide
specific comments on this legislation.
That said, the Department strongly supports the laudable
objectives of improving Indian health care for American Indians
and Alaska Natives. The Department looks forward to continuing
to work with the committee to achieve these goals. The
Department worked extensively with the committee and met with
representatives of the American Indian community on a prior
version of this legislation. We expect that this cooperative
relationship will continue as the Department reviews the
current legislation.
In commenting on the prior legislation, the Department
identified targeted concerns that could be, and for the most
part were in fact, addressed with relatively modest changes to
the legislation, but did not detract from the overall goal of
improving health care for American Indians and Alaska Natives.
For example, in an earlier version of the proposed
legislation, the Department of Health and Human Services and
Indian tribes could enter into self-determination contracts
that covered tribal traditional health care practices. Such
practices are unique to American Indian tribes and cannot be
evaluated by established standards of medical care recognized
by State law.
The Department was concerned that if a party sued the
United States under the Federal Tort Claims Act for an injury
allegedly caused by a traditional health care practice, the
Department might not be able to meaningfully defend the case,
and particularly the Department was concerned that the courts
might incorrectly, in the Department's view, conclude a viable
cause of action exists under the FTCA because traditional
tribal practitioners are providing medical services and that
these services do not comply with standards of the relevant
State's medical community.
Consequently, we met with representatives of the American
Indian community and worked extensively with the committee late
last year to add language that would have clarified that the
United States and ultimately the taxpayers would not be liable
for malpractice claims under the FTCA arising out of the
provision of traditional health care practices. This language
would not have impacted other tort suits that could be brought
against the United States for other services provided under
self-determination contracts.
The Department also expressed its concern regarding a
provision that would have extended FTCA coverage to persons who
are providing home-based or community-based services. These
services are sometimes provided by relatives and in many
instances there are no established standards for such lay
person care or for the environment in which they are provided.
To address these concerns, the Department worked with committee
staff on language that would have clarified that home-based or
community-based services that can be provided under self-
determination contracts are those for which the Secretary of
the Department of Health and Human Services had developed
meaningful standards of care.
Similarly, the Department expressed concerns in previous
versions of the bill regarding the possibility of unlicensed
individuals providing mental health treatment to American
Indians and Alaska Natives. In a previous version of the bill,
the Department worked with the committee to add language that
would have ensured a licensing requirement for providing mental
health services, and we believe the change was in the interests
of both the United States and the Indian community.
Finally, the Department noted its concern that previously
proposed legislation may raise a constitutional issue. We had
previously attempted to work with the committee to address this
concern, but unfortunately resolution was not attained. Most of
the programs authorized by the current law or that would have
been authorized by the previously proposed legislation tie the
provision of benefits to membership in a federally recognized
Indian tribe, and courts therefore likely would uphold them as
constitutional. The Supreme Court has held that classifications
based on membership in a federally recognized tribe are
political, rather than racial, and therefore would be upheld as
long as there is a rational basis for them.
Congress may also have limited authority to provide
benefits that extend beyond members of federally recognized
tribes, to individuals such as spouses and dependent children
of tribal members, who are recognized by the tribal entity as
having a clear and close relationship with the tribal entity.
To the extent, however, that programs benefiting urban
Indians under current law or in the prior version of the bill
could be viewed as authorizing the award of grants for other
governmental benefits on the basis of racial or ethnic
criteria, rather than tribal affiliation, these programs would
be subject to strict scrutiny under the Supreme Court's equal
protection jurisprudence.
For example, the statute in the previous reauthorization
bill broadly defined ``urban Indian'' to include individuals
who are not necessarily affiliated with a federally recognized
Indian tribe, including descendants in the first or second
degree of a tribal member, members of a State recognized tribe,
and any individual who is an Eskimo, Aleut, or other Alaska
Native. There is a likelihood that legislation providing
special benefits to such individuals might be regarded by the
courts as a racial classification subject to strict scrutiny,
rather than a political classification subject to rational
basis review.
This distinction is important because if the legislation
awards Government benefits on grounds that trigger strict
scrutiny, courts may uphold the legislation as constitutional
only upon a showing that its use of race-based criteria to
award the subject benefits is narrowly tailored to serve a
compelling governmental interest.
In closing, the Department believes that any proposed
legislation regarding Indian health care is important and
significant. We are grateful for the opportunity to share our
views with the Committee. As we have in the past, we look
forward to working with the Committee on this important piece
of legislation.
[Prepared statement of Mr. Beckner appears in appendix.]
The Chairman. Mr. Beckner, thank you very much.
We have been joined by Senator Inouye, who has for many
years previously been chairman and ranking member of this
committee. Senator Inouye, welcome.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII
Senator Inouye. Thank you very much. I am sorry I am late.
The usual thing happened, a motorcycle collided with a bus.
The programs and services covered by the measure before us
are based upon a government-to-government relationship that
Presidents Nixon, Bush, Carter, Reagan, Clinton, and the
present Bush have all consistently reaffirmed as a Federal
Indian policy of our Country.
Furthermore, the U.S. Constitution recognizes tribal
governments as sovereign governments. In article I, section 8,
clause 3, the Congress is vested with the authority to conduct
relations with the several States, foreign nations, and Indian
tribes.
Therefore, this bill should not be viewed as race-based,
but rather legislation by which Congress is exercising its
authority to address deficient health care conditions in Indian
country. Therefore, I commend my colleagues, and particularly
the chairman, Chairman Dorgan, for holding this hearing on this
bill that provides crucial health care programs and services to
Indian country.
Mr. Chairman, may I ask that my full statement be made part
of the record.
The Chairman. Without objection, Senator Inouye.
[Prepared statement of Senator Inouye appears in appendix.]
The Chairman. Thanks for your comments and your long
experience on this committee.
Senator Tester, welcome.
STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM MONTANA
Senator Tester. Yes; thank you, Mr. Chairman. I also want
to thank you for having this hearing. I would just ask
unanimous consent that my remarks be added to the record. I
have them here, but we might as well proceed.
Sorry for being late, but I have to leave early, too, to
sorry about it on both counts. Thank you.
The Chairman. Thank you very much.
[Prepared statement of Senator Tester appears in appendix.]
The Chairman. Let me ask a couple of questions of Mr.
Agwunobi and Dr. Grim. It relates in some measure to what my
colleague, Senator Thomas, was observing.
Look, there are areas, I think, of unbelievable care, for
which I am deeply indebted. I have great admiration when I go
to clinics in various places and see folks in the Indian Health
Service and the Public Health Service working, often for less
money than they could make elsewhere, very dedicated to their
service.
Yet, my observation is that we are woefully short of that
which is necessary. Let me give you an example, and see if you
agree, Dr. Agwunobi. I will give you an example of one tribe.
It applies to every tribe I visited. A young girl hangs
herself, aged 14. She lies in bed in a fetal position for 90
days before she hangs herself and commits suicide. She misses
school, the whole thing. Her sister had committed suicide 2
years before. Her father had taken his life 6 years before. Her
mother was drug-dependent. So this young girl just falls out of
the view of people and lies in bed for 90 days, misses school,
and finally takes her own life.
I went to the reservation. Her name was Avis Little Wind. I
say her name with the consent of the remaining family. I went
to the reservation and talked to the tribal leaders, talked to
the school officials, talked to her extended family. What I
found is exactly what I found elsewhere. There wasn't a ghost
of a chance of this young girl getting the psychological help
she needed. There wasn't even a car to drive her to a clinic
had there been a clinic that provided the professional
resources. They would have to beg and borrow a car to get Avis
to a clinic. It wouldn't matter to get her to a clinic, they
didn't have the capability.
And that is true. You know, you talk about improvements,
Indian kids have 10 times the rate of suicide of the national
average in the northern Great Plains; a 600 percent higher
tuberculosis rate; 500 percent higher alcoholism rate; and so
on.
So my point is, maybe we have made improvement in some
areas. Some of the discussion about diabetes, I am heartened by
some of the research and some of the treatment. But I just
think we have a huge hill to climb here to address these
unbelievable problems. And the victims, kids like Avis Little
Wind, who felt hopeless and helpless and took her life, their
memories cry out for us to do something. Senator Coburn said
it, let's just not do something and say it is good enough.
Let's do something that works.
You talked about improvements, and I don't want to
denigrate improvements at all, and don't want to denigrate the
people that work for the IHS and public health, but boy, I tell
you, I get so depressed sometimes when I see the lack of
services. Tell me your impression of that.
Mr. Agwunobi. Sir, I have been on the job now for about
1\1/2\ years. Very early on in that tenure, Admiral Grim
reached out to me and he said, John, let me show you something.
You are a public health worker. You have worked at the State
level for years, but I want to show you something you have not
seen.
He sent me out to I believe it was the Crow Nation, just
south of Billings, MT. The tragedy of the story that you
describe, sir, and it is a tragedy as an individual case, but
the real tragedy is that it is not uncommon. The stories that I
heard when I visited the tribal nation there and the stories
that I have heard from tribal leaders since then would say it
is actually fairly common.
So I concur completely. The Administration concurs
completely. I have been sent today not only to support Chuck,
but to be a symbol of our commitment, our recognition of the
fact that we have to do this now. My job, as the public health
service coordinator, is to make sure that within our
Department, across the different agencies, that we get it done
and we get it done quickly.
I am going to be working between the scenes, working in the
background to support Admiral Grim, to support you, sir, and
this Committee in trying to get this bill reauthorized.
The Chairman. Could I ask, my understanding is that for
every 100,000 American Indians, there are about 90 doctors. For
every 100,000 Americans, there are about 239 doctors. It is
about 2 to 1. Is that a close approximation, Dr. Grim?
Mr. Agwunobi. Admiral Grim whispered to me that it is
correct, but I will let him say it louder so everyone can hear.
Mr. Grim. Yes, sir; those statistics are correct.
The Chairman. Does that statistic have any relevance at all
with respect to a potential level of care, the potential to
receive the kind of treatment one needs?
Mr. Grim. One would assume that it does. One of the things
that we are trying to do new, though, that I would like to
mention to you, is that we are working with an internationally
renowned institute called the Institute for Health Care
Improvement to try to develop a new model of care around the
management of chronic diseases. That includes behavioral health
sorts of diseases, integrating behavioral health, the kind of
care that Avis could have used, into our primary care delivery
system. We have 14 pilot sites under test right now. We are
manipulating an evidence-based tested model so that it will
work in our system. So we are trying to work smarter and more
efficiently, too, within the limited resources that we do have.
The Chairman. And we have been working, as you know, on the
telemental health side as well to address it.
Let me ask you one other quick question, and then I am
going to ask Mr. Beckner a question, then turn it over to the
vice chairman.
You know I am interested in the issue of a new medical
model of convenient care on Indian reservations. I know of one
reservation, they have a fine clinic. It is old and it
obviously is not up to date, but the people there are great.
They are trying as hard as they can. But I think it is 9
o'clock to 5 o'clock. It closes at 5 o'clock on Friday. This is
a remote reservation. If at 6 o'clock on Friday night you have
a problem, you are in trouble. You are going to have to go
about 90 miles.
My hope is that we can develop a new model of convenient
care, using physician assistants and nurse practitioners, you
know, convenient hours, long hours, 7 days a week in some of
these walk-in clinics on reservations, because they are so
remote.
Are you interested in working with me and the committee to
see if we can find a way to do that?
Mr. Grim. Very much. I think a lot of the ideas you have
are important and very valid. Some of our locations where the
staffing allows, we do have extended hours and the patients
have proven to like that very much. So the Administration wants
to work closely with you on it. We have a lot of new models of
health care we are testing. We are excited about your additions
of telehealth for psychiatry and things like that. You are
going to hear a little bit about in the next panel about the
use of telemedicine with our Community Health Aid Program up in
Alaska.
We are very interested in showing you innovative models
that we are already using internally, plus talk about models
that we aren't right now that the committee would like to
discuss.
The Chairman. Thank you, Dr. Grim.
Mr. Agwunobi, what you have said today gives me some heart
because you say you want to work through the crevices and the
cracks, and try to form some joints here between all of the
agencies to find a way for us to improve things and get things
done. So you can be sure that we, the minority and the majority
on this committee, want to work with you and work with you very
closely, along with Dr. Grim, and see if we can make some
significant progress.
Mr. Beckner, very quickly, as you know, there are legal
discussions about this issue of the constitutional issues that
you raised today. I don't dismiss them and don't suggest they
are not without some interest to us and concern to us, but we
need to find a way to address them. I have been frustrated in
the way the Justice Department has connected to the committee.
I hope that we can work with you the same way that Dr.
Agwunobi has committed to work with us. Let's find a way to
address these and solve them, and perhaps we will even in the
end disagree, but at least we will have had a good exchange and
then we can put a bill together and proceed, even knowing what
the disagreement might be.
Would you be willing to work with us on that basis? I don't
want to wait until October or November or December of this
year. I want to put this together and begin moving the
legislation.
Mr. Beckner. I can answer that question in one word: Yes,
we would be happy and delighted to work with the committee. In
fact, we worked extensively with the committee last year and
addressed all our liability concerns, and did not oppose
passage of S. 4122. Our liability concerns were addressed in S.
4122 and we did not oppose passage of that legislation. We look
forward to working just as cooperatively with this committee on
the next version of the bill.
The Chairman. All right. I am going to send you some
written questions, with your permission, and would ask both to
be available.
Senator Thomas.
Senator Thomas. Thank you, Mr. Chairman.
Doctor, you in your comments talked a little bit about
rulemaking as time consuming. However, isn't it true that
negotiated rulemaking can result in probably better results
than having to go to court and so on?
mr. Agwunobi. Sir, there are obvious advantages to
negotiated rulemaking in many settings. Our concern relates to
any language that would constrain the Secretary from his
ability to reach out to tribes in direct conversation and
direct consultation, and to meet needs as they arise over time.
Senator Thomas. All right. You talk about the flexibility
for the Secretary to do that. The tribes also should be
afforded flexibility, don't you agree with that?
Mr. Agwunobi. Yes; I would concur.
Senator Thomas. What is the involvement with tribal members
or Indians on Medicare and Medicaid?
Mr. Grim. The Department has established in the last couple
of years a group called the Tribal Technical Advisory Group.
CMS established that in consultation with tribal leadership.
There are representatives from each region, each Indian Health
Service region of the Country, and then also from several of
the major tribal groups that comprise tribal leaders. CMS holds
regular meetings with them to discuss policy issues.
Senator Thomas. I am talking about what percentage of the
tribal members actually are signed up to involve themselves in
part D of Medicare?
Mr. Grim. I don't have those numbers off the top of my
head, Senator, but we do have numbers of how many tribal
members we have signed up under the new Medicare part D
legislation, and we can provide that to you for the record.
Senator Thomas. Do you encourage that? Why wouldn't you?
Mr. Grim. Yes, sir.
Senator Thomas. I understand, where you have tribes that
are a long ways away, but the tribes I represent, for instance,
are right outside the town, and they can participate fully,
can't they, in these other programs?
Mr. Grim. Yes, sir; we are encouraging that. All of our
patients' benefits coordinators have been trained on how to
educate and get people enrolled in Medicare part D. We played a
large part in the Department in both supporting that and trying
to get our members enrolled in that. We are very supportive of
it.
Senator Thomas. I am obviously very much for an Indian
Health Program because it has unique aspects, but on the other
hand I think we ought to recognize that these folks are
eligible to participate in the same program that you and I are.
Mr. Grim. Yes, sir; we sign them up for Medicare and
Medicaid, if they have private insurance. And that is one of
the things that we pointed out to Senator Dorgan and some of
his questioning in the past is that we try to use all those
alternate resources before we use our contract health services
budget to pay for things.
Senator Thomas. I guess that is particularly true about the
detailed kinds of unique treatments.
Mr. Grim. Yes, sir; especially for a lot of specialty care
that we can't provide in our setting.
Senator Thomas. Specialty care and so on you are not going
to provide. I think we need to recognize that and get this
combination of things going as well.
Mr. Beckner, I guess I am a little surprised you say you
have not had a chance to look at the bill. You have people to
do that, don't you?
Mr. Beckner. Yes; we do have people to look at the bill,
but I don't believe they have been provided the current version
fo the bill.
Senator Thomas. But it is generally not too much different
than it has been and so on.
Mr. Beckner. Then we look forward to working with you. If
it is not too much different, we would expect our concerns to
be pretty narrow or possibly already resolved.
Senator Thomas. That is really how it kept from happening
last time, wasn't it, the concerns that the Department had and
so on?
Mr. Beckner. Kept what from happening, Senator?
Senator Thomas. Kept us from passing the bill.
Mr. Beckner. I don't believe so, Senator. Our concerns were
resolved with S. 4122, and we did not oppose passage of S.
4122. We did not object to it. Our liability concerns were
resolved and we did not object to its passage.
Senator Thomas. Okay, good.
If State law doesn't impose medical malpractice liability,
how would the United States be liable?
Mr. Beckner. Are you referring to traditional tribal
healing practices?
Senator Thomas. Yes.
Mr. Beckner. If there is no cause of action for malpractice
for tribal healing practices, then the United States could not
be held liable for those practices.
Senator Thomas. Okay.
Mr. Beckner. We believe that is the better reading of the
law today, and we were seeking just clarification in the passed
Act that that was the case.
Senator Thomas. You referred in your written testimony to
medical community standards. What is that?
Mr. Beckner. Well, ordinarily in an ordinary medical
malpractice case, the way that they are resolved is by looking
at how medicine is practiced in the prevailing medical
community. Under State law, that is ordinary State medical
practitioners. So if you had an open heart surgery and
something went wrong, they would look to how the ordinary
standard of care that was provided by the medical licensed open
heart practitioners, and judge whether the care you received
was deficient relative to that standard.
Senator Thomas. I see. Well, the Department dropped their
objections at the very last minute, so we are going to have a
little different arrangement this time, do you think?
Mr. Beckner. Dropped our objection to what?
Senator Thomas. To the bill last year. That is the reason
why it didn't pass.
Mr. Beckner. We are prepared to work very cooperatively and
I would hope that we would be able to resolve any issues we
have with the current version of the bill readily and as
quickly as possible.
Senator Thomas. Good. Have there been any medical
malpractice lawsuits arising from traditional health care
practices?
Mr. Beckner. Have there been any?
Senator Thomas. Yes.
Mr. Beckner. Not that I am aware of, sir.
Senator Thomas. Okay.
Thank you, Mr. Chairman.
The Chairman. Senator Tester.
Senator Tester. Thank you, Mr. Chairman.
As I have been fairly active getting around the State of
Montana the last couple of years, there are all sorts of
stories out there dealing with health care from the non-Indian
population. And then you walk onto Indian Country and those
horrors are compounded tenfold. I appreciate the fact that you
visited the Crow Reservation. I think it is fair to say most of
the tribes in the northern Great Plains are in that same
situation.
It is the biggest concern I hear about when I go in Indian
country. I was on the Salish Kootenai Tribe last weekend. A
good portion of that meeting was eaten up by health care
concerns. It is a very, very critical issue, both from access
and availability. I don't have to tell you that if you happen
to get sick at the wrong time of the year when the budget runs
out, you can't get services.
It is not an easy problem to solve. It is a problem that
quite frankly is a bit overwhelming to me, but it is a problem
that has to be solved.
My question to you is, do you have any ideas on how we can
deliver health care better in Indian country, and quite
frankly, in the urban centers, too, off the reservations? Are
there any ideas? Does it solely revolve around money resources?
Or are there other things we can do? I know it is a pretty
broad question, but you can answer any way you would like.
Mr. Agwunobi. Thank you, sir. I think one of the most
important things that we can do in the near term is to
reauthorize the Indian Health Care Improvement Act. I am very
clear in my mind on that. My colleague, Admiral Grim, and I
have had long conversations about the fact that getting it
done, not only does it relate to what is in the bill, but it is
a symbol of our commitment as a Nation.
Senator Tester. Let's just assume that it is passed and it
is done. What is the next step?
Mr. Agwunobi. I think there is an ongoing need for us to
address access issues. One of the things that we are working
with with the Indian Health Service is trying to make sure that
they are fully staffed, their need for nurses and for doctors,
that we find ways either through the U.S. Public Health Service
Commission Corps or other ways to make sure they have access to
the staff, the kinds of staff that they need, such as mental
health providers, nurses, physicians, dentists.
I do think we also have to keep our mind and our focus on
the fact that there are emerging threats that threaten to
compound this circumstance even more, methamphetamine abuse for
example, and the epidemic of use that is tearing into many of
these communities.
I think when all is said and done, it is going to require
that we consult with the tribes themselves, that they help give
us the ideas of how we might be able to help. These are
sovereign nations, proud people, and they need to be a part of
the solution in terms of its design.
I will turn to my colleague to see if there is anything
else you want to add.
Mr. Grim. I would just say I agree 100 percent with what
Admiral Agwunobi says. There are a lot of innovative things
going on within Indian Health Service. The thing that we
haven't done is that we haven't spread some of those innovative
things all over the country. We are looking at methods to do
that now. I think that is an advantage of our system, that we
can rapidly spread best practices or new things that we are
learning in one place rapidly across our system, whether they
are the Federal system or the tribal system.
We are working on really that methodology right now. We
have done it in diabetes. We have become world renowned, I
think, in that in the way we have dealt with diabetes. We are
starting to do that in chronic care now and in behavioral
health.
So that is part of working smarter within the system that
we have or bringing in new innovations that this committee
might want to discuss. That is some of the things we are
looking at for the future.
Senator Tester. I appreciate your respect for the
sovereignty issue. I also appreciate your comment about working
together to find solutions, and listening, because I think that
is critical.
I also appreciate the fact that you are using best
practices in other areas and trying to spread them around the
Country.
I also appreciate your haircut, by the way. [Laughter.]
Mr. Grim. I like yours, too. [Laughter.]
Senator Tester. The next question I had was, is has there
been, are you actively seeking communication from individual
sovereign nations? I would like to ask in Montana,
specifically, but it is important all over the Country. Has
that dialogue started? Is it continuing? Is it regular? Because
quite frankly, sometimes I wish I was still on the farm so I
didn't have to deal with these kinds of issues, because I am
telling you, it is serious, serious business. If we don't
address these problems, they are only going to get far, far
worse. So has that dialog been going on and is it going to
continue, and with what kind of regularity?
Mr. Agwunobi. I will start, and then turn it over to my
colleague. It has absolutely started. The notion of
consultation is something we believe is an obligation on our
end, to uphold and facilitate. My trip to Billings and then on
down into Crow country was a beginning of a larger commitment.
I have spoken with tribal leaders and committed to coming to
them, not just having them seek us out, but coming to them. And
I came to that community to listen to what are the needs, how
can we help.
The answer, sir, is yes, yes, yes, and yes. We have started
talking. We are going to continue talking. And we are going to
increase our communication. ``Talking'' is perhaps the wrong
word. We are going to increase our listening, not just hearing,
but listening.
Senator Tester. I appreciate that.
Thank you.
The Chairman. Thank you very much, Senator Tester.
Before I turn to Senator Murkowski, Mr. Beckner, Vice
Chairman Thomas was asking you some questions. I felt like you
were shifting in some ways from a direct answer, and I want to
describe the concern. We worked for two years on the Indian
Health Care Improvement Act, worked very hard on it, Senator
McCain, myself and others on the committee, to try to put
something together. We worked for 2 years.
On September 26 last year, at the end of the 2-year period,
this showed up. It is a Department of Justice white paper. It
is not signed. It was given to the steering committee of one
political caucus in the Senate, not both, just one political
caucus. It wasn't offered to the Committee on Indian Affairs,
neither to the majority nor the minority; raises all kinds of
questions in six single spaced pages. It takes the position
similar to the position you have taken today on things. The
classification of Alaska Native is based on race, and therefore
will be a problem.
So this is what I don't understand. One of the reasons I
asked you to be here is that Senator Thomas was asking you
about cooperation. How does it work that at the end of a 2-year
period, we have a white paper show up at the steering committee
of one political caucus in the Senate, not shared with this
committee? It did result, by the way, in several holds being
put on the bill. The result is 2 years of work on a bill that
we had watered down substantially because of objections from
HHS, objections from Justice. It resulted in us not being able
to pass a bill.
So how does this white paper show up, and especially how
does it show up not to us, but to a steering committee of a
political caucus in the Senate?
Mr. Beckner. Thank you, Mr. Chairman, and thank you for
giving me the opportunity to clear up the confusion about the
white paper.
It is my understanding that the Department's staff met with
committee staff for, as you said, 2 to 3 years on this bill.
The views that were set forth in that white paper reflected the
issues that had been previously raised in those meetings. In
those prior meetings, the staff was somewhat frustrated that
all the discussions were verbal, and they asked the Department
to put into writing some suggestions for language.
The white paper was intended to serve as a constructive
roadmap for resolving those concerns. It was the Department's
intention to provide the white paper to the Committee staff
after the Senate had gone into recess in the fall, in order to
further our discussions and use the white paper in continued
meetings with the staff.
Unfortunately, a version of the white paper was released
prior to that time and not to the committee staff.
The Chairman. Who released it?
Mr. Beckner. I don't know, your honor.
The Chairman. Who prepared it?
Mr. Beckner. It was prepared by lawyers in the Department
of Justice, lawyers at the Torts Division, Office of Legal
Counsel and others.
The Chairman. Have you asked the question of who released
it?
Mr. Beckner. I have asked whether the Department of Justice
released it and I was told that no one in the Department of
Justice released it. And I understand that after we found out
it was released prematurely, that it was provided to committee
staff and that we then also met with representatives of the
American Indian community to discuss it as well.
I do apologize for the timing. It was not our intent to
have it come out while the Senate was still in session. It was
our intent to use it to address staff concerns for written
specific targeted dialog that could result in actual language.
I would say that that actually happened, that based on the
white paper, we had very fruitful discussions with committee
staff. We ended up resolving our liability concerns with three
or four targeted suggestions, and our liability concerns were
resolved by S. 4122. We did not object to that bill.
The Chairman. It was not clear in September that we were
going to be back for a lame duck session, but it appears to me
this was designed at the end of the process to kill the bill. I
can simply say to you neither Senator McCain's staff nor my
staff, he was chairman and I was vice chairman, were privy to
this, and I don't believe either of those staffs asked you to
prepare this. I don't believe for 1 moment that no one released
it. It shows up in one caucus here in the Senate accidentally?
I don't think so.
That is why I started out this hearing with some concern
and some frustration. It is the case that there have been
efforts at every step along the way to undermine the efforts to
pass this bill. We have a piece of legislation that we need to
reauthorize. It deals with people's lives, health care. You are
suggesting to us we can't deal with Alaska Natives because it
is racial, for God's sake? The Department of the Interior
recognizes Alaska Natives.
So anyway, I have gotten rid of my frustrations with you
today only to say that this can't happen again. If you are
going to cooperate with us down at Justice, you have to do that
with all of us. We want to work with you in a forthright way to
get something done here. That is the reason Senator Thomas was
asking the questions. I am just telling you the evidence at the
end of last year is that Justice put out a white paper to kill
this legislation. And they did.
God bless you, but the fact is this legislation needs to be
passed and soon, and we will work with you, but at some point
you can put all of the white papers you want. If you don't
agree with us, don't come by in the midnight hour trying to
kill the product with white papers going to one political
caucus in the Senate. That is not going to work.
Mr. Beckner. I hear your concerns and I understand your
frustration. I can just reiterate that it was not our intent to
have it released.
The Chairman. Yes; but let me tell you something. You read
your response. When I asked you the question, you read what you
had prepared, and I think you have carefully considered how you
would respond to this uncomfortable question. I would much
prefer that you would not have had to read that, and instead
you would not have killed that bill last year. So let's start
over and work and see if we can get it done this year.
Senator Thomas, I don't know whether you have a comment on
that.
Senator Thomas. No.
The Chairman. Senator Murkowski.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I am glad that
you jumped in front of me because I was certainly prepared to
ask many of the same questions. I think we all find it
troubling that you spend the amount of time and, Mr. Chairman,
I know that you and Senator McCain spent an inordinate amount
of time working this through in the past couple of years, along
with the rest of us on the committee.
We recognize the importance of this legislation. To have
it, someone suggested, stalled out, but I think you have
appropriately said it, it was killed, and I think in a most
unfortunate way.
Mr. Beckner, you have just indicated in response to Senator
Thomas that you are going to look to resolve any issues that
you have with this bill and indicate that you are going to
cooperate with this, but I think it is fair to say that it
needs to be done openly, honestly, throughout the process. This
is too important an issue to the people in my State and the
people in States that are represented around this table, to
have legislation like this that relates to the basic health
care needs of our American Indians, Alaska Natives, and Native
Hawaiians, to not have it be reauthorized.
I appreciate you, Mr. Chairman, bringing this forward
today, the opportunity to ask some of the tough questions. I
apologize that I was not able to hear the testimony this
morning. I will have to go back and read the transcript and
make sure that I am fully up on what you all have said.
Mr. Chairman, I want to thank you. You had encouraged me to
work with you on how we might be able to move forward some
models for perhaps community health aide programs. In the next
panel, we will have Steven Gate from Sitka here today to talk
about the Alaskan model. With that in mind, Dr. Grim, I would
like to ask you your assessment of the success of the Community
Health Aide Program in Alaska. You have been around for a long
time watching what we are doing up there. Can you just speak to
this program and how it might be a model for the rest of the
country?
Mr. Grim. I think it has been an outstanding success,
Senator. In fact, it has been used as a model in other parts of
the world. We have been asked to have dignitaries from other
parts of the world come visit Alaska to see how they use it.
They have innovatively trained community members. I have
visited with some of those people. I don't know how they do it,
living in some of the remote communities that they do. They are
basically on call 24/7 because the community knows where they
live. It is a stressful job for them, but they do an
outstanding job.
You have also linked telemedicine very recently in
innovative ways so that those community health aide
practitioners have links to our major medical centers there in
Alaska. So when they have problems or need to send pictures or
get consults, they now have consults with some of the best
specialists and sub-specialists in the State.
It is an outstanding model and they do a great job. I would
like to publicly applaud them.
Senator Murkowski. Thank you. I know that they appreciate
your support.
As you know, we have many in the community who are not
State licensed to deliver the care. Over the 40 year history of
the program, to your knowledge, do we have any problems in
terms of liability?
Mr. Grim. To the best of my knowledge, I could ask our
people that deal with that and give you a more perfect response
for the record, but no, we have not had, and we have had a
Federal oversight board, as you know, that certifies those
individuals.
Senator Murkowski. That is my understanding. We are doing
very well and have not had problems with the liability issue.
It is something that I know that Justice had expressed some
concerns about. I am not quite sure why, so it is nice to have
it on the record. If you have anything that would supplement
that, I would certainly appreciate that, but I think we can use
this as one of those models applicable throughout the rest of
the country as we attempt to deliver health care in rural and
isolated places.
Mr. Chairman, I just want to note for the record that among
the Alaska Natives, my constituents up north, there is no one
more important piece of legislation that this Congress could
pass than the reauthorization of this. So we look forward to
working with you on this and hopefully have the genuine
commitment from all involved.
I also have an opening statement that I would like to have
included as part of the record.
The Chairman. Without objection, Senator Murkowski.
[Prepared statement of Senator Murkowski appears in
appendix.]
The Chairman. We talked a little about a new medical model
of convenient care centers and so on that we have been talking
about and working on.
Senator Tester had another question.
Senator Tester. Yes, Mr. Chairman; thank you very much. I
want to take a step back because I may have made an assumption
I should not have made, that the passage of this bill is
automatic, because it is obviously not. What is the date on
that white paper?
The Chairman. The date is September 26, I believe.
Senator Tester. Of last year?
The Chairman. Yes.
Senator Tester. Was the bill amended after that date?
The Chairman. We worked on the bill leading up to and
through the lame duck session. We made some modifications
following that date as well.
Senator Tester. Okay. The question I had was for Mr.
Beckner. You had said, when Vice Chairman Thomas was asking you
questions, that you had not had a chance to take a look at the
bill, but if it was similar or identical to the bill in the
109th Congress, that you were not going to have any problems
with it.
Mr. Beckner. If it was identical to S. 4122, we had no
objections to S. 4122.
Senator Tester. And so those few changes that were made
after September 26, 2006 took care of all your concerns in that
6-page single spaced white paper?
Mr. Beckner. I am sorry I interrupted you, Senator.
Senator Tester. That is all right.
Mr. Beckner. They resolved all our liability concerns, and
we agreed to disagree on the constitutional issues. We did not
object to the legislation.
Senator Tester. Okay. Thank you very much.
Senator Thomas. The Senate might be interested to know that
the bill was introduced 2 hours before the end of the session
last year, so it had gone through a lot of things.
The Chairman. Let me also make the point, to finalize the
point, the bill that was introduced at the end of the last
session was not something that I had signed up to or agreed to.
What happened was your September white paper actually forced a
circumstance where objections were raised on the floor so that
the floor couldn't be brought forward. It forced more
discussions to happen in the last hours of the session. Changes
were made to the bill that I did not agree with and did not
support.
The bill didn't pass, in any event. My point, Mr. Beckner,
is I think it is pretty clear to me, and I have been around
here a long while, the way it works, this tubed the bill. I
have invited you to testify today, and I appreciate your being
here. You have said you want to cooperate with us. I want to
cooperate with Justice and I want to turn the page. But I don't
like what happened last year. I don't want it to happen again.
If we disagree, that is fine.
You are in the executive branch, and you can disagree with
us. We are in the legislative branch. We are going to
legislate. We will work with you to solicit your input, solicit
the input of HHS, do the best we can to put together the best
legislation we can do, and try to move legislation. I don't
want to wait until the end of next year to find out that we
would fail again. I want to succeed and I want to do it sooner,
rather than later.
So I appreciate your pledge of cooperation. We will look
forward to working closely with you.
Mr. Agwunobi, we are going to work closely with you and Dr.
Grim as well, because we want to work on some changes in the
medical models and convenience care and other things that will
write a new bill, one that I think is more exciting, more
interesting, and as Dr. Coburn said earlier, that really does
change the delivery system of better health care to people who
desperately need it.
I want to thank the three of you for appearing today and
for being with us at the hearing. Thank you very much.
Mr. Agwunobi. Thank you.
Mr. Beckner. Thank you, Mr. Chairman.
The Chairman. I would like to now call the final four
witnesses. Richard Brannan is chairman of the Northern Arapaho
Business Council at Fort Washakie, WY.
Might I ask the Indian Health Service to stay, and Justice?
If you have the time, I would love to have you stay just for a
bit to hear some of the testimony.
Okay, thank you.
Rachel Joseph is cochair of the National Steering Committee
on the Reauthorization of the Indian Health Care Improvement
Act. Edward Lazarus is a partner at Akin Gump. Steve Gage is
director, Community Health Aide Program, Southeast Alaska
Regional Health Consortium in Sitka, AK
We thank you for being here. We appreciate your patience.
We will have Richard Brannan begin.
Would you wish to say a word?
Senator Thomas. Yes; I would. I want to welcome the
chairman, Richard Brannan, from the Northern Arapaho Tribe at
Fort Washakie, WY, to testify. Chairman Brannan participates in
the National Indian Health Budget Formulation Team, the
National Tribal Leaders Diabetes Committee for the special
diabetes program for Indians. I appreciate his leadership and
am delighted to have you here, sir.
I am sorry you had problems getting here. I understand you
came to Denver to Los Angeles to Washington.
Mr. Brannan. Yes, I did. [Laughter.]
Senator Thomas. That is the long way around.
The Chairman. Mr. Brannan, you may proceed. Your entire
statement, in fact the statements of the panel will be made
part of the record.
Mr. Brannan. Thank you.
STATEMENT OF RICHARD BRANNAN, CHAIRMAN, NORTHERN ARAPAHO
BUSINESS COUNCIL
Mr. Brannan. Good morning, Chairman Dorgan, Vice Chairman
Thomas, members of the committee. My name is Richard Brannan. I
am the chairman of the Northern Arapaho Tribe of the Wind River
Reservation in Ethete, WY. I am serving my fourth term as
chairman of my tribe. I am a member of the National Steering
Committee for the Reauthorization of the Indian Health Care
Improvement Act, the Tribal Leaders Diabetes Committee, and the
Indian Health Service Budget Formulation Team, representing the
Montana and Wyoming tribes.
I worked several years for the Wind River Service Unit, the
IHS facility on my reservation, as the Administrative Officer.
Health care has been a personal priority not only during my
interim in the IHS, but as a tribal leader. I appreciate this
opportunity to address the health issues of tribes, and would
like to thank the committee for the opportunity to testify in
support of the Senate bill to reauthorize the Indian Health
Care Improvement Act.
Today, I would like to divert from the usual delivery of
testimony. I have faith in my colleagues and their knowledge
and experience that they will impart to the committee today the
priority issues relating to and the importance of reauthorizing
the Indian Health Care Improvement Act.
Instead, today I would like to put a face to these priority
issues so that as we deliberate on reauthorization that we keep
the faces of American Indian and Alaska Native people in our
minds and hearts. As I begin this address, there are
fundamental principles that need to be reaffirmed regarding
tribes and our sovereign status.
The overarching principle of tribal sovereignty is tribes
are and have always been sovereign nations. Tribes pre-existed
the Federal union and draw our rights from our original status
as sovereigns before Europeans arrived. The fundamental
principles of tribal sovereignty are as a sovereign nation.
Tribes, as evidenced through the treaty-making Indian commerce
clause of the Constitution, engage in a government-to-
government relationship with the United States.
The sovereign power of tribes include the power to
determine our form of government, determine tribal membership,
regulate domestic relations among our members, prescribe rules
of inheritance, levy taxes on members and persons doing
business with members on tribal lands, control entry onto
tribal lands, regulate the use and distribution of tribal
property, and administer justice among members of our tribe.
Today, I would like to take you back approximately 143
years to one of the most horrendous acts perpetrated on the
Arapaho people, the Sand Creek Massacre. To this day, we do not
really know the level of historical trauma sustained by our
tribe because of this event, but we do know that it is there
and we continue to suffer because of it.
Colonel John Chivington, a Methodist minister, and his 800
troops marched in order to attack the campsite of Black Kettle.
On the morning of November 29, 1864, the Army attacked the
village and massacred most of its inhabitants. Chivington
proclaimed before the attack, ``Kill and scalp all big and
little. Nits make lice.'' Only 9 or 10 soldiers were killed,
and 3 dozen of them were wounded. Between 150 and 184 Arapahos
and Cheyennes were reported dead or killed, murdered. And some
were reportedly mutilated, and most were women, children, and
elderly men.
Chivington and his men later displayed scalps and other
body parts, including unborn babies that were cut from their
mother's wombs and the private parts of women.
The Joint Committee on the Conduct of the War declared as
to Colonel Chivington, your committee can hardly find fitting
terms to describe his conduct. Wearing the uniform of the
United States, what should be the emblem of justice and
humanity, holding the important position of commander of a
military district.
Therefore having the honor of the Government to that extent
in his keeping, he deliberately planned and executed a foul and
dastardly massacre, which would have disgraced the vilest
savage among those who were the victims of his cruelty. Having
full knowledge of their friendly character, having himself been
instrumental to some extent in placing them in their position
of fancied security, he took advantage of their inapprehension
and defenseless condition to gratify the worst passions that
ever cursed the heart of a man.
I am an Arapaho, and when I speak about the Sand Creek
Massacre, I am amazed that we as Arapaho people have
persevered. During the Sand Creek Massacre, Arapaho women and
children were brutally murdered. The soldiers especially
targeted children that day, with the idea to exterminate them
and destroy the entire tribe.
The Sand Creek Massacre occurred in 1864 and today it is
2007. We as tribal people continue to fend off the attack on
our children. This time, the attacker is not as visible as
Colonel Chivington's troops, but more deadly. In 2007, we are
defending our children from succumbing to the effects of the
decreasing Indian Health Care budget, devastating health
disparities, and dangerous emerging diseases, the impacts of
methamphetamine abuse.
Nationwide, the disparity in health status and access to
health care for American Indians and Alaska Natives is
staggering. Tribal leadership and the Indian Health Service
continues to educate Congress and the Administration and all of
America on the devastating disparity suffered by American
Indians, Alaska Natives in health status, mortality rates, and
access to health care. Diseases that continue to challenge the
health of American Indians and Alaska Natives are diabetes,
alcohol substance abuse, heart disease, and cancer.
Today, what I did is, I brought pictures of three little
Arapaho angels. I call them angels because they are in heaven
now. They couldn't be here in person. I apologize. What I did
is I had to show them. This is what I face every day, is the
death of children, and the suffering.
This beautiful little baby whose name is Dylan Whitcomb.
Dylan is Arapaho. He was diagnosed in late 2004 and died in
early 2005 of neuroblastoma. He had just turned 5 years old. He
was a brave little boy and often amazed his grandmother in his
unwavering certainty that he would get better. In fact, he
often comforted his family. Dylan needed treatment that was
more than could be provided by the Wind River Service Unit.
By the time resources were made available through private
sector partnerships and charitable givings, Dylan had advanced
stages of the disease. He entered a children's cancer treatment
center where one of his friends was a little girl that was
diagnosed with the same disease about the same time as Dylan.
She was able to access care earlier than Dylan and was healthy
at the time of the reporting. Cancer is devastating.
What I did is I brought a picture. Her name is Marcella
Hope, a little 22 month old baby that was killed. She died
hanging in a closet on a hanger, years of abuse because her
parents were methamphetamine addicts. I have to live with this
as the chairman. I have to live with my conscience. I have to
see what can I do. I come here. I am not trying to grandstand.
I am trying to get a point across here. People are dying.
Children are dying. We need to do something. People are
suffering. I live this every day.
This little boy here is also a 22-month old little Arapaho
angel. We only buried him in November. At 22 months, he was
beaten to death. I went to his funeral. It is not natural to
see a little 22 month old baby in a casket. They had to have a
hat on him because his head had swelled so large. I went the
night before to his grandfather's residence. I went in there
and I asked him, I said, can you please forgive me for failing
you and your little grandson. And what he responded back to me,
he said, he was special. People feel guilty. They may feel
guilty, but he was special, and God called him early.
His other grandfather is being buried today. He died from
sorrow of losing his grandbaby.
I did have written testimony, but I need to get that across
to everybody in this room, that we are dealing with little
children. We are dealing with human beings that have feelings.
I always try to do that. I am not much in terms of statistics,
because that doesn't really show the true story.
In closing, my grandmother, she lived to be 99 years old.
Her name was Cleland Thunder. And what she told me is her
elders taught her to pray for the President, the Vice
President, Congress, all of the people that work here in
Washington, that they would be blessed; that they would have a
good life; and hopes that life would be so good for them that
they would look back on the Arapaho people with some pity.
We continue to practice that today. That is a continuous
practice. What I come here today for is asking for the Federal
Government just for some pity, some compassion. I thank you for
giving me this opportunity to testify. The Sand Creek Massacre
is my legacy. That is my life. I live that every day. I live
that trauma. So that is why I am talking about it, and I am
trying to make the connection of the Sand Creek Massacre of
what is happening to our children today.
Thank you, Mr. Chairman. Thank you, Committee members for
allowing me to testify. You have given me the honor to be here.
[Prepared statement of Mr. Brannan appear in appendix.]
The Chairman. Chairman Brannan, thank you very much for
being here. Thank you for your passion. We understand that it
was difficult for you to even get here, just with the
arrangements and so on. And thank you for invoking the memory
of some wonderful young members of your tribe and telling us
about their lives. We appreciate that very much.
Ms. Rachel Joseph is the cochair of the National Steering
Committee on the Reauthorization of the Indian Health Care
Improvement Act. Ms. Joseph, thank you for your abiding work on
this issue over a long period of time. We appreciate very much
your being here.
STATEMENT OF RACHEL A. JOSEPH, COCHAIR, NATIONAL STEERING
COMMITTEE ON THE REAUTHORIZATION OF THE INDIAN HEALTH CARE
IMPROVEMENT ACT
Ms. Joseph. Thank you. Good morning, Chairman Dorgan, Vice
Chairman Thomas, and members of the committee.
I am Rachel Joseph, Co-Chair of the National Steering
Committee for the Reauthorization of the Indian Health Care
Improvement Act.
In 1999, the director of the Indian Health Service
comprised the National Steering Committee of Tribal
Representatives, a national organization. After extensive
consultation with the tribes, we forwarded a consensus bill
which reflected the best thinking of tribal leaders across the
Country. We continue to provide advice and feedback to the
Administration and Congress regarding reauthorization.
In 1976, when the Indian Health Care Improvement Act was
enacted and signed by President Ford, with the mission to bring
the health status of the first Americans to the level of the
general U.S. population. The Indian Health Care Improvement Act
was reauthorized in 1988, and again in 1992, but has not been
updated in over 14 years. Modernization is necessary for
improvements to the health care systems.
The health disparities as already articulated by the
assistant secretary of Health and the chairman of the committee
demonstrates the need to provide enhancements so that we can
update our health care delivery systems, improve the quality of
life, and save the lives of Indian people.
Since 1999, we have accommodated Administration and
congressional concerns by working out many compromises and by
reaching consensus on key policy issues. At the same time, the
steering committee has held to the guiding principles of no
regression from current law and protection of tribal interests.
After working to secure reauthorization, you can imagine
how disappointed Indian country was when the Indian Health Care
Improvement Act failed to pass the Senate in the 109th
Congress. The bill, we believe, was largely derailed by the DOJ
memorandum already discussed today.
The memo addressed issues that would erode sovereignty and
contained several inaccurate claims. DOJ raised constitutional
issues regarding the definition of Indian. The definition of
Indian in the reauthorization is the same definition that has
been in the law for over 30 years, and has never been
challenged on constitutional grounds. This definition is
consistent with definitions of Indian found in other Federal
laws, such as the No Child Left Behind Act.
To ensure no regression from current law, the steering
committee strongly recommends that the definition of Indian,
definition of urban Indian and definition of California Indian
be retained.
DOJ also objected to FTCA coverage for home and community-
based services and traditional health care practices because of
standard of care issues. Currently, the IHS and tribes provide
home health care services following State Medicaid standards of
care. Traditional health care practice can be complementary to
Western medical medicine. In most cases, traditional health
care practitioners are not employees of the IHS or tribes so
FTCA coverage would not apply. Also, it is our understanding,
as already testified to by the Department of Justice, that no
FTCA claim has ever been made for this kind of health care.
Over the past few months, the steering committee has worked
with congressional staff in recommending legislative changes to
any reauthorization. My written testimony highlights these
issues in great detail.
As asserted by Mr. Chairman and Senator Coburn, the status
quo is not acceptable. Thus, we support strongly the elevation
of the IHS director to the assistant secretary of Health and
Human Services. We believe that elevation is consistent with
the government-to-government relation and the trust
responsibility to tribal governments.
We support strongly the establishment of a bipartisan
commission to study the optimal way to provide health care to
Indian people. We believe that the last version of the
legislation did modify language relate-d to the study and we
would recommend that we stay with the language that was in S.
1057.
We believe strongly that tribes should provide the kind of
long-term care and human community-based services that are made
available to other populations in our Country, enabling elders
to receive long-term care and related services in their homes
or tribal facilities closer to family and friends.
We strongly support comprehensive behavioral programs for
at-risk Indians, and the authorization would allow behavioral
health programs to reflect tribal values and emphasizes
collaboration among alcohol substance abuse and social service
programs, and mental health for all age groups, with specific
programs for Indian youth.
Chairman Dorgan, in your Senate floor statement of January
22, you discussed the need for improving emergency access to
reservation health care through expanding clinic hours and
other innovations. You asserted the need for an Indian health
care delivery model to replace existing emergency rooms at
hospitals with low cost and after walk-in clinics, a model
currently available in the private sector. We appreciate your
leadership in proposing delivery systems in Indian country that
are more accessible.
In spite of our consistent underfunding, our tribal
programs continue to establish innovations that make care more
accessible. For instance, some tribes have established after-
hour programs for health promotion and disease prevention. My
local health board is proposing a preventive dental health
program on Saturday mornings for families who are not able to
access these services during the week.
Some programs provide after-hours services by establishing
toll-free numbers for patients to call in. I have a copy of our
magnets that list all the toll free numbers of our health
project, to ensure access for our service population,
particularly since 10 percent of the people that we serve are
over 65 years of age, and 32 percent of our children under five
are at poverty level or below.
It lists the toll-free number for medical, dental, pharmacy
and on. I have called this number after hours, and with the
answering service asked to speak to a doctor who was able to
get back to me, and we worked through my need for care at that
particular time.
While the NSC supports legislative language clarifying
existing authorities or expanding existing authorities to
demonstration projects, additional funding is needed to
facilitate any new programs that are authorized.
In closing, I would like to emphasize that we believe that
the passage of this legislation would be facilitated if tribal
leaders are at the table with congressional staff and the
Administration, which is consistent with meaningful government-
to-government relations and collaboration.
Thank you to the committee for the leadership you provide
in support for the reauthorization, and the other critical
issues that affect Indian country. I appreciate the opportunity
to testify today, and with my steering committee colleague,
Chairman Brannan.
If I may make just a brief notation, and comment on the
testimony the Administration made about objections to
behavioral health programs in section 712 addressing fetal
alcohol disorder services, tribal leaders spoke strongly that
we should be able to educate expectant mothers about the harm
that is done if they should continue to use alcohol, meth or
other substances. So we feel strongly about ensuring that we
have a comprehensive approach and the ability to do our jobs.
Thank you.
[Prepared statement of Ms. Joseph appears in appendix.]
The Chairman. Ms. Joseph, thank you very much. As I said,
thanks for your continuing work on these issues.
Next, we will hear from Edward Lazarus, who is a partner at
Akin, Gump, Strauss, Hauer, and Feld in Los Angeles, CA. Mr.
Lazarus, thank you for joining us.
STATEMENT OF EDWARD P. LAZARUS, PARTNER, AKIN, GUMP, STRAUSS,
HAUER, AND FELD, LLP
Mr. Lazarus. Thank you, Chairman Dorgan and Vice Chairman
Thomas, distinguished members of the committee.
It is a particular pleasure for me to come and appear this
morning. I vividly remember as a boy coming to watch my father
testify before this committee, and it was a significant reason
that I ended up going to law school, and now I am here
appearing as a constitutional authority. So there is a special
poignancy in that for me.
Listening to Chairman Brannan this morning has actually
caused me to revise the summary that I was going to give
because in light of that, there seemed something terribly
theoretical and abstract about arguing about which standard of
review ought to apply, whether it is the Morton v. Mancari
standard of rational relations, or the stricter test that
applies to racial classifications.
I think one thing that is important to bear in mind is that
the Department of Justice has never suggested that the Act,
regardless of the standard of review, is unconstitutional. I
think it is very much worth bearing in mind that even if the
stricter test were to apply, that this committee and the
Congress can do a great deal to try and ensure that it would
pass even the stricter test that would be applied to a racial
preference.
In my statement, I was presumptuous enough to suggest that
the act might be amended to add some additional findings to
meet the test of strict scrutiny, which talks about the need
for the benefit, the failure of race-neutral alternatives, and
the impact on rights of third parties, and the fit of the
classification.
I think just listening to Chairman Brannan today and the
comments that had already been made by the other witnesses, and
by the distinguished members of the committee, it seems to me
that a very, very compelling case can be made that given the
conditions of Indian health, both in the cities and on the
reservations, that this is legislation that meets all of those
criteria.
That said, the question does remain, which standard of
review should apply. The main question really boils down to
this one of whether the definitions of Indians and urban
Indians in the act is so broad by including members of State-
recognized tribes and non-members who are one or two degrees
descended from members is so broad that it tips this over from
the political classification recognized in Morton v. Mancari
into being a race-based classification. While the question is
not completely without doubt, I think the better answer is that
this remains a bill that creates a political classification.
The starting point for the analysis has to be the
extraordinary power and responsibility that the Congress has in
the area of Indian affairs. The extraordinary power comes from
the Indian Commerce Clause, a specific grant of power in the
Constitution, and the 175 years of court decisions interpreting
that clause to give Congress broad plenary authority in the
area of Indian affairs.
The responsibility comes from the more than 200 year
history of relations between the United States and the tribes,
much of which is very tragic and was touched upon, of course,
by Chairman Brannan, which has created a remarkable and strong
duty of protection on the part of the Congress. Congress has
legislated many, many times pursuant to that duty of protection
to create special benefits for tribes. Health care has been a
very, very important component of that going back, again way
back into the early part of the 19th century.
The basic rule has been that when Congress legislates for
the benefit of tribes, that treatment need only be rationally
tied, and this is the language of the court, to Congress's
unique obligation toward Indians. That is the language of
Morton v. Mancari.
So the question is whether somehow by broadening out the
coverage of this act to members of State-recognized tribes and
not merely federally recognized tribes, and by bringing within
the ambit of its benefits those Indians who are defined as
urban Indians, who are non-members descended in the first or
second degree from members, or Eskimo, Aleuts, and Native
Alaskans, that this somehow has become a racial classification.
I think the answer with respect to State-recognized tribes
is pretty straightforward. State-recognized tribes are, of
course, political entities as well. There is a long history of
recognizing Congress's very substantial power to define tribal
relations and to recognize tribes for all purposes or just for
some purposes. When you put those powers together, it does seem
that there is no reason to consider providing benefits to
State-recognized tribes as a racial classification, as opposed
to a political one.
With respect to the urban Indian definition, the truth is
the case law just doesn't provide a definitive answer. In
Morton v. Mancari, the court spoke very generally about the
unique obligation to Indians, not federally recognized tribal
members only. But at the same time, that case did arise in the
context of a preference that was limited to federally
recognized tribal members.
Several cases after Morton v. Mancari, the most prominent
Delaware Tribal Business Commission v. Weeks, made no
distinction between Indians and tribal members only. The Rice
v. Cayetano case, which the case on which the Department of
Justice relies, does note that Morton v. Mancari is limited to
a preference in favor of members of recognized tribes, but the
decision does not turn on that fact. The court was making no
effort to delineate exactly where the line is between political
and racial classifications.
So in the absence of any defining case law, to me I think
this question boils down to a matter of history and logic. When
you look at the history, and we know----
Chairman Dorgan. Mr. Lazarus.
Mr. Lazarus. I am sorry.
Chairman Dorgan. Perhaps even as your father experienced
many years ago, we require discussions of the Constitution to
be limited to 5 minutes. [Laughter.]
Mr. Lazarus. And so they should be. I will simply close by
saying that Congress has the power, it seems to me, to view
these urban Indians as defined in the act as derivative of the
political relationship with the tribes, and therefore bring it
within the ambit of their power.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Lazarus appears in appendix.]
The Chairman. Thank you for coming all this way and
testifying. I regret that we do have limits on testimony by
witnesses. I allowed Chairman Brannan to proceed longer because
of the nature of his testimony. Your testimony is very helpful
to us and we hope to engage with you as we construct this
legislation.
Senator Murkowski, would you like to introduce the next
witness?
Senator Murkowski. Thank you, Mr. Chairman.
I would like to welcome to the committee this morning
Steven Gage. Steve is the director for Southeast Alaska
Regional Health Consortium, SEARHC, and he is also the chair of
the Alaska Association of the Community Health Aide Program, a
program that has been described earlier as being around about
40 years now. He has done a very fine job in this, and I think
we will have an opportunity to again hear a little bit more
about how this particular program in Alaska can be a model for
throughout the Country.
Welcome, Mr. Gage.
The Chairman. You may proceed. Your entire statement is
made a part of the record.
STATEMENT OF STEVE GAGE, DIRECTOR, COMMUNITY HEALTH AIDE
PROGRAM, SOUTHEAST ALASKA REGIONAL HEALTH CONSORTIUM
Mr. Gage. Thank you. Good morning, Chairman Dorgan and Vice
Chairman Thomas and committee members. As you heard, my name is
Steve Gage and I am a physician assistant. I work for the
Southeast Alaska Regional Health Consortium. I am based in
Sitka, Alaska. I am the director of the Community Health Aide
Program that SEARHC operates.
SEARHC is as consortium of 18 tribes and predominantly
serves the Tlingit, Haida, and Tsimshian Indian peoples of
Southeast Alaska. I have been associated with the Community
Health Aide Program for about 17 years. If you can picture
yourself in a small town of a few hundred people, not unlike
many rural areas throughout the United States in the early
1900's, access to medical care in that setting is hours and
days away, and travel may involve land, water and air, and is
entirely based on weather.
In this setting, if you become ill or injured, who are you
going to call? In the scenario that I just described, if you
were in Alaska, you would most likely be calling a community
health aide. Presently, there are about 500 community health
aides working in 180 communities throughout Alaska. They are
employed by 27 638 tribal organizations. There were about
300,000 patient encounters in 2006.
As you heard, the Community Health Aide Program is about
40-years old and it was developed in Alaska to deal with the
tuberculosis epidemic in Alaskan villages. It has evolved into
the backbone of health care delivery in nearly all rural areas
of Alaska.
Community health aides are generally recruited from the
communities they serve, and approximately 80 percent of them
are Alaska Natives. Being a resident of the community enables
health aides to understand the language, the customs, and the
traditions of the community, and they are less likely to leave
after 1 or 2 years.
Training consists of emergency skills to at least the
emergency trauma technician level, and that is combined with
four 1 month sessions covering most aspects of basic primary
medical care. Training is based on a statewide curriculum and
is done at one of four training centers: Sitka, Nome, Bethel,
and Anchorage.
The first two sessions of training are usually complete
within 6 months of hire, and the entire process is usually
complete within 2 years. The University of Alaska College of
Rural Health recognizes this training and extends credit toward
an AA degree for health aides.
Following the four sessions, health aides have a clinical
preceptorship and testing process which, when passed, qualifies
them as a community health practitioner. Continuing medical
education must be maintained and a 1 week-long clinical
evaluation is repeated every 6 years. In some cases, health
aides have received additional training in health care such as
early prevention screening and testing for childhood diseases.
Health aides work using a revised manual that directs their
history, physical exam, and guides them to an assessment.
Regardless of their years of experience and training, the
manual must be used in all patient encounters. I have brought a
copy of our new manual, and there are copies that are available
if you wish to have one. Each community where health aides
serve has medical oversight by tribal or IHS referral
physicians. The manual guides the health aide to a general
diagnosis. Treatment options are then discussed with the
referral physician.
This physician may delegate some supervision of health
aides to mid-level practitioners like physician assistants or
family nurse practitioners. The physician may also approve a
limited number of medical standing orders which enable the
health aide to treat those conditions based on previous
consultations.
Apart from standing orders, all patient encounters require
consultation with a higher level medical provider. In Alaska,
the Federal Telehealth Program provides the mechanism for this
and has supplemented telephone counsels. Health aides usually
work regular hours on a weekday schedule, and provide after-
hours emergency care on a call rotation. Health aides work in
all areas of medicine. Preventive health care services is an
area that is getting increased attention by health aides, and
one we hope will reduce the need for acute and chronic medical
care.
As an example, in part due to health aide services,
Alaska's maternal and infant health have improved recently. In
1998, a Community Health Aide Program certification board was
established to oversee the program statewide. The program is
cost-effective and well received in Alaska. The State of Alaska
contributes funds for program operations, and while tribal
groups operating health aide programs are struggling with
funding, they are committed to maintain the program as one of
the most important that they offer their people.
I understand you are considering using the program as a
model to provide health care. I will tell you that it works
well in Alaska. Part of Alaska Native culture is to share what
you have with others, and we would be very happy to share our
program and our expertise with you.
Thank you.
[Prepared statement of Mr. Gage appears in appendix.]
The Chairman. Mr. Gage, thank you very much. You have come
a long way to provide us information, which is very, very
helpful. Alaska is, of course, unique and its challenges in
delivering health care are very unique. I am very interested.
You said you were a physician's assistant?
Mr. Gage. I am.
The Chairman. The opportunity to use physician assistants
and nurse practitioners to be involved in more convenient care
for routine diagnosis in remote locations is something I am
very interested in. I have talked with Senator Murkowski about
that, as a national model. We talked to Dr. Grim as well. So I
appreciate very much your testimony as well.
I will ask a couple of questions, but I will ask them at
the end. I will call on Vice Chairman Thomas first for any
questions.
Senator Thomas. Is that your statement in the green package
there, Mr. Gage? [Laughter.]
Mr. Gage. It is not quite that long. [Laughter.]
Senator Thomas. Okay.
Mr. Gage. But it is quick reading, actually. Once you get
started, you can't put it down. [Laughter.]
Senator Thomas. Mr. Brannan, you have talked a lot about
one of the reasons for all the medical care and prevention
programs are important at reducing alcoholism. What kind of
training and communication programs do you think would benefit
your tribe?
Mr. Brannan. Senator Thomas, I look at alcohol as being a
gateway drug, for lack of a better term, for methamphetamine
addiction. In terms of the Indian Health Service, the budget is
so strained there really isn't any funding available to do any
preventive health education, any training whatsoever.
As we talked on our reservation, it is about 2.2 million or
2.3 million acres. In some instances, we have six police
officers, sometimes maybe one police officer patrolling the
whole reservation. They have approached the council a number of
times very frustrated because all they do is arrest people.
They said if they had enough resources, they could go into the
schools, talk with the young children, similar to what the DARE
Program was before. That was very beneficial.
But the critical thing here is in terms of our children, at
least 50 percent of the Arapaho Tribe is 21 years or younger.
What we are attempting to do is build self esteem, trying to
let them learn their identity as Arapaho children.
Senator Thomas. Some of the health care programs would be
supported by doing things outside of the health care expense.
Mr. Brannan. Yes.
Senator Thomas. Okay.
Ms. Joseph, there have been concerns expressed about
expanding the joint venture programs, how successful have these
programs been, and how do they work under the existing program.
Ms. Joseph. Senator, what I understand from the tribes that
have been involved in joint venture programs that they have
been very successful. Unfortunately joint venture in the small
ambulatory care program have not received appropriations
consistently over the years. But the couple of years in the
last few years, there has been money. It allows tribes to move
forward and construct a facility. The Indian Health Service
provides the staffing for that facility.
Senator Thomas. DOJ has been concerned that the standards
don't apply, that the tribal facilities are not subject to the
standards. Is that a concern of yours?
Ms. Joseph. Not that I am aware of. When we construct
facilities, and we are going to receive Indian Health Service
funding for staffing, we have to meet State standards, or they
have to meet some standard.
Senator Thomas. Do you use lay persons or relatives to
provide public health care?
Ms. Joseph. Not in our project.
Senator Thomas. Okay. [Laughter.]
All right, very good.
Mr. Lazarus, you cited the Morton case, the unique
obligation toward Indians. Can you explain what that means,
unique obligation toward Indians, very briefly?
Mr. Lazarus. Yes, Senator; I think the unique obligation
toward Indians is something that has developed through the
Cogma case called the course of dealings. You have the Indian
Commerce Clause, which gives Congress the authority to deal
with the Indian tribes and the course of dealings have created
this duty of protection.
Senator Thomas. What is the problem?
Mr. Lazarus. Well, in many circumstances, the Indian
nations have become dependent upon the United States for their
health and welfare, and Congress has the authority to do
something about that.
Senator Thomas. I don't think that answers the question.
Mr. Lazarus. I am sorry if I misunderstood you, Senator.
The Chairman. Is there a trust responsibility here?
Mr. Lazarus. Of course. The duty of protection is----
Senator Thomas. Without regard to tribal membership,
though. Isn't that the issue?
Mr. Lazarus. The question is whether it is limited to
tribal members, and I think in my view, the best reading of
Morton v. Mancari is that while that case involved a preference
for tribal members, the general rule stated in Mancari is not
limited to that. If you look at the Delaware Business Committee
case that I referenced, that is a case in which Congress
distributed claims money to both members and non-members, and
so it is not limited just to members.
Senator Thomas. Got you.
Mr. Gage, you mentioned your August, 2006 attrition survey,
and 20 percent of your medical attrition rate among medical
providers. What could be done, in your opinion, to encourage
reducing that attrition rate?
Mr. Gage. Could you say the question again?
Senator Thomas. You indicated a current attrition rate of
20 percent in your medical and nursing professionals in Alaska.
Mr. Gage. About 80 percent of our community health aides
are Native Alaskans. We have some turnover in that, and I think
one of the factors that might impact the attrition rate would
be if we could pay better salaries, if we could staff the
clinics with an additional person. In some cases, it is the
constant drain of being on call, and the workload that burns
people out.
So funding would be a key component in that.
Senator Thomas. Okay. Thank you.
The Chairman. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
Let me just followup with that, Mr. Gage, because I did
want to ask about the funding aspect of it. We recognize that
in these small communities in the villages, as remote as they
are, yes, you may be working a regular work week, but if you
are on call and you know everybody in town, even if you are not
on call you are going to be working. It is very intense in that
way.
Senator Stevens and I have been working to increase the IHS
funding to help with the CHAP's program. What is the funding
gap that we have right now, would you say?
Mr. Gage. The program overall costs about $55 million, as
best as I can understand it. Presently, the tribes are
contributing a gap between what we get in IHS funding and
Medicaid. There are State contributions to this program of
about $17 million that they basically take from other sources
and supplement this program just because they feel it is so
important. That is money that is taken away from other
services, but it is probably money that is well spent.
We are asking for an additional recurring funding to do
things like maintain this manual. This re-edit in 2006 was
largely done with volunteers and just kind of pieced together.
We were very fortunate that a lot of people took such an
interest in this that they made it part of their job, and the
corporations released people from other activities to work on
this.
We are not going to be able to do that again and expect
that kind of support. So we need funding for that.
Senator Murkowski. Let me ask you, you said you have been
with SEARHC for 17 years. If we didn't have the Community
Health Aide Program in the State, where would we be in terms of
our ability to provide for the health care need for Alaska
Natives, in your opinion?
Mr. Gage. Boy, Senator, I wouldn't even want to picture
that. We just wouldn't have health care in a lot of
communities. There might be somebody with some EMT training, or
able to provide some basic first aid, but it would require
everyone traveling, if they could afford it and if the weather
permitted, or simply enduring consequences of disease. We have
diabetes. We have chronic diseases. We have children. All of
those things would be impacted. Our health care would go way
down. I couldn't imagine it without the community health aides.
Senator Murkowski. We don't want to go backward.
I asked the question of Dr. Grim about any liability issues
that he was aware of as a consequence of the fact that you
don't have some that are State licensed. Are you aware of any
liability issues, at least within your experience down in
SEARHC?
Mr. Gage. No; I am not. I have worked in this capacity for
about 17 years, and I am not aware of any that have come from
our preparation.
Senator Murkowski. Mr. Chairman, I just might want to add
for the record, we had an opportunity last week up in the State
to hold a field hearing for the HELP Committee on the shortage
of medical providers in the State of Alaska, just overall, not
necessarily within IHS. But our reality is we have the lowest
population to physician ratio in the Nation. It is getting
worse. We don't have providers, period. So if we didn't have
this Community Health Aide Program in our villages, as Mr. Gage
has mentioned, we just wouldn't have the ability to provide for
health care.
So again, I thank you for the opportunity to have Mr. Gage
here today, and I look forward to working with you on some
innovative ideas that we can use across the Country.
Thank you.
The Chairman. Senator Murkowski, thank you very much.
I have been doing some listening sessions around the
Country with Indian tribes and members of tribes, just to
listen and talk. My impression is that methamphetamine,
substance abuse, mental health services, so many areas are in
desperate need of resources and restructuring in order to
properly deliver health care services to those for whom we have
a trust responsibility.
We have had people come who say, tribal chairs who say we
understand in our tribe, do not get sick after June 1, because
there is no contract health care money available. That is what
happened to the woman that was hauled into a hospital having a
heart attack, with a piece of paper taped to her thigh that
says, ``If you admit her, you are on your own because there is
no contract health services available.''
Because they didn't consider it life or limb, whoever it
was that put her in the ambulance.
It is pretty unbelievable. I had a tribal Chairman testify
that in their tribe they ran out of contract health care money
in January. Think of that, in January, 3 months after the year
begins. And that means that the only way you get help is if
your life is at stake or you at stake of losing a limb.
Otherwise, I am sorry.
We had people sit at this table who I talked earlier about
a woman with a very serious torn ligament in her knee, is told,
wrap it in cabbage leaves for four days. A rancher, an Indian
rancher has a torn ligament in his shoulder, something that
most Americans would go to a doctor for and get fixed, and 4
years, 4 years before he was finally referred to get help,
because of the lack of contract health care funds. The only way
he got help was a doctor finally said, ``What can a one-armed
rancher do?'' And they finally put him on a priority list to
get help for something most Americans would expect to get
resolved in a few months. So we just have real challenges here.
Chairman Brannan, you know, your discussion today with the
photographs is heartbreaking. It reminded me of one of the
things that got me really passionately involved in this issue.
It was a little girl I have spoken of previously named Tamara.
She was put in a foster home by a social worker who was
handling 150 cases. Well, it turns out the foster home for this
3-year old girl was not safe. A drunken party on a Saturday
night, and little Tamara had her hair pulled out by its roots,
her arm broken, her nose broken. She will live with those scars
forever.
I met with her and her grandfather some months later. It
was just heartbreaking to know what happened to this young
girl, because one social worker had to handle 150 cases. She
didn't go check out where she was going to put the 3-year old
kid.
We have so many unbelievable problems that really need
resources. It is not all about money. It is about
restructuring, commitment to do the right thing. This is not
about somebody asking us. This is about our trust
responsibilities. We have trust responsibilities, and our
requirement is to meet them.
I am determined in this committee, working with my
colleagues, to pass a reauthorization of the Indian Health Care
Improvement Act that updates, revitalizes this piece of
legislation, and gives us a chance to do something different.
We will build on the successes, Mr. Gage. I understand the
testimony about what works, but I also understand the testimony
about what is left and what is not being done.
So I think I will defer questions and just say, Chairman
Brannan, I understand your passion. I really appreciate your
getting here. I didn't realize that you left Denver and had to
fly to Los Angeles to get to Washington, DC, but that happens
with airlines, as you know.
Ms. Joseph, you have worked a long while on this. We
appreciate it.
Mr. Lazarus, the committee would like to call on you and
work with you. I don't understand why the Department of Justice
seems to go out of its way to interpret problems here, but they
seem to. I want to cooperate with the Department of Justice,
and I want them to cooperate with us.
I do want to make a comment. At the end of the day in the
last Congress, I said it was fine to go ahead and put the
skeleton of the bill that was left, and I said that was fine. I
put a statement in the record that explained the problems with
it and why I felt it fell far short. But I don't like what
happened at the end of the last session because it didn't meet
our needs and what we were trying to do.
Mr. Gage, you have traveled perhaps more miles than anyone
to be here and to tell us the stories. Senator Murkowski
continues to tell us that story. Unless you live in Alaska, you
probably can't understand what problems distance causes for
virtually the delivery of all services, but we appreciate your
being here as well.
So thank you very much for testifying.
This committee is adjourned.
[Whereupon, at 11:29 a.m. the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of John Agwunobi, Assistant Secretary for Health,
Department of Health and Human Services
Mr. Chairmen and members of the committee: My name is John Agwunobi
and I am the assistant secretary for Health for the Department of
Health and Human Services [HHS]. As the assistant secretary, I serve as
the Secretary's primary adviser on matters involving the Nation's
public health. I also oversee the U.S. Public Health Service and its
Commissioned Corps for the Secretary.
This landmark legislation forms the backbone of the system through
which Federal health programs serve American Indians/Alaska Natives and
encourages participation of eligible American Indians/Alaska Natives in
these and other programs.
The IHS has the responsibility for the delivery of health services
to more than 1.8 million federally recognized American Indians/Alaska
Natives through a system of IHS, tribal, and urban [FT/U] health
programs governed by judicial decisions and statutes. The mission of
the agency is to raise the physical, mental, social, and spiritual
health of American Indian/Alaska Natives to the highest level, in
partnership with the population we serve. The agency goal is to assure
that comprehensive, culturally acceptable personal and public health
services are available and accessible to the service population. Our
duty is to uphold the Federal Government's responsibility to promote
healthy American Indian and Alaska Native people, communities, and
cultures and to honor and protect the inherent sovereign rights of
tribes.
Two major statutes are at the core of the Federal Government's
responsibility for meeting the health needs of American Indians/Alaska
Natives: The Snyder Act of 1921, Public Law 67-85, and the Indian
Health Care Improvement Act [IHCIA], Public Law 94-437, as amended. The
Snyder Act authorized regular appropriations for ``the relief of
distress and conservation of health'' of American Indians/Alaska
Natives. The IHCIA was enacted ``to implement the Federal
responsibility for the care and education of the Indian people by
improving the services and facilities of Federal Indian health programs
and encouraging maximum participation of Indians in such programs.''
Like the Snyder Act, the IHCIA provides the authority for the Federal
Government programs that deliver health services to Indian people, but
it also provides additional guidance in several areas. The IHC1A
contains specific language addressing the recruitment and retention of
health professionals serving Indian communities; the provision of
health services; the construction, replacement, and repair of health
care facilities; access to health services; and, the provision of
health services for urban Indian people.
Since enactment of the IHCIA in 1976, Congress has substantially
expanded the statutory authority for programs and activities in order
to keep pace with changes in health care services and administration.
Federal funding for the IHCIA has contributed billions of dollars to
improve the health status of American Indians/Alaska Natives. And, much
progress has been made particularly in the areas of infant and maternal
mortality.
The Department under this Administration's leadership reactivated
the Intra-departmental Council on Native American Affairs [ICNAA] to
provide for a consistent HHS policy when working with the more than 560
federally recognized tribes. This Council's vice chairperson is the IHS
Director, giving him a highly visible role within the Department on
Indian policy.
In January 2005 the Department completed work ushering through a
revised HHS tribal consultation policy and involving tribal leaders in
the process. This policy further emphasizes the unique government-to-
government relationship between Indian tribes and the Federal
Government and assists in improving services to the Indian community
through better communications. Consultation may take place at many
different levels. To ensure the active participation of tribes in the
development of the Department's budget request, an HHS-wide budget
consultation session is held annually. This meeting provides tribes
with an opportunity to meet directly with leadership from all
Department agencies and identify their priorities for upcoming program
requests. For fiscal year 2008, tribes identified population growth and
increases in the cost of providing health care as their top budget
priorities and IHS's fiscal year 2008 budget request included an
increase of $88 million for these items.
Through the Centers for Medicare & Medicaid Services [CMS], a
Technical Tribal Advisory Group was established which provides tribes
with a vehicle for communicating concerns and comments to CMS on
Medicare, Medicaid and SCHIP policies impacting their members. And, the
IHS has been vigilant about improving outcomes for Indian children and
families with diabetes by increasing education and physical activity
programs aimed at preventing and addressing the needs of those
susceptible to, or struggling with, this potentially disabling disease.
In addition, a tribal leaders diabetes committee continues to meet
several times a year at the direction of the IHS Director to review
information on the progress of the Special Diabetes Program for Indians
activities and to provide general recommendations to IHS.
It is clear the Department has not been a passive observer of the
health needs of eligible American Indians/Alaska Natives. Yet, we
recognize that health disparities among this population do exist and
are among some of the highest in the Nation for certain diseases [for
example; alcoholism, cardiovascular disease, diabetes, and injuries],
and that improvements in access to IHS and other Federal and private
sector programs will result in improved health status for Indian
people.
The IHCIA was enacted to provide primary and preventive services in
recognition of the Federal Government's unique relationship with
members of federally recognized tribes. Members of federally recognized
tribes and their descendants are also eligible for other Federal health
programs [such as Medicare, Medicaid, and SCHIP] on the same basis as
other Americans, and many also receive health care through employer-
sponsored or other health care coverage.
It is within the context of current law and programs that we turn
our attention to reauthorization of the ``Indian Health Care
Improvement Act.''
We are here today to discuss reauthorization of the IHCIA, and its
impact on programs and services provided for in current law. In
December 2006, the Department submitted to this committee comments on
proposed legislation that the 109th Congress was considering. These
comments are the basis for our testimony today, and any changes
introduced by the bill under review in the 110th Congress will be
considered once we have had an opportunity to review newly introduced
legislation. Improving access to health care for all eligible American
Indians and Alaska Natives is a priority for all those involved in the
administration of the IHS program. We have worked closely with this
committee in the past and we have made progress in moving toward a
program supportive of existing authority while maintaining the
Secretary's flexibility to effectively manage the HIS program. However,
in the last bill, S. 1057, there continued to be provisions which could
negatively impact our ability to provide needed access to services.
Such provisions established program mandates and burdensome
requirements that could, or would, divert resources from important
services. To the extent that those provisions are included in the new
legislation, we hope to work with you to continue to address these
concerns.
The Department is supportive of reauthorization of the IHCIA and
supports provisions that maintain or increase the Secretary's
flexibility to work with tribes, and to increase the availability of
health care. Committee leadership previously responded to some concerns
raised about certain provisions and some of the changes went a long way
toward improving the Secretary's ability to effectively manage the
program within current budgetary resources.
I would like to note for you today our particular interest in
provisions previously reported out of this committee.
We have a number of general objections to previous language,
including, expanded requirements for negotiated rulemaking and
consultation; new requirements using ``shall'' instead of ``may''; use
of the term ``funding'' in place of ``grant''; expansion of authorities
for Urban Indian Organizations; new permissive authorities; provisions
governing traditional health care practices; new reporting
requirements; establishment of the Bipartisan Commission on Indian
Health Care; and new provisions that contemplate the Secretary
exercising authority through the service, tribes and tribal
organizations which is not tied to agreements entered into under the
Indian Self-Determination and Education Assistance Act [ISDEAA]. In
addition, we noted concerns in previous language about modifying
current law with respect to Medicaid and the State Children's Health
Insurance Program [SCHIP] and, in some cases, we believe maintaining
the current structure of Medicaid and the State Children's Health
Insurance Program [SCHIP] preserves access, delivery, efficiency, and
quality of services to American Indians.
We also have some more specific comments on proposals we have
previously reviewed for comment.
In the area of behavioral health, proposed title VII provisions
provided for the needs of Indian women and youth and expands behavioral
health services to include a much needed child sexual abuse and
prevention treatment program. The Department supports this effort, but
opposes language in sections 704, 706, 711 (b) and 712 that requires
the establishment or expansion of specific additional services. The
Department should be given the flexibility to provide for all
Behavioral Health Programs in a manner that supports the local control
and priorities of tribes, and to address their specific needs within
IHS overall budgetary levels.
The last version of S. 1057 that we reviewed contained various new
requirements for reporting to Congress, including requirements for
specific information to be included within the President's Budget and a
new annual report to Congress by the Centers for Medicare & Medicaid
Services and the IHS on Indians served by Social Security Act health
benefit programs. The IHS, CMS, and HHS will work with Congress to
provide the most complete and relevant information on IHS programs,
activities, and performance and other Indian health matters. However,
we recommend striking language that requires additional specificity
about what should be included in the President's budget request and new
requirements for annual reports.
Sanitation facilities construction is conducted in 38 States with
federally recognized tribes who take ownership of the facilities to
operate and maintain them once completed. IHS and tribes operate 49
hospitals, 247 health centers, 5 school health centers, over 2000 units
of staff housing, and 309 health stations, satellite clinics, and
Alaska village clinics supporting the delivery of health care to Indian
people.
One provision in last year's bill, section 301(d) (1), required
Government Accountability Office [GAO] to complete a report, after
consultation with tribes, on the needs for health care facilities
construction, including renovation and expansion needs. However,
efforts are currently underway to develop a complete description of
need similar to what would have been required by the bill. The IHS plan
is to base our future facilities construction priority system
methodology application on a more complete listing of tribal and
Federal facilities needs for delivery of health care services funded
through the IHS. We will continue to explore with the tribes less
resource intensive means for acquiring and updating the information
that would be required in these reports.
We recommend the deletion of the reference to the Government
Accountability Office undertaking the report because it would be
redundant of and a setback for IHS's current efforts to develop an
improved facilities construction methodology.
Retroactive funding of Joint Venture Construction Projects In last
year's bill, section 311 (a)(1) would permit a tribe that has ``begun
or substantially completed'' the process of acquisition of a facility
to participate in the Joint Venture Program, regardless of government
involvement or lack thereof in the facility acquisition. A Joint
Venture Program agreement implies that all parties have participated in
the development of a plan and have arrived at some kind of consensus
regarding the actions to be taken. By permitting a tribe that has
``begun or substantially completed'' the process of acquisition or
construction, the proposed provisions could force IHS to commit the
government to support already completed actions that have not included
the government in the review and approval process. We are concerned
that this language could put the government in the position of
accepting space that is inefficient or ineffective to operate. We,
therefore, would oppose such a provision.
Another section 302(h) (4) would provide ambiguous definitions of
the sanitation deficiencies used to identify and prioritize water and
sewer projects in Indian country. As previously proposed ``deficiency
level III'' could be interpreted to mean all methods of service
delivery [including methods where water and sewer service is provided
by hauling rather than through piping systems directly into the home]
are adequate to meet the level III requirements and only the operating
condition, such as frequent service interruptions, makes that facility
deficient. This description assumes that water haul delivery systems
and piped systems provide a similar level of service. We believe it is
important to distinguish between the two.
In addition, the definition for deficiency level V and deficiency
level IV, though phrased differently, have essentially the same
meaning. Level IV should refer to an individual home or community
lacking either water or wastewater facilities, whereas, level V should
refer to an individual home or community lacking both water and
wastewater facilities.
We recommend retaining current law to distinguish the various
levels of deficiencies which determine the allocation of existing
resources.
Yet another section 305(b) (1) would amend current law to set two
minimum thresholds for the Small Ambulatory Program--one for number of
patient visits and another for the number of eligible Indians. In order
to be eligible for the Small Ambulatory Program under the previously
proposed criteria, a facility must provide at least 150 patient visits
annually in a service area with no fewer than 1,500 eligible Indians.
Aside from the fact that these are both minimum thresholds and so
somewhat contradictory, the proposed provisions would make
implementation difficult. First, the IHS cannot validate patient visits
unless the applicant participates in the Resource Patient Management
System [RPMS]. Since some tribes do not participate in the RPMS, it is
difficult to ensure a fair evaluation of all applicants. Second, the
term ``eligible Indians'' refers to the census population figures,
which cannot be verified, since they are based on the individual's
statement regarding ethnicity.
In addition, we are concerned about the requirements for negotiated
rulemaking and increased requirements for consultation in the bill
because of the high cost and staff time associated with this approach.
We are committed to our on-going consultation with tribes under current
executive orders, as well as using the authority of chapter V of title
5, U.S.C. [commonly known as the Administrative Procedures Act] to
promulgate regulations where necessary to carryout IHCIA.
The comments expressed today in this testimony do not represent a
comprehensive list of our current concerns. And, we will be reviewing
legislation introduced in this Congress for any provisions that might
be addressed in the future.
I reiterate our commitment to working with you to reauthorize the
Indian Health Care Improvement Act, and the strengthening of Indian
health care programs. And we will continue to work with the committee,
other committees of Congress, and representatives of Indian country to
develop a bill that all stakeholders in these important programs can
support. Again, I appreciate the opportunity to appear before you today
to discuss reauthorization of the ``Indian Health Care Improvement
Act'' and I will answer any questions that you may have at this time.
Thank you.
______
Prepared Statement of C. Frederick Beckner III, Deputy Assistant
Attorney General, Civil Division Department of Justice
Mr. Chairman, members of the committee, my name is C. Frederick
Beckner III. I am a deputy assistant attorney general for the Civil
Division of the Department of Justice. Thank you very much for the
opportunity to share the views of the Department of Justice on the
reauthorization of the Indian Health Care Improvement Act. As of today,
the Department of Justice has not had the opportunity to fully review
the most current version of the proposed legislation, and we are not,
therefore, in a position to provide specific comments on this
legislation.
That said, the Department of Justice strongly supports the laudable
objectives of improving health care for American Indians and Alaska
Natives, and the Department looks forward to working with the committee
to achieve these goals. The Department worked extensively with this
committee and met with representatives of the American Indian community
on a prior version of this legislation. We expect that this cooperative
relationship will continue as the Department reviews the current
legislation.
In commenting on the prior legislation, the Department identified
targeted concerns that could be--and for the most part were--addressed
with relatively modest changes to the legislation that did not detract
from the overall goal of improving health care for American Indians and
Alaska Natives. Indeed, in the Department's view, the changes benefited
both the American Indian community specifically and taxpayers
generally.
For example, in an earlier version of proposed legislation, the
Department of Health and Human Services and Indian tribes could enter
into self-determination contracts that cover tribal ``traditional
health care practices.'' Such practices are unique to American Indian
tribes and cannot be evaluated by established standards of medical care
recognized by the state. However, to the extent that these traditional
health care practices were being provided by an Indian tribe under a
self-determination contract, a party injured by such a practice could
potentially sue the United States under the Federal Tort Claims Act
[known as the ``FTCA''] and expose taxpayers to unwarranted liability.
It is a basic tenet of the FTCA that the United States is liable in
tort only ``under circumstances where the United States, if a private
person, would be liable to claimant in accordance with the law of the
place where the act or omission occurred.'' Case law has defined ``the
law of the place'' to mean State law, not Federal law, not tribal law.
The Department was thus concerned that the bill would require the
Department to litigate tort claims with no meaningful way to defend the
cases. In particular, the Department was concerned that it would not be
able to defend such suits because the courts might conclude that tribal
health practitioners were providing ``medical'' services that, by
definition, do not comply with the standards of the relevant State's
medical community. Consequently, we met with the American Indian
community and worked extensively with the committee late last year to
add language that would have clarified that the United States, and
ultimately the taxpayers, would not be liable for malpractice claims
under the FTCA arising out of the provision of traditional health care
practices. This language would not have impacted tort suits against the
United States for any other service provided under self-determination
contracts.
The Department also expressed its concern regarding a provision
that would have extended FTCA coverage to persons who are providing
home-based or community-based services. Again, the Department stresses
that it has no objection to the act's goal of increasing the
availability of these services. However, these services are sometimes
provided by relatives and, in many instances, there are no established
standards for such layperson care or for the environment in which they
are provided. Thus, the United States should not have to defend
against, nor should the taxpayers be required to pay for, negligent or
wrongful conduct by such individuals performing home-based or
community-based services that are not subject to any standards of care.
To address these concerns, the Department worked with committee staff
on language that would have clarified that the home-based or community-
based services that can be provided under self-determination contracts
are those for which the Secretary of the Department of Health and Human
Services had developed meaningful standards of care.
The Department expressed concerns in previous versions of the bill
regarding the possibility of unlicensed individuals providing mental
health treatment to Indians and Alaska Natives. In the previous version
of the bill, the Department worked with the committee to add language
that would have ensured the licensing requirement for providing mental
health services, and we believe the change was in the interest of both
the United States and the Indian community.
Finally, the Department noted its concern that the previously
proposed legislation may raise a significant constitutional issue. We
had previously attempted to work with the committee to address this
concern, but unfortunately, resolution was not attained. Most of the
programs authorized by current law or that would have been authorized
by the previously proposed legislation tied the provision of benefits
to membership in a federally recognized Indian tribe, and courts would
therefore likely uphold them as constitutional. The Supreme Court has
held that classifications based on membership in a federally recognized
tribe are ``political rather than racial,'' and therefore will be
upheld as long as there is a rational basis for them. Morton v.
Mancari, 417 U.S. 535, 555 [1974]. Congress may have limited authority
in Indian affairs to provide benefits that extend beyond members of
federally recognized tribes to individuals such as spouses and
dependent children of tribal members [particularly in circumstances
where such children are not yet eligible for tribal membership], who
are recognized by the tribal entity as having a clear and close
relationship with the tribal entity. To regulate beyond such confines,
however, presents a risk that the statute may be subject to strict
scrutiny. To the extent that programs benefiting ``Urban Indians''
under current law or in the prior version of the bill could be viewed
as authorizing the award of grants and other government benefits on the
basis of racial or ethnic criteria, rather than tribal affiliation,
these programs would be subject to strict scrutiny under the
requirement of equal protection of the laws, as set out in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 235 [1995] and other cases.
For example, the statute and the previous reauthorization bill broadly
define ``Urban Indian'' to include individuals who are not necessarily
affiliated with a federally recognized Indian tribe, such as
descendants in the first or second degree of a tribal member, members
of state recognized tribes, and any individual who is ``an Eskimo,
Aleut, or other Alaskan Native.'' Under the Supreme Court's decisions,
there is a substantial likelihood that legislation providing special
benefits to individuals of Indian or Alaska Native descent based on
something other than membership or equivalent affiliation with a
federally recognized tribe would be regarded by the courts as a racial
classification subject to strict constitutional scrutiny, rather than
as a political classification subject to rational basis review. This
distinction is important, because if the legislation awards government
benefits on grounds that trigger strict scrutiny, courts may uphold the
legislation as constitutional only upon a showing that its use of race-
based criteria to award the subject benefits is ``narrowly tailored''
to serve a ``compelling'' governmental interest.
In closing, the Department believes that any proposed legislation
regarding Indian health care is important and significant, and we are
grateful for the opportunity to share our views with the Committee. As
we have in the past, we look forward to working with the Committee on
this important piece of legislation.
______
Prepared Statement Hon. Tom A. Coburn, M.D., U.S. Senator from Oklahoma
Chairman Dorgan, Vice Chairman Thomas, I thank you for conducting
this hearing today.
There is no more important issue before this committee than that of
health care for tribal citizens. Reauthorization of the Indian Health
Care Improvement Act is long overdue, and it is incumbent upon this
Congress to finish this critical work.
As many of you know, I opposed the most recent version of this
legislation introduced in the 109th Congress. I did so reluctantly, but
with a firm conviction that business as usual is no longer acceptable.
As Members of Congress, as tribal leaders, and citizens of this
country--everyone in this room today--we can longer tell tribal
citizens that the current system of health care delivery in Indian
country is tolerable. A system that turns away those most in need, and
that rewards bureaucracies and punishes innovation, cannot be allowed
to persist. I will oppose any plan that advances more of the same.
To those who say that a failure to reauthorize the Indian Health
Care Improvement Act is a violation of our trust obligations, I agree.
I would argue, however, that simply reauthorizing the same old system
with minor modification is an ever greater violation of that
commitment.
I have met with dozens of tribal leaders over the past 2 years, and
not one has expressed enthusiasm for the current structure. Instead, I
hear a constant and consistent theme of frustration, anger, and resolve
that we must do better, that we must unlock the potential of tribes to
design their own health care systems that recognize the unique needs of
the community. I desire a system that maintains the flexibility of
tribes to seek outside investment, and that rewards innovative health
practices, instead of punishing those whose try to make the lives of
their citizens better.
The myriad of problems facing health care in Indian country, are
many of the same issues confronting health care delivery throughout
rural America. They are compounded, however, by a system that refuses
to recognize its own role in holding back health care delivery for
tribal citizens.
In designing health care reform, we know that markets work when we
allow them to: They lower the price of all goods and services and they
attract much needed outside investment. Many tribes in my state are at
the forefront of new and innovative health care delivery systems, and
they are poised to become a model for delivery throughout the system.
We must ensure, however, that their efforts aren't discouraged or
stopped altogether by the current system. Furthermore, there is no good
reason that forward thinking tribal governments should be prevented
from developing market driven health care centers of excellence that
will attract researchers, physicians and patients for cutting edge,
life-saving treatments.
I also believe that individual patients tend to receive better,
more effective care when they are empowered to make their own health
care decisions. In future legislation, we must explore ways to
accomplish this objective, and give tribal citizens a reason to invest
in their own health. Long lines, bureaucratic headaches and rationed,
substandard care completely disallow this sort of investment.
I am also hopeful the committee will consider a demonstration
project that will allow tribal citizens to receive health care at any
Medicare approved facility. While this will not provide the panacea we
are all hoping for, in more developed regions, it will inject
competition into a sector that desperately needs it.
While we may encounter differences on the specific steps, there can
no be no doubt that we all agree on the urgent need to deliver higher
quality health care in Indian country. To that end, I look forward to
working with my colleagues in bringing about a system that upholds our
commitments and best serves all tribal citizens.
Chairman Dorgan, Vice Chairman Thomas, thank you again for holding
this important hearing.
______
Prepared Statement of Terry L. Hunter, Chief Executive Officer Oklahoma
City Indian Clinic
The Reauthorization of the Indian Health Care Improvement Act March
22, 2007 The reauthorization of the Indian Health Care Improvement Act
[IHCIA] is vital to the health care of all American Indians. The law
first enacted in 1976 and reauthorized in 1988, and 1992 must be
reauthorized to meet today's health care standards enjoyed by most
Americans. The original bill established 34 urban Indian clinics and
with the passage of the Indian Self-Determination Education and
Assistance Act tribes began to operate their own health care delivery
systems. Due to the emergence of these two critical health care
delivery systems the Indian Health Care Improvement Act must be
reauthorized to address today's health care delivery issues. As one of
the original 34 urban Indian clinics funded by the Indian Health care
Improvement Act, the Oklahoma City Indian Clinic offers its testimony
as an example of how the Clinic is not duplicating service, and how the
Oklahoma City Indian Clinic patients could not be absorbed by the
county, city or community clinics system.
Prior to the 1950's, most American Indians resided on reservations,
in nearby rural towns, or in tribal jurisdictional areas. In the era of
the 1950's and 1960's, the Federal Government passed legislation to
terminate its legal obligations to Indian tribes, resulting in policies
and programs to assimilate Indian people into the mainstream of
American society. This philosophy produced the Bureau of Indian Affairs
[BIA] Relocation/Employment Assistance Programs which enticed Indian
families living on impoverished Indian Reservations to ``relocate'' to
various urbanized areas across the country. BIA relocation offered job
training and placement, and was presented as a way to escape rampant
poverty on the reservation.
In 1976, the American Indian Policy Review Commission, established
by the Congress estimated that as many as 160,000 American Indians and
Alaska Natives were relocated to urban centers. While many Indian
families did well in the cities, thousands found themselves without
basic services, especially health care. As identified by the 2000
census, 66 percent of all American Indians identified reside off-
reservation.
We believe that for a true understanding of the health care status
of American Indians living in urban areas, it is essential to realize
that the Synder Act of 1921, which mandated federally funded Indian
health care programs, did not require tribal members to live on
reservation lands in order to access health care services. Nor did it
stipulate a responsibility to provide health care off-reservation.
Thus, any American Indian that did not live on tribal land were
compelled to return to their rural communities to access health care
guaranteed to them by their status as members of federally recognized
tribes. A return that often was made difficult due to economic
deprivation-based barriers to transportation options.
In order to address the expanding problem of lack of access to
basic health care, a number of urban communities established volunteer
Indian centers and free health clinics. hi the late 1960's, urban
Indian community leaders advocated at the local, State and Federal
levels for culturally appropriate health programs that addressed the
unique social, cultural and health needs of American Indians residing
in urban settings. These community-based grassroots efforts resulted in
programs that targeted health and outreach services to the Indian
community. Programs that were developed at that time were in many cases
staffed by volunteers, offering limited primary care and maintaining
programs in storefront settings with comparatively minuscule budgets.
These remained small local efforts, and until 1976 urban Indians
continued to be largely neglected by the Federal health system.
In response to the efforts of the urban Indian community leaders in
the 1960's, Congress appropriated funds in 1966, through IHS for a
pilot urban Indian clinic in Rapid City. In 1973, Congress appropriated
funds to study unmet urban Indian health needs in Minneapolis. The
findings of this study documented cultural, economic, and access
barriers to health care and led to congressional appropriations under
the Snyder Act to support emerging Urban Indian clinics in several BIA
relocation cities.
The 1976 Indian Health Care Improvement Act [IHCIA] provided
authority for urban health programs through provisions under title V.
This authorized IHS to provide funding to health programs serving urban
Indian populations. The enactment of title V was a pivotal turning
point for urban Indian health programs across the Nation. Title V
targeted specific funding for the development of programs for American
Indians who lived in urban areas. Since passage of this landmark
legislation, amendments to title V have strengthened urban programs to
expand medical services, HIV services, health promotion and disease
prevention services, as well as mental health services, and alcohol and
substance abuse services.
It is from this richly complex environment that the Oklahoma City
Indian Clinic [OKCIC] was established in 1974 as an Indian-controlled,
nonprofit corporation with the sole purpose of serving the health care
needs of American Indians in central Oklahoma. In the beginning, like
other programs mentioned above, the clinic's volunteer staff operated
in cramped, antiquated facilities, and was dependent upon donated
medical supplies and equipment. But after the 1976 Indian Health Care
Improvement Act was enacted, the Clinic enjoyed recognition and support
of the Federal Government and the resources that followed.
The Native American population of Oklahoma is second only to that
of the most populated State, California. The 2000 Census indicated that
391,949 Oklahomans identified their race as Indian when given the
opportunity to indicate either full or partial heritage. It is
estimated that over 50,000 American Indians live in central Oklahoma.
There are 39 federally recognized tribal governments in Oklahoma alone,
with all tribal governments being located on tribal lands in rural
areas, where they generally have access to health care services through
IHS and tribally operated health care systems.
In 1995 the Oklahoma City Indian Clinic began serving patients from
its new 27,000 square foot Corinne Y. Halfmoon Medical Facility,
delivering a wide range of services, including medical, prenatal,
dental, pharmacy, optometry, as well as family, behavioral health and
substance abuse counseling and treatment. OKCIC provides x-ray,
ultrasound, lab and mammography services. Clinic patients make use of
diabetes and cardiovascular treatment and services, in addition to
health and nutrition education and preventative care services. OKCIC
serves over 16,000 patients from more than 225 federally recognized
tribes, employs diverse staff of approximately 90 people, and adheres
to IHS's Indian preference hiring policy.
The service population and overall utilization of services has
increased dramatically over the past 15 years. Total outpatient visits
for the Oklahoma City Indian Clinic has increased from less than 20,000
in 1992, to more than 60,000 visits in 2006. During this timeframe the
Oklahoma City Indian Clinic achieved national accreditation with the
Accreditation Association for Ambulatory Health Care [AAAHC].
The current Oklahoma City metropolitan health care system does not
have the capacity to absorb the Oklahoma City Indian Clinic patient
load without overwhelming the hospital emergency rooms. It is
imperative that the urban Indian health programs authorized under title
V be allowed to continue as a vital part of the Indian Health Service
health care delivery system.
The mission of the Oklahoma City Indian Clinic is driven by our
patient's needs and our ability to meet those needs. The Oklahoma City
Indian Clinic plays a vital role in IHS health care delivery system.
H.R. 4818, the Consolidated Appropriations Act, 2005, stipulates under
the ``Administrative Provisions, Indian Health Services'' section
that''
Notwithstanding any other provision of law, the Tulsa and
Oklahoma City Clinic demonstration projects shall be permanent
programs under the direct care program of the Indian Health
Service; shall be treated as service units and operating units
in the allocation of resources and coordination of care; shall
continue to meet the requirements applicable to an urban Indian
organization under this title; and shall not be subject to the
Indian Self-Determination and Education Assistance Act [25
U.S.C. 450 et seq.].
With the adoption of this language and after 30 years of providing
health care to Indians residing in Oklahoma City, OKCIC will continue
to provide quality health care to its eligible population. The
Reauthorization is critical in meeting the health needs of all Indians.
With 66 percent of the American Indians now residing in urban areas an
increase in the Urban Title V of the IHCIA would assist in meeting the
great disparity in urban health funding.
As the committee deliberates the reauthorization of the IHCIA, we
ask Congress to maintain the existing language concerning the Oklahoma
City Indian Clinic so that our patients will continue to receive high
quality health care. The Oklahoma City Indian Clinic's provision of
concern is with the deletion of section 124 (b), which exempts National
Health Service Corps [NHSC] scholars qualifying for the U.S. Public
Health Service Commissioned Corps to be exempt from the NHSC and IHS
full time equivalent [FTE] limitations when serving at a Tribal or
urban Indian program. The placement of Commissioned Corps officers at
these sites without FTE limitations is a vital health professional
recruitment tool, and thus the NSC recommends that Section 124(b) be
reinserted.
In addition, the Oklahoma City Indian Clinic supports the testimony
of Rachel Joseph, cochairperson of the National Steering Committee for
the Reauthorization of the Indian Health Care Improvement Act. Before a
hearing of the Senate Committee on Indian Affairs presented March 8,
2007.
______
Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii
Thank you, Mr. Chairman. I commend the committee for holding this
hearing today.
Indian tribes purchased the first pre-paid health plan in this
Nation when they ceded 550 million acres of tribal lands to the United
States in exchange for the United States'commitment to provide health
care in perpetuity.
This contract was largely accomplished through treaties between the
United States and Sovereign Tribal Governments. However, it is
important to note there are other sources of authority for the
Government's responsibility to provide health care services to Indian
Nations and their citizens.
In 1976 the Indian Health Care Improvement Act was enacted into law
for the specific purpose of raising the health status of America's
Native peoples. While the condition of Indian health care has improved,
we can do better.
American Indians and Alaska Natives born today have a life
expectancy that is 2.4 years less than others in the United States.
They die from tuberculosis, alcoholism, motor vehicle accidents,
diabetes, homicide, and suicide at higher rates than other Americans.
In each Congress we have introduced legislation to address these
conditions by improving programs and services with the goal of assuring
that all Native peoples have full and timely access to quality health
care.
However, I am concerned about assertions that some of the programs
and services under the Indian Health Care Improvement Act are based on
race--assertions that are not accurate.
These programs and services are based upon the government to
government relationship that Presidents Nixon, Bush, Carter, Reagan,
Clinton and Bush have all consistently reaffirmed as the United States'
Fundamental Federal-Indian Policy.
Furthermore, the U.S. Constitution recognizes tribal governments as
sovereign governments. In Article 1, Section 8, Clause 3. The Congress
is vested with the authority to conduct relations with the several
States, Foreign Nations and Indian Tribes.
Therefore, this bill should not be viewed as race-based, but rather
as legislation by which Congress is exercising its authority to address
deficient health care conditions in Indian country.
I commend my colleagues, in particular Senator Dorgan, for holding
this hearing on a bill that provides crucial health care programs and
services to Indian country. I look forward to furthering this important
initiative.
______
Prepared Statement of Hon. Jon Tester, U.S. Senator from Montana
Thank you Mr. Chairman, first, let me thank you for introducing
this legislation and holding this hearing. I continually hear from my
friends in Montana that Indians are struggling to access health care. I
am saddened with every new story.
All of us on the committee have heard from our constituents that
tell us about the perils of getting sick or injured if you're Indian in
this country. For example, most Indians know, ``Don't get sick after
July'' because the local clinic is out of money by then.
Or, how about the situation where budgets only allow service for
life or limb-threatening injuries?
Mr. Chairman, this just doesn't make sense!
As parents, we preach to our children the importance of
preventative medicine. We tell our children how important it is to pay
attention to their bodies and address health issues as soon as they are
aware of potential problems.
In other areas, we urge our citizens not to wait until they notice
health problems. We encourage them to test their bodies for cancer and
other threatening illnesses, even before they notice problems.
Why should it be so drastically different for my friends living on
the Rocky Boy Reservation? Why are we telling Indians that their health
is not as important as the health of everybody else in this country?
Mr. Chairman, our grandfathers and great grandfathers signed
treaties with Indian people promising to provide, among other things,
health care in perpetuity. We have an obligation to Indian people and
we have an obligation to American taxpayers.
As you well know, an investment in health care is an investment in
our future. By investing money in health care, and encouraging good
health, we save money in the long-run. Waiting until a relatively
routine injury becomes life or limb-threatening--is absurd!
If doctors can solve a minor problem before it becomes a major
problem, we should provide them with resources to accomplish that goal.
If my friend in Browning gets sick in August, he should see a doctor!
For those reasons, I will support passage of this bill. I look
forward to working with you to make that happen. Thank you, Mr.
Chairman.
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