[Senate Report 107-170]
[From the U.S. Government Publishing Office]
Calendar No. 435
107th Congress Report
SENATE
2d Session 107-170
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TO ELEVATE THE POSITION OF DIRECTOR OF THE INDIAN HEALTH SERVICE WITHIN
THE DEPARTMENT OF HEALTH AND HUMAN SERVICES TO ASSISTANT SECRETARY FOR
INDIAN HEALTH, AND FOR OTHER PURPOSES
_______
June 24, 2002.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 214]
The Committee on Indian Affairs, to which was referred the
bill (S. 214) to elevate the position of Director of the Indian
Health Service within the Department of Health and Human
Services to Assistant Secretary for Indian Health, and for
other purposes, having considered the same, reports favorably
thereon with out amendment and recommends that the bill do
pass.
Purpose
The purpose of S. 214 is to elevate the position of the
Director of the Indian Health Service to the status of an
Assistant Secretary within the Department of Health and Human
Services. The bill establishes the Office of Assistant
Secretary for Indian Health in order to further the unique
government-go-government relationship between Indian tribes and
the United States, facilitate advocacy for the development of
Indian health policy, and promote consultation on matters
related to Indian health.
Background
In exchange for ceding millions of acres of land to which
Indian tribes held aboriginal title, the United States entered
into treaties with the Indian nations. Many of the treaties
provide that health care services would be provided to the
citizens of Indian nations. Some have asserted that these
contracts between the United States and Indian governments
represent the ``first pre-paid health care plan'' in America.
The Federal obligation for the provision of health care
services to Indians also arises out of the special trust
relationship between the United States and Indian tribes, which
reflects the authority found in Article I, Section 8, Clause 3
of the U.S. Constitution, and which has been given form and
substance by numerous treaties, Federal statutes, Supreme Court
decisions, and Executive Orders.
The first Federal statute authorizing the appropriation of
federal funds to carry out the United States' responsibilities,
including the provision of health care, to Indian people was
the Synder Act of 1921 (25 U.S.C. 13). The Snyder Act served as
the authorization for provision of health care services to
American Indians and Alaska Natives until 1976, when the Indian
Health Care Improvement Act (25 U.S.C. 1601 et seq.)
(``IHCIA'') became law. The IHCIA was the first comprehensive
statute specifically addressing the provision of health care to
Indians and the Federal administration of health care.
a. Evolution of the Indian Health Service
Prior to 1954, the Bureau of Indian Affairs within the U.S.
Department of the Interior was charged with carrying out the
United States' responsibility for the provision of health care
to Federally-recognized tribes and tribal members. However, in
1954, in response to increasing pressure from the public health
community that Indian health care responsibility should be
transferred to his authority, the Surgeon General, acting
through the Public Health Service (``PHS''), established the
Division of Indian Health (``DIH'') to administer the Indian
health program. In 1968, the Division became the Indian Health
Service (``IHS'') and operated as a subagency of other agencies
within the Public Health Service including the Health Resources
and Services Administration. In 1988, the Indian Health Service
was established as a separate agency within the Public Health
Service.
On October 1, 1995, the Department of Health and Human
Services (``DHHS'') reorganized its internal administrative
structure and the Indian Health Service, along with the other
agencies of the Public Health Service, became a separate
operating division of the Department. Presently, the Director
of the Indian Health Service is appointed by the President and
is subject to Senate confirmation pursuant to 25 U.S.C.
1661(a). Under current law, the IHS Director reports to the
DHHS Secretary through the Assistant Secretary for Health.
Since the 1995 reorganization, all agencies, operating
divisions, and programs within the Department, including those
previously part of the Public Health Service and under the
direction of the Assistant Secretary for Health, have been
required to report directly to the Secretary. Under the DHHS
restructuring, the position of Assistant Secretary for Health
was combined with the position of Surgeon General and the
Office of Public Health and Science (``OPHS'') was established.
The Assistant Secretary for Health directs the OPHS, serves as
the Secretary's senior advisor for public health and science,
and provides leadership and coordination across the Department
on public health and science issues.
A key component to the IHS health care system is the Public
Health Service's Commissioned Corps. The Corps was established
by the Congress in 1889 as part of the Marine Hospital Service,
which later became the Public Health Service. The original
mission of the Corps was to provide medical care to sick and
disabled naval and merchant seamen. While the Corps' duties
were expanded during the World War I and II, its original
mission now serves as the basis for its continuing status as a
uniformed service. The Surgeon General is statutorily
responsible for supervising the activities of the Commissioned
Corps. The Corps is also charged with providing technical and
financial assistance to a variety of other Federal agencies,
state, and local public health departments.
At the request of this Committee, the General Accounting
Office (GAO) conducted a study of the role of the Corps in the
Indian Health Service system. Corps officers have been assigned
to Indian health agencies since 1926 and the Corps continues to
provide many of the physicians, registered nurses, dentists,
pharmacists, engineers, and sanitarians in Indian health
facilities. As of August 1999, the Public Health Service
employed 5,936 Corps officers of which 2,204 or about 37%, are
assigned to the Indian Health Service.
Like its legislative predecessors in previous sessions of
the Congress. S. 214 seeks to honor the government-to-
government relationship between the United States and Indian
tribes, to provide the necessary leadership within the
Administration on Indian health issues, and to bring focus and
national attention to the health care status of American
Indians and Alaska Natives. The bill is intended to enhance the
Federal capacity to respond to the ongoing health crisis in
Indian country and the continuing frustrations of Indian
patients that their needs and concerns are not adequately
addressed under the current administration policy and budgetary
processes.
b. Indian health care and status of the IHS
The IHS employs approximately 15,320 employees or about 26%
of all DHHS personnel. The IHS is a comprehensive health care
delivery system operating nationwide through a variety of
health care facilities. The IHS provides care services directly
and through tribally contracted and operated health care
programs. Health services are also purchased from more than two
thousand private providers. As of 1998, the IHS system
consisted of 550 direct health care delivery facilities funded
through the IHS: 144 of these were directly operated by the IHS
and 406 were operated by tribes or tribal consortia.
These facilities include, among others, 49 hospitals, 214
health care centers, 280 health stations, seven school centers,
and 34 urban Indian health programs. Each year the IHS provides
health care services to 561 Indian tribes in 35 states and in
1998 provided services to 1.46 million American Indians and
Alaska Natives. In 1998, IHS and tribal hospitals registered
some 68,000 admissions and IHS and tribal direct health clinics
provided 7 million outpatient visits.
Previous legislative attempts to bring attention to Indian
health care needs and concerns within the Administration have
not succeeded, and have failed to halt the steady decline of
the IHS budget. The disparity between Indian and non-Indian
communities in Federal health care expenditures continues to
grow. Health expenditures for 1998 reflect a $3,383 per capita
outlay for non-Indians, compared with a $1,507 per capita
expenditure for Indians. The Committee believes that the
institutionalization of a senior policy official responsible
for Indian health within the DHHS is necessary to begin to
bring parity to Indian health care needs. S. 214 is intended to
complement and strengthen past Executive Orders recognizing the
government-to-government relationship between the United States
and the tribes.
One of the principal justifications for this legislation
has been past Administrations' failure to incorporate tribal
recommendations in the final budget request, despite tribal
participation throughout the budget process. As an example,
prior to the FY 1999 budget request, the tribes met with the
Administration to provide their input, but the FY 1999 budget
request was $153 million below the expected Presidential
request.
The tribes expressed disappointment that the President's FY
1999 budget requests for the IHS included only a 0.9% increase
over the FY 1998 budget levels. The IHS budget requested by the
Administration ignored factors such as the 3.8% inflation rate
of health care costs, mandatory cost increases for Federal
personnel as enacted through the Federal Pay Act, limited third
party cost collections (such as Medicaid, Medicare and private
insurance), a 2.1% annual service population increase, and
increasing chronic and acute care costs because of a lack of
screening, diagnosis and early treatment.
At current budget levels, the IHS estimates that it can
meet only 62% of tribal health care needs, as opposed to
tribes, who estimate that the current funding levels meet only
36% of their health care needs. These deficits are even more
disturbing in light of the fact that almost half the Indian
population is now under the age of 25, and half of those under
age five live in poverty. The gap between health care needs and
Federal funding levels has never been more apparent or more
critical. The growing and alarming disparity between the health
status of American Indians and Alaska Natives as compared to
other Americans is well documented. On May 20, 1998, the
Assistant Secretary of Health reported to the Committee on
Indian Affairs that Indians have the second highest infant
mortality rate in the United States, the lowest prenatal care
rate and lower breast and cervical cancer screening and
treatment rates because of limited access to screening and
treatment. In addition, Indian teen pregnancy rates are double
that of their white counterparts, cardiovascular disease
continues to be the leading cause of death, diabetes rates are
four to eight times the national average, and as many as 40% of
Indians over the age of 18 use tobacco.
c. The Role of the Assistant Secretary for Indian Health
Past Administrations have expressed a commitment to working
with the Congress to elevate the position of the Indian Health
Service Director to the rank of Assistant Secretary for Health
and Human Services.
During the 106th Congress, at a hearing of the Committee to
discuss the predecessor bill to S. 214, overwhelming evidence
was presented in support of the elevation of the Director of
the Indian Health Service to Assistant Secretary for Indian
Health. Witnesses who presented testimony included tribal
officials, health care providers, and the Administration. One
witness, summed it up this way,
``The IHS, the largest direct health care provider in
the Department of Health and Human Services (HHS),
should answer directly to the HHS Secretary to insure
that the issues that impact tribes are addressed.''
Testimony of W. Ron Allen, National Congress of
American Indians, before the Indian Affairs Committee,
August 4, 1999.
The Committee also recognizes the role of the Assistant
Secretary for Health (Surgeon General) in addressing the health
needs of all citizens of this country, including the American
Indian and Alaska Native populations. S. 214 does not alter the
important role the Assistant Secretary for Health (Surgeon
General) serves, particularly as principal adviser to the
Secretary of DHHS for public health matters affecting the
general population. It is the Committee's hope that a close
collaboration between the Assistant Secretary for Health and
the Assistant Secretary for Indian Health will be a model of
interagency cooperation and partnership and raise the health
status of American Indian and Alaska Natives.
S. 214 elevates the position of the IHS Director, but more
importantly, recognizes the unique government-to-government
relationship between Federally recognized Indian tribes and the
United States. The Assistant Secretary for Indian Health will
provide the necessary leadership and consultation to the
Secretary, the Assistant Secretary for Health, and others, on
the important health issues facing Indian people. S. 214
supports the Federal policy of tribal self-determination and
ensures that Indian people are heard and their concerns are
brought to the table when important policy and budget decisions
are made on their behalf.
The establishment of an Assistant Secretary for Indian
Health will ensure that there is at least one senior official
in current and future administrations who is knowledgeable
about the United States' legal and moral obligations to Indian
people, the mission of the IHS, and who has the status to
advocate within the DHHS and the Office of Management and
Budget (OMB) for the funding resources and policies that are
necessary to effectively and efficiently address the health
care needs and concerns of Indian people. S. 214 places this
important and special leadership role with the Assistant
Secretary for Indian Health.
S. 214, as introduced, closely resembles previous versions
of proposed legislation introduced in the last several
Congresses, which resulted from discussions with tribal leaders
and representatives of the DHHS.
Legislative History
S. 214 was introduced on January 30, 2001 by Senator McCain
for himself, and Senators Campbell, Inouye, Daschle, Johnson,
Reid, and Conrad, and was referred to the Committee on Indian
Affairs. S. 214 was ordered to be reported to the full Senate
on March 21, 2002.
Section-by-Section Analysis
Section 1. Office of Assistant Secretary for Indian Health.
Subsection (a) provides that the Office of Assistant
Secretary for Indian Health is established within the
Department of Health and Human Services.
Subsection (b) provides that the Assistant Secretary for
Indian Health shall report directly to the Secretary on all
policy and budget related matters affecting Indian health,
collaborate with the Assistant Secretary for Health on Indian
health matters, advise other Assistant Secretaries and others
within DHHS concerning matters of Indian health, perform the
functions of the Director of the Indian Health Service, and
other functions as designated by the Secretary of Health and
Human Services.
Subsection (c) provides that any references to the Director
of Indian Health Service in any other Federal law, Executive
order, rule, regulation, or delegation of authority, or any
document will be deemed to refer to the Assistant Secretary for
Indian Health.
Subsection (d)(1) provides a technical change to comply
with the section. The elevation of the Director of Indian
Health Service to Assistant Secretary would increase the number
of assistant secretaries to seven.
Subsection (d)(2) abolishes the position of the Director of
Indian Health Service.
Subsections (e)(1) and (e)(2) amend section 601 of the
Indian Health Care Improvement Act, 25 U.S.C. 1661, and other
Acts by deleting all provisions referring to ``the Director''
or ``Director of Indian Health Service'' and inserting in lieu
thereof ``the Assistant Secretary for Indian Health.''
Subsection (e)(3) further outlines and clarifies the duties
of Assistant Secretary for Indian Health.
Subsection (f) provides that the individual serving as the
IHS Director at the time of the enactment of this Act may
serve, at the pleasure of the President, as the Assistant
Secretary for Indian Health.
Subsection (g) provides for conforming amendments to other
statutes to comply with this Act.
Committee Recommendation and Tabulation of Vote
On March 21, 2001, the Committee on Indian Affairs, in an
open business session, considered S. 214. The bill, without
amendment, was ordered favorably reported with a recommendation
that the bill do pass.
Cost and Budgetary Considerations
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
The cost estimate for S. 214, as calculated by the
Congressional Budget Office, is set forth below:
S. 214--A bill to elevate the position of Director of the Indian Health
Service within the Department of Health and Human Services to
Assistant Secretary for Indian Health, and for other purposes
CBO estimates that enacting this bill would have no
significant effect on the federal budget. Because this bill
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply. S. 214 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would not affect the budgets
of state, local, or tribal governments.
S. 214 would establish the position of Assistant Secretary
for Indian Health in lieu of the current position of Director
of the Indian Health Service. The duties and responsibilities
of the office would not be changed significantly. The rate to
pay would increase from level V to level IV of the Executive
Schedule, an increase of $8,400. This change would not affect
the salary of the current Director of the Indian Health
Service, because his pay is governed by the pay structure of
the Public Health Service Commissioned Corps.
The CBO staff contact for this estimate in Eric Rollins.
This estimate was approved by Peter A. Fontaine, Deputy
Assistant Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee believes that
S. 214 will have minimal regulatory or paperwork impact.
Executive Communications
The Committee has received no official communication from
the Administration on the provisions of the bill.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that
enactment of S. 214 will result in the following changes in the
following statutes as noted below, with existing language which
is to be deleted in brackets and the new language which is to
be added in italic.
(1) Section 5315 of title 5, United States Code:
``Level IV of the Executive Schedule applies to the
following positions, for which the annual rate of basic pay
shall be the rate determined with respect to such level under
chapter 11 of title 2, as adjusted by section 5318 of this
title: Assistant Secretaries of Health and Human Services [(6)]
(7).''
(2) Section 5316 of title 5, United States Code:
``Level V of Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title: [Director,
Indian Health Service, Department of Health and Human
Services.]''
(3) Section 1661 of title 25 of the United States Code:
(a)(1) Establishment.--In order to more effectively and
efficiently carry out the responsibilities, authorities, and
functions of the United States to provide health care services
to Indians and Indian tribes, as are or may be on or after
November 23, 1988, provided by Federal statute or treaties,
there is established within the Public Health Service of the
Department of Health and Human Services the Indian Health
Service. The Indian Health Service shall be administered by [a
Director] the Assistant Secretary for Indian Health, who shall
be appointed by the President, by and with the advice and
consent of the Senate. [The Director of the Indian Health
Service shall report to the Secretary through the Assistant
Secretary for Health of the Department of Health and Human
Services. Effective with respect to an individual appointed by
the President, by and with the advice and consent of the
Senate, after January 1, 1993, the term of service of the
Director shall be 4 years. A Director may serve more than 1
term.] The Assistant Secretary for Indian Health shall carry
out the duties specified in paragraph (2).
(2) The Assistant Secretary for Indian Health shall--
(A) report directly to the Secretary concerning all
policy- and budget-related matters affecting Indian
health;
(B) collaborate with the Assistant Secretary for
Health concerning appropriate matters of Indian health
that affect the agencies of the Public Health Service;
(C) advise each Assistant Secretary of the Department
of Health and Human Services concerning matters of
Indian health with respect to which that Assistant
Secretary has authority and responsibility;
(D) advise the heads of other agencies and programs
of the Department of Health and Human Services
concerning matters of Indian health with respect to
which those heads have authority and responsibility;
and
(E) coordinate the activities of the Department of
Health and Human Services concerning matters of Indian
health.
(4) Section 601 of the Indian Health Care Improvement Act
(25 U.S.C. 1661):
(i) ``(c) The Secretary shall carry out through the
[Director of the Indian Health Service] Assistant Secretary for
Indian Health--
(1) all functions which were, on the day before
November 23, 1988, carried out by or under the
direction of the individual serving as Director of the
Indian Health Service Assistant Secretary for Indian
Health.''
(ii) ``(d)(1) The Secretary, acting through the [Director
of the Indian Health Service] Assistant Secretary for Indian
Health, shall have the authority--''
(B) Section 816(c)(1) of the Indian Health Care
Improvement Act (25 U.S.C. 1680f(c)(1): ``Cross
utilization of services (1) Not later than December 23,
1988, the [Director of the Indian Health Service]
Assistant Secretary for Indian Health and the Secretary
of Veterans Affairs shall implement an agreement under
which--* * *''
(5) Section 203(a)(1) of the Rehabilitation Act of 1973 (29
U.S.C. 763(a)(1)):
``(a) Establishment; membership; meetings, (1) In order to
promote coordination and cooperation among Federal departments
and agencies conducting rehabilitation research programs, there
is established within the Federal Government an Interagency
Committee on Disability Research (hereinafter in this section
referred to as the ``Committee''), chaired by the Director and
comprised of such members as the President may designate,
including the following (or their designees): the Director, the
Commissioner of the Rehabilitation Services Administration, the
Assistant Secretary for Special Education and Rehabilitative
Services, the Secretary of Education, the Secretary of Veterans
Affairs, the Director of the National Institutes of Health, the
Director of the National Institute of Mental Health, the
Administrator of the National Aeronautics and Space
Administration, the Secretary of Transportation, the Assistant
Secretary of the Interior for Indian Affairs, the [Director of
the Indian Health Service] Assistant Secretary for Indian
Health, and the Director of the National Science Foundation.''
(6) Subsections (B) and (E) of Section 518 of the Federal
Water Pollution Control Act (33 U.S.C. 1377 (b) and (e)):
``(b) Assessment of sewage treatment needs; report: The
Administrator, in cooperation with the [Director of the Indian
Health Service] Assistant Secretary for Indian Health, shall
assess the need for sewage treatment works to serve Indian
tribes, the degree to which such needs will be met through
funds allotted to States under section 1285 of this title and
priority lists under section 1296 of this title, and any
obstacles which prevent such needs from being met.''
``(e) Treatment as States: * * * Such treatment as a State
may include the direction provision of funds reserved under
subsection (c) of this section to the governing bodies of
Indian tribes, and the determination of priorities by Indian
tribes, where not determined by the Administrator in
cooperation with the [Director of the Indian Health Service]
Assistant Secretary for Indian Health. The Administrator, in
cooperation with the [Director of the Indian Health Service]
Assistant Secretary for Indian Health, is authorized to make
grants under subchapter II of this chapter in an amount not to
exceed 100 percent of the cost of a project. * * *''
(7) Section 803B(d)(1) of the Native American Programs Act
of 1974 (42 U.S.C. 2991b-2(d)(1)):
``(d) the Intra-Departmental Council on Native American
Affairs: * * * The [Director of the Indian Health Service]
Assistant Secretary for Indian Health shall serve as vice
chairperson of the council.''