[Senate Report 108-72]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 141
108th Congress                                                   Report
                                 SENATE
 1st Session                                                     108-72

======================================================================



 
 TO ESTABLISH THE NATIVE AMERICAN HEALTH AND WELLNESS FOUNDATION, AND 
                           FOR OTHER PURPOSES

                                _______
                                

                 June 16, 2003.--Ordered to be printed

                                _______
                                

   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 555]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 555), to establish the Native American Health and 
Wellness Foundation, and for other purposes, having considered 
the same, reports favorably thereon with amendments and 
recommends that the bill, as amended, do pass.

                                Purpose

    The purposes of the Native American Health and Wellness 
Foundation Act of 2003 (S. 555) are to encourage, accept, and 
administer private gifts of real or personal property, and the 
income or interest from such gifts for the benefit of, or in 
support of, the mission of the Indian Health Service; and to 
undertake and conduct such other activities as will further the 
health and wellness activities and opportunities of Native 
Americans.

                               Background

    Of all groups in the United States, Native Americans 
continue to experience the lowest health status in the nation. 
The incidence rates for diabetes, tuberculosis, alcoholism, and 
Fetal Alcohol Syndrome (FAS) are higher among Native Americans 
than for other Americans.
    Similarly, mental illness, cancer, obesity, heart disease, 
and infant mortality rates continue to plague Native 
communities at staggering rates.\1\
---------------------------------------------------------------------------
    \1\ U.S. Department of Health and Human Services, Indian Health 
Service, Facts on Indian Health Disparities, 2002.
---------------------------------------------------------------------------
    The health disparities that exist between the Native 
American population and the general U.S. population highlights 
the need for innovative strategies to elevate awareness of 
these health problems and to promote the health and wellness of 
Native people.
    To address the health care needs of Native Americans, 
Congress annually appropriates funds to the Indian Health 
Service (IHS), the primary agency responsible for providing 
health services to more than 1.6 million American Indians and 
Alaska Natives. The provision of health care services involves 
a system comprised of the Indian Health Service, Tribal and 
Urban Indian (``I/T/U'') operated facilities and programs. In 
Fiscal Year 2003, the Indian Health Service budget totaled 
$2.87 billion, of which a majority was spent on direct care and 
a lesser amount in the area of prevention. The I/T/U system 
received additional support through the reauthorization of the 
Special Diabetes Program for Indians (``SDPI'') which increased 
funding 50%, to $150 million annually from Fiscal Year 2004 
through Fiscal Year 2008 to help prevent and treat Native 
Americans with diabetes.
    While the I/T/U system has received modest increases in 
recent spending bills for the IHS and SDPI, funding for Native 
American health care is still inadequate to meet the basic 
health care needs of Native people.
    Many tribes have availed themselves of the opportunities 
afforded by the Indian Self Determination and Education 
Assistance Act, 25 U.S.C. 450 et seq., to assume responsibility 
for health programs formerly administered by the IHS, and more 
effectively administer some or all health programs for their 
communities.
    These ``self governance'' tribes have become very creative 
in designing health and wellness programs, with very limited 
funds, tailored to the needs of their communities. These 
programs vary from tribe to tribe, as each has a different 
focus based on their tribal health priorities, such as disease 
prevention, tertiary care, and treatment. Those tribes that 
manage to secure additional resources through other funding 
sources are able to provide expanded services to their members.
    Notwithstanding the limited funding, Native communities 
have begun to gradually raise their health status through the 
efforts of the Indian Health Service and Native health 
providers. However, there remains a significant disparity 
between available Federal funding and the documented need for 
health care in Native communities. To continue closing the gap 
between funding and need, other sources of funds for Native 
health must be tapped, including private, tribal and charitable 
sectors.
    The Native American Health and Wellness Foundation Act of 
2003 addresses the severe health problems facing Indian Country 
by attracting new resources and increasing attention to Native 
health issues through the creation of a Federally-chartered 
charitable and nonprofit corporation, the ``Native American 
Health and Wellness Foundation''.
    The Native American Health and Wellness Foundation is 
similar to existing foundations enacted and established by 
Congress. The American Indian Education Foundation \2\ and the 
Fish and Wildlife Foundation \3\ have been successful in 
achieving their intended purposes and serve as the model for 
the Native American Health and Wellness Foundation.
---------------------------------------------------------------------------
    \2\ 25 U.S.C. Part F--American Indian Education Foundation 
establishes a Federally-chartered charitable and nonprofit corporation 
to encourage, accept, and administer private resources to benefit and 
support the mission of the Office of Indian Education Programs of the 
Bureau of Indian Affairs, and to further the educational opportunities 
of American Indians who attend a Bureau-funded school.
    \3\ 16 U.S.C. Chapter 57--National Fish and Wildlife Foundation 
establishes a Federally-chartered charitable and nonprofit corporation 
to encourage, accept, and administer private resources to benefit the 
activities and services of the United States Fish and Wildlife Service 
and the National Oceanic and Atmospheric Administration, and to further 
the conservation and management of fish, wildlife, plants, and other 
natural resources.
---------------------------------------------------------------------------
    The Native American Health and Wellness Foundation will 
assist the Indian Health Service to meet its mission to raise 
the physical, mental, social, and spiritual health ofAmerican 
Indians and Alaska Natives to the highest level, and to further the 
health and wellness activities and opportunities for Native people.

                      Summary of Major Provisions

    The Native American Health and Wellness Foundation Act of 
2003 amends the Indian Self-Determination and Education 
Assistance Act by adding a new Title VIII to provide for the 
creation of the Native American Health and Wellness Foundation, 
a Federally-chartered charitable and nonprofit corporation.
    The purposes and duties of the Foundation are to encourage, 
accept and administer private gifts of real or personal 
property, and the income or interest from such gifts, for the 
benefit of, or in support of, the mission of the Indian Health 
Service. The Foundation will also undertake and conduct such 
other activities as will further the health and wellness of 
Native Americans.
    The Foundation will be established by a committee appointed 
by the Secretary of the Department of Health and Human 
Services. This committee will establish the initial 
constitution and bylaws for the Foundation, and appoint the 
initial members of the Board of Directors for the Foundation. 
The Board of Directors will be the governing body of the 
Foundation.
    The Secretary is authorized to provide personnel, 
facilities and other administrative support services to the 
Foundation for the first five years after the Foundation is 
established.

                          Legislative History

    S. 555 was introduced on March 6, 2003, by Senator Campbell 
for himself and for Senator Inouye, and was referred to the 
Committee on Indian Affairs. Senator McCain was added as a 
cosponsor on March 11, 2003.
    On April 9, 2003, a hearing on S. 555 was conducted by the 
Committee at which time the Department of Health and Human 
Services declined to take a formal position on the legislation.

                      Section-by-Section Analysis

    Sec. 1. Short Title. This Act may be cited as the Native 
American Health and Wellness Foundation Act of 2003.
    Sec. 2. Native American Health and Wellness Foundation. 
This section amends the Indian Self-Determination and Education 
Assistance Act by adding at the end a new Title VIII. Within 
the new Title, the following new sections are added to the 
Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.):
    Section 801 provides definitions for the term ``Board'', 
``Committee'', ``Foundation'', ``Secretary'' and ``Service''.
    Section 802 provides for the establishment of the Native 
Americans Health and Wellness Foundation. The Foundation will 
be incorporated and domiciled in the District of Columbia as a 
federally chartered charitable and nonprofit corporation. The 
duties of the Foundation are to accept and administer private 
gifts of real and personal property to benefit and support the 
Indian Health Service, and to undertake other activities that 
will further health and wellness activities for Native 
Americans.
    Section 802 further authorizes the establishment of a 
Committee which shall, within 180 days, incorporate the 
Foundation, establish the constitution and initial bylaws of 
the Foundation, provide the initial operation of the 
Foundation, and appoint the initial members of the Board. The 
Board will be the governing body of the Foundation, and will 
have at least 11 members, the selection and terms of which 
shall be governed by the constitution and bylaws of the 
Foundation.
    Section 802 additionally authorizes appropriations for the 
Foundation, and authorizes the Secretary to transfer donated 
funds to the Foundation. The Foundation will be subject to 
audits as if it were a corporation under part B of subtitle II, 
Title 36, United States Code. Employees, agents, officers or 
Board members of the Foundation shall not be considered Federal 
employees.
    Section 803 authorizes the Secretary to provide additional 
administrative services and support to the Foundation during 
the first five years after the Foundation is established.

            Committee Recommendation and Tabulation of Vote

    On May 14, 2003, the Committee, in an open business 
session, considered S. 555. During consideration of S. 555 the 
amendment recommended by the Department was unanimously 
approved by the Committee. Following adoption of the amendment, 
the Committee voted unanimously to favorably report S. 555, as 
amended, to the full Senate with a recommendation that the bill 
do pass.

                   Cost and Budgetary Considerations

    The cost estimate for S. 555 as calculated by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 30, 2003.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 555, the Native 
American Health and Wellness Foundation Act of 2003.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Eric Rollins.
            Sincerely,
                                          Barry B. Anderson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 555--Native American Health and Wellness Foundation Act of 2003

    S. 555 would establish the Native American Health and 
Wellness Foundation, a charitable and nonprofit corporation to 
support the mission of the Indian Health Service (IHS). The 
foundation would assist federal, state, tribal, and other 
entities in efforts to further health and wellness activities 
and opportunities for Native Americans.
    Funding for the foundation would be provided through a 
transfer of any donated funds currently held by the Department 
of Health and Human Services (HHS) as well as other donations 
solicited and received by the foundation itself. (Donations to 
HHS are recorded in the federal budget as revenues.) The bill 
would authorize the appropriation of $500,0000 annually for the 
foundation's administrative expenses. This amount would be 
adjusted in later years for inflation. S. 555 would allow the 
Secretary of Health and Human Services to provide reimbursable 
administrative and financial support to the foundation during 
the first five years of its operation.
    Assuming appropriation of the amounts authorized, CBO 
estimates that implementing S. 555 would cost about $400,000 in 
2004 and $3 million over the 2004-2008 period. Any additional 
assistance provided by HHS, which would probably be less than 
$500,000 annually, must be fully reimbursed by the foundation 
and would have no net impact on discretionary spending. The 
transfer of donated funds from HHS to the foundation would 
increase direct spending. Based on information from IHS, CBO 
estimates that these donations total less than $500,000 
annually. S. 555 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.
    The CBO staff contact for this estimate is Eric Rollins. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rule 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 has concluded 
that S. 555 will not require the promulgation of regulations so 
the regulatory and paperwork impact should be minimal.

                        Executive Communications

    There have been no executive communications received on 
this legislation.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 555, as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

                           Public Law 93-638

    To provide maximum Indian participation in the Government 
and education of the Indian People; to provide for the full 
participation of Indian Tribes in programs and services 
conducted by the Federal Government for Indians and to 
encourage the development of human resources of the Indian 
people; to establish a program of assistance to upgrade Indian 
education; to support the right of Indian citizens to control 
their own education activities; and for other purposes.
    Be it enacted by the Senate and House of Representatives of 
the United States in Congress assembled,

           *       *       *       *       *       *       *


       [TITLE V] TITLE VII--AMERICAN INDIAN EDUCATION FOUNDATION

[SEC. 501] SEC. 701. AMERICAN INDIAN EDUCATION FOUNDATION.

           *       *       *       *       *       *       *


[SEC. 502] SEC. 702. ADMINISTRATIVE SERVICES AND SUPPORT.

    (a) Provision of Support by Secretary.--* * *
          (2) may provide funds to reimburse the travel 
        expenses of the members of the Board under section 
        [501] 701; and

           *       *       *       *       *       *       *


[SEC. 503] SEC. 703. DEFINITIONS. * * *

          (2) the term ``Foundation'' means the Foundation 
        established by the Secretary pursuant to section [501] 
        701; and

           *       *       *       *       *       *       *


       TITLE VIII--NATIVE AMERICAN HEALTH AND WELLNESS FOUNDATION

SEC. 801. DEFINITIONS.

    In this title:
          (1) Board.--The term ``Board'' means the Board of 
        Directors of the Foundation.
          (2) Committee.--The term ``Committee'' means the 
        Committee for the Establishment of Native American 
        Health and Wellness Foundation established under 
        section 802(f).
          (3) Foundation.--The term ``Foundation'' means the 
        Native American Health and Wellness Foundation 
        established under section 802.
          (4) Secretary.--The term ``Secretary'' means the 
        Secretary of Health and Human Services.
          (5) Service.--The term ``Service'' means the Indian 
        Health Service of the Department of Health and Human 
        Services.

SEC. 802. NATIVE AMERICAN HEALTH AND WELLNESS FOUNDATION.

    (a) In General.--As soon as practicable after the date of 
enactment of this title, the Secretary shall establish, under 
the laws of the District of Columbia and in accordance with 
this title, the Native American Health and Wellness Foundation.
    (b) Perpetual Existence.--The Foundation shall have 
perpetual existence.
    (c) Nature of Corporation.--The Foundation--
          (1) shall be a charitable and nonprofit federally 
        chartered corporation; and
          (2) shall not be an agency or instrumentality of the 
        United States.
    (d) Place of Incorporation and Domicile.--The Foundation 
shall be incorporated and domiciled in the District of 
Columbia.
    (e) Duties.--The Foundation shall--
          (1) encourage, accept, and administer private gifts 
        of real and personal property, and any income from or 
        interest in such gifts, for the benefit of, or in 
        support of, the mission of the Service;
          (2) undertake and conduct such other activities as 
        will further the health and wellness activities and 
        opportunities of Native Americans; and
          (3) participate with and assist Federal, State, and 
        tribal governments, agencies, entities, and individuals 
        inundertaking and conducting activities that will 
further the health and wellness activities and opportunities of Native 
Americans.
    (f) Committee for the Establishment of Native American 
Health and Wellness Foundation.--
          (1) In general.--The Secretary shall establish the 
        Committee for the Establishment of Native American 
        Health and Wellness Foundation to assist the Secretary 
        in establishing the Foundation.
          (2) Duties.--Not later than 180 days after the date 
        of enactment of this section, the Committee shall--
                  (A) carry out such activities as are 
                necessary to incorporate the Foundation under 
                the laws of the District of Columbia, including 
                acting as incorporators for the Foundation;
                  (B) ensure that the Foundation qualifies for 
                and maintains the status required to carry out 
                this section, until the Board of Directors is 
                established;
                  (C) establish the constitution and initial 
                bylaws of the Foundation;
                  (D) provide for the initial operation of the 
                Foundation, including providing for temporary 
                or interim quarters, equipment, and staff; and
                  (E) appoint the initial members of the Board 
                in accordance with the constitution and initial 
                bylaws of the Foundation.
    (g) Board of Directors.--
          (1) In general.--The Board of Directors shall be the 
        governing body of the Foundation.
          (2) Powers.--The Board may exercise, or provide for 
        the exercise of, the powers of the Foundation.
          (3) Selection.--
                  (A) In general.--Subject to subparagraph (B), 
                the number of members of the Board, the manner 
                of selection of the members (including the 
                filling of vacancies), and the terms of office 
                of the members shall be as provided in the 
                constitution and bylaws of the Foundation.
                  (B) Requirements.--
                          (i) Number of members.--The Board 
                        shall have at least 11 members, who 
                        shall have staggered terms.
                          (ii) Initial voting members.--The 
                        initial voting members of the Board--
                                  (I) shall be appointed by the 
                                Committee not later than 180 
                                days after the date on which 
                                the Foundation is established; 
                                and
                                  (II) shall have staggered 
                                terms.
                          (iii) Qualification.--The members of 
                        the Board shall be United States 
                        citizens who are knowledgeable or 
                        experienced in Native American health 
                        care and related matters.
                  (C) Compensation.--A member of the Board 
                shall not receive compensation for service as a 
                member, but shall be reimbursed for actual and 
                necessary travel and subsistence expenses 
                incurred in the performance of the duties of 
                the Foundation.
    (h) Officers.--
          (1) In general.--The officers of the Foundation shall 
        be--
                  (A) a secretary, elected from among the 
                members of the Board; and
                  (B) any other officers provided for in the 
                constitution and bylaws of the Foundation.
          (2) Secretary.--The secretary of the Foundation shall 
        serve, at the direction of the Board, as the chief 
        operating officer of the Foundation.
          (3) Election.--The manner of election, term of 
        office, and duties of the officers of the Foundation 
        shall be as provided in the constitution and bylaws of 
        the Foundation.
    (i) Powers.--The Foundation--
          (1) shall adopt a constitution and bylaws for the 
        management of the property of the Foundation and the 
        regulation of the affairs of the Foundation;
          (2) may adopt and alter a corporate seal;
          (3)may enter into contracts;
          (4) may acquire (through a gift or otherwise), own, 
        lease, encumber, and transfer real or personal property 
        as necessary or convenient to carry out the purposes of 
        the Foundation;
          (5) may sue and be sued; and
          (6) may perform any other act necessary and proper to 
        carry out the purposes of the Foundation.
    (j) Principal Office.--
          (1) In general.--The principal office of the 
        Foundation shall be in the District of Columbia.
          (2) Activities; offices.--The activities of the 
        Foundation may be conducted, and offices may be 
        maintained, throughout the United States in accordance 
        with the constitution andbylaws of the Foundation.
    (k) Service of Process.--The foundation shall comply with 
the law on service of process of each State in which the 
Foundation is incorporated and of each State in which the 
foundation carries on activities.
    (l) Liability of Officers, Employees, and Agents.--
          (1) In general.--The Foundation shall be liable for 
        the acts of the officers, employees, and agents of the 
        Foundation acting within the scope of their authority.
          (2) Personal liability.--A member of the Board shall 
        be personally liable only for gross negligence in the 
        performance of the duties of the member.
    (m) Restrictions.--
          (1) Limitation on spending.--Beginning with the 
        fiscal year following the first full fiscal year during 
        which the Foundation is in operation, the 
        administrative costs of the Foundation shall not exceed 
        10 percent of the sum of--
                  (A) the amounts transferred to the Foundation 
                under subsection (o) during the preceding 
                fiscal year; and
                  (B) donations received from private sources 
                during the preceding fiscal year.
          (2) Appointment and hiring.--The appointment of 
        officers and employees of the Foundation shall be 
        subject to the availability of funds.
          (3) Status.--A member of the Board or officer, 
        employee, or agent of the Foundation shall not by 
        reason of association with the Foundation be considered 
        to be an officer, employee, or agent of the United 
        States.
    (n) Audits.--The Foundation shall comply with section 10101 
of title 36, United States Code, as if the Foundation were a 
corporation under part B of subtitle II of that title.
    (o) Funding.--
          (1) Authorization of appropriations.--There is 
        authorized to be appropriated to carry out subsection 
        (e)(1) $500,000 for each fiscal year, as adjusted to 
        reflect changes in the Consumer Price Index for all-
        urban consumers published by the Department of Labor.
          (2) Transfer of donated funds.--The Secretary shall 
        transfer to the Foundation funds held by the Department 
        of Health and Human Services under the Act of August 5, 
        1954 (42 U.S.C. 2001 et seq.), if the transfer or use 
        of the funds is not prohibited by any term under which 
        the funds were donated.

SEC. 803. ADMINISTRATIVE SERVICES AND SUPPORT.

    (a) Provision of Support by Secretary.--Subject to 
subsection (b), during the 5-year period beginning on the date 
on which the foundation is established, the Secretary--
          (1) may provide personnel, facilities, and other 
        administrative support services to the Foundation;
          (2) may provide funds to reimburse the travel 
        expenses of the members of the Board; and
          (3) shall require and accept reimbursements from the 
        Foundation for--
                  (A) services provided under paragraph (1); 
                and
                  (B) funds provided under paragraph (2).
    (b) Reimbursement.--Reimbursements accepted under 
subsection (a)(3)--
          (1) shall be deposited in the Treasury of the United 
        States to the credit of the applicable appropriations 
        account; and
          (2) shall be chargeable for the cost of providing 
        services described in subsection (a)(1) and travel 
        expenses described in subsection (a)(2).
    (c) Continuation of Certain Services.--The Secretary may 
continue to provide facilities and necessary support services 
to the Foundation after the termination of the 5-year period 
specified in subsection (a) if the facilities and services--
          (1) are available; and
          (2) are provided on reimbursable cost basis.

                                
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