[House Report 116-651]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-651
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
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TO DEEM AN URBAN INDIAN ORGANIZATION AND EMPLOYEES THEREOF TO BE A PART
OF THE PUBLIC HEALTH SERVICE FOR THE PURPOSES OF CERTAIN CLAIMS FOR
PERSONAL INJURY, AND FOR OTHER PURPOSES
_______
December 15, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 6535]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 6535) to deem an urban Indian organization and
employees thereof to be a part of the Public Health Service for
the purposes of certain claims for personal injury, and for
other purposes, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of H.R. 6535 is to deem an urban Indian
organization and employees thereof to be a part of the Public
Health Service for the purposes of certain claims for personal
injury.
Background and Need for Legislation
The Indian Health System, commonly referred to as the I/T/U
system, is made up of the Indian Health Service (IHS), tribal
health programs (THPs), and urban Indian organizations (UIOs).
UIOs play a pivotal role in the system and provide culturally
competent care for the over seventy percent of American Indians
and Alaska Natives who live in urban centers.
The Federal Tort Claims Act\1\ (FTCA) is the federal law
that allows parties claiming to have been injured by negligent
actions of employees of the United States to file claims
against the federal government. The FTCA also provides
authority for the federal government to defend against such
claims. In 1988 and again in 1990, Congress extended the
Federal Tort Claims Act to negligent acts of tribal contractors
carrying out contracts, grants, or cooperative agreements
pursuant to the Indian Self-Determination and Education
Assistance Act.\2\
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\1\August 2, 1946, ch.646, Title IV, 60 Stat. 812, 28 U.S.C. Part
VI, Chapter 171 and 28 U.S.C. Sec. 1346.
\2\Pub. L. 93-638, 25 U.S.C. Sec. 450f (d) and 25 U.S.C. 458Sec.
aaa-15.
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Currently, both IHS and THPs receive FTCA malpractice
coverage for their employees, but UIOs do not. The ability of
Urban Indian Organizations to provide cost-effective health
services has been jeopardized by the lack of FTCA coverage
commonly afforded to other federally funded Indian health
programs. The skyrocketing cost of malpractice insurance in
recent years has compromised the scope of services that UIOs
can provide pursuant to contracts or grants that they receive
from IHS.
UIOs must spend millions of dollars in scarce resources on
insurance coverage when those resources could be better
utilized to expand services available to urban Indian patients.
H.R. 6535 creates parity within the I/T/U system by extending
FTCA coverage to urban Indian organizations, who currently are
forced to divert resources away from health care in order to
foot exorbitant liability costs themselves. FTCA coverage would
also free up millions of dollars for UIOs to provide necessary
health care services in response to COVID-19, as UIOs are
uniquely positioned to deliver health care services in COVID-19
hot spots.
The Administration supports such a change and included
language to that effect in its Department of Health and Human
Services FY 2021 IHS Congressional Budget Justification.\3\
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\3\https://www.ihs.gov/sites/budgetformulation/themes/
responsive2017/display_objects/documents/FY_2021_Final_CJ-IHS.pdf.
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Committee Action
H.R. 6535 was introduced on April17, 2020, by
Representative Ruben Gallego (D-AZ). The bill was referred to
the Committee on Natural Resources, and in addition to the
Committee on Energy and Commerce and the Committee on the
Judiciary. Within the Natural Resources Committee, the bill was
referred to the Subcommittee for Indigenous Peoples of the
United States. On July 22, 2020, the Subcommittee held a
hearing on the bill. On July 29, 2020, the Natural Resources
Committee met to consider the bill. The Subcommittee was
discharged by unanimous consent. No amendments were offered,
and the bill was adopted and ordered favorably reported to the
House of Representatives by unanimous consent.
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress--the following hearing was used to develop or
consider H.R. 6535: hearing by the Subcommittee for Indigenous
Peoples of the United States held on July 22, 2020.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 2, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 6535, a bill to
deem an urban Indian organization and employees thereof to be a
part of the public health service for the purposes of certain
claims for personal injury, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert
Stewart.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 6535 would include Urban Indian Health Programs
(UIHPs) and their employees in the pool of individuals and
entities that receive liability protection under the Federal
Tort Claims Act (FTCA). Under the FTCA, the federal government
pays for court judgments and compromise settlements of lawsuits
out of the Judgement Fund. The Judgment Fund is a permanent,
indefinite appropriation that is available to pay monetary
awards against the United States that are judicially or
administratively ordered.Under current law, UIHPs are health
care organizations that are grantees of the Indian Health
Service (IHS) but are not considered federal entities and
therefore their employees are not covered under the FTCA.
For this estimate, CBO used information from the Department
of Treasury's Bureau of the Fiscal Service about the number and
level of payments from the Judgement Fund that were used to
settle claims and litigation on behalf of IHS employees. While
UIHPs are not part of IHS, they provide similar services, and
CBO expects they would experience a similar rate of lawsuits
and settlements.
According to the Judgement Fund data, over the last five
years an average of about $19.5 million has been paid out for
medical malpractice claims against IHS employees, or about
$2,700 per year per IHS clinical employee. UIHPs employ about
1,150 clinical workers and CBO estimates that payments from the
Judgement Fund would total about $3 million per year once fully
implemented. CBO expects that it would take some time for
patients to initiate legal action against UIHPs and for the
legal system to finalize judgements and settlements against the
UIHPs. Therefore, CBO estimates that the outlays from the
Judgement Fund would gradually increase until reaching a stable
level by 2025. In total, CBO estimates that H.R. 6535 would
increase direct spending from the Judgement Fund by $22 million
over the 2020-2030 period.
The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. The net changes in outlays that
are subject to those pay-as-you-go procedures are shown in
Table 1. The costs of the legislation fall within budget
function 800 (general government).
TABLE 1.--CBO'S ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS OF H.R. 6535, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON NATURAL RESOURCES ON JULY
29, 2020
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By fiscal year, millions of dollars--
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2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2020-2025 2020-2030
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Increases in Direct Spending
Pay-As-You-Go Effect................................. 0 0 0 1 2 3 3 3 3 3 3 6 22
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Components may not sum to totals because of rounding.
The CBO staff contact for this estimate is Robert Stewart.
The estimate was reviewed by Leo Lex, Deputy Director of Budget
Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill are to deem an urban Indian
organization and employees thereof to be a part of the Public
Health Service for the purposes of certain claims for personal
injury.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
This bill contains no unfunded mandates.
Existing Programs
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local, or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
INDIAN HEALTH CARE IMPROVEMENT ACT
* * * * * * *
TITLE V--HEALTH SERVICES FOR URBAN INDIANS
* * * * * * *
SEC. 519. DEEMING AN URBAN INDIAN ORGANIZATION AND EMPLOYEES THEREOF TO
BE A PART OF THE PUBLIC HEALTH SERVICE FOR THE
PURPOSES OF CERTAIN CLAIMS FOR PERSONAL INJURY.
Section 102(d) of the Indian Self-Determination and Education
Assistance Act shall apply--
(1) to an Urban Indian organization to the same
extent and in the same manner as such section applies
to an Indian tribe, a tribal organization, and an
Indian contractor; and
(2) to the employees of an Urban Indian organization
to the same extent and in the same manner as such
section applies to employees of an Indian tribe, a
tribal organization, or an Indian contractor.
* * * * * * *
DISSENTING VIEWS
I oppose H.R. 6535 in its current form due to new
information provided to the Committee by the Indian Health
Service after the July 29, 2020, markup of the bill. One week
prior to the markup, the Indian Health Service testified that
the Department had some concerns with the bill and would like
to provide technical assistance. Additional questions for the
record were submitted to the Indian Health Service after the
hearing but answers have not been received.
However, the Committee has received some unofficial
information regarding concerns and accompanying technical
assistance from the Indian Health Service. The concerns with
the bill as written include:
Failure to cover urban Indian organizations'
board of directors and officers.As defined by the
Indian Health Care Improvement Act (IHCIA), one of the
unique elements of urban Indian organizations (UIOs) is
that they are non-profit organizations governed by
urban-Indian controlled boards of directors under 25
U.S.C. 1603(29). The Indian Self-Determination and
Education Assistance Act (ISDEAA) provision (25 U.S.C.
5321(d)) that would apply under H.R. 6535 references
``employees''. Board members and officers generally are
not included in the definition of ``employee''.
Uncertainty about the date of
applicability.That same ISDEAA provision provided
prospective Federal Tort Claims Act (FTCA) coverage,
i.e., it applied only to claims filed on or after the
specified dates, which correspond to the dates of
enactment of the related FTCA coverage.
Lack of clarity on the authority being
extended. UIOs receive contracts/grants under the IHCIA
and do not operate under the ISDEAA. Therefore,
applying an ISDEAA provision to UIOs ``to the same
extent and in the same manner'' as it applies to tribes
and tribal organizations operating under the ISDEAA
could create uncertainty about the scope of the
authority being extended to UIOs.
There is general agreement and support that FTCA
protections should be extended to urban Indian organizations,
but the bill language should mirror the technical assistance
provided by the Indian Health Service. At the July 29, 2020,
markup of H.R. 6535, the Chairman committed to working with me
to resolve any outstanding concerns with several pieces of
legislation. Since that
time, there has been little response to Republican requests to
engage in meaningful dialogue to resolve unintended
consequences with H.R. 6535.
Rob Bishop.
[all]