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                                                       Calendar No. 435
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-170

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



 
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.''