Copyright 2000 Federal News Service, Inc.
Federal News Service
July 26, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 4279 words
HEADLINE:
PREPARED STATEMENT OF JOHN J. CALLAHAN ASSISTANT SECRETARY FOR MANAGEMENT AND
BUDGET DEPARTMENT OF HEALTH AND HUMAN SERVICES
BEFORE THE
SENATE COMMITTEE ON INDIAN AFFAIRS
SUBJECT - S.
2526 THE INDIAN HEALTH CARE IMPROVEMENT ACT REAUTHORIZATION BILL
BODY: STATEMENT OF THE DEPARTMENT OF HEALTH
AND HUMAN SERVICES ON S. 2526 - TO AMEND THE INDIAN HEALTH CARE IMPROVEMENT ACT
TO REVISE AND EXTEND SUCH ACT
July 26, 2000
Mr. Chairman and
Members of the Committee:
Good afternoon, I am pleased to testify today
on behalf of the Secretary of the Department of Health and Human Services on
this historic legislation, S. 2526, the Indian Health Care Improvement Act
Reauthorization of 2000. Today, I am accompanied by Dr. Michael Trujillo,
Director of the Indian Health Service (HIS), Mr. Michel Lincoln, Deputy
Director, Mr. Gary Hartz, Acting Director of the Office of Public Health, and
Dr. Craig Vanderwagen, Director, Division of Clinical and Preventive Services,
Office of Public Health.
Since Dr. Trujillo last testified before this
Committee, the Department has continued to review and analyze this complex and
expansive proposal as reflected in S. 2526. The Indian Health Care Improvement
Act (IHCIA) was originally enacted in 1976 to provide additional guidance and
authority for the programs of the federal government that deliver health
services to American Indian/Alaska Natives. The reauthorization of this
cornerstone authority provides an opportunity for all of us to revisit the
original intent of this legislation, and examine the Act in light of the many
changes that have occurred in the health care environment during the past 24
years.The IHS has the responsibility for the delivery of health services to
Federally recognized American Indian and Alaska Natives (AI/AN) through a system
of IHS, tribal, and urban (ITU)operated facilities and programs based on
treaties, judicial determinations, and Acts of Congress. The mission of the
agency is to raise the physical, mental, social, and spiritual health of
American Indians and Alaska Natives (AI/AN) to the highest level, in partnership
with the population served. The agency goal is to assure that comprehensive,
culturally acceptable personal and public health services are available and
accessible to the service population. And, the Department's responsibility is to
uphold the Federal government's obligation to promote healthy AI/AN people,
communities, and cultures and to honor and protect the inherent sovereign rights
of tribes.
The Tribal Steering Committee Draft bill, upon which S. 2526
was based, was submitted to Congress by tribes directly and does not necessarily
represent the Administration's views on policies. The Tribal and urban Indian
health care proposals now contained in this bill recommend the most sweeping
changes in the history of the IHCIA. S. 2526 contains recommendations that
require careful analysis to determine the full impact of the bill's many
recommendations.
In drafting the bill, tribal and urban Indian
representatives placed no parameters or limitations on changes that they might
consider or recommend for the reauthorization of IHCIA. This bill includes new
requirements for IHS by establishing new and expanded authorities, which will
increase expectations and place additional pressures on IHS' ability to operate
programs withinits limited appropriation. We have concerns that these expansions
would detract from IHS' ability to carry out its mission of providing basic
health care services to AI/ANs. Also, since many of the new provisions convert
grants into programs available for tribal Self-Determination contracts and
compacts, the associated Contract Support Costs could increase proportionately.
The FY 2001 Budget included a historic $
230 million increase
for IHS. Even though this is the largest funding increase ever requested, IHS
would not be able to implement these expanded authorities.
S. 2526
contains eight (8) titles that encompass most of the health related provisions
in the existing IHCIA: Title I, Indian Health, Human Resources and Development;
Title II, Health Services; Title III, Facilities; Title IV, Access to Health
Services, Title V, Health Services for Urban Indians; Title VI, Organizational
Improvements; Title VII, Behavioral Health Programs; and Title VIII,
Miscellaneous. The Administration is in the process of reviewing the many new
provisions proposed in the tribal draft legislation in the context of the
President's Budget. We are not prepared today to provide the Committee with a
formal position on this expansive legislation without completing a thorough
review. We will share with you today our views to date on some of the provisions
contained in S. 2526.
Title I - Indian Health, Human Resources and
Development
The purpose of this title is to ensure that Indian health
programs have an adequate supply of trained professionals able to provide
culturally appropriate care. In order to achieve this goal, Title I includes
provisions for the education and training of health care professionals. Many!
provisions in the existing statute are proposed to be amended to
accommodate the rapid pace of change in the health fields in future years. We
note that Sec. 105 - Indian Health Professions combines two separate scholarship
programs into one section. Under the existing statute, Sec. 104 Contains the
Indian Health Service Scholarship Program and Sec. 120 contains the Matching
Grants program. These two programs are separate in their administration and we
would recommend they remain separate in the reauthorization of this provision.
Title II: Health Services
A number of provisions in Title II of
the bill will assist in our efforts to reduce unnecessary disease and injury and
raise Indian health to the highest possible level. There are many health care
priorities in Indian Country, but effective prevention and treatment of diabetes
and its related complications must rank among the highest. Sec. 204 of the bill
would institutionalize the progress we are making with the diabetes program
funded under the Balanced Budget Act of 1997, by establishing an ongoing
national program within the IHCIA. This would be comparable to the President's
proposal to amend the diabetes program in the Balanced Budget Act to continue
funding for this important program. Sec. 212 would update and expand our
tuberculosis program to focus more broadly on all communicable and infectious
diseases.
Section 224(a) clarifies that patients receiving contract
health services (CHS) authorized by the. Service will not be liable for payment
of charges or costs associated with provision of those services. This
protection, together with additional protections in Title IV, would provide
greater peace of mind for Indian patients who worry about dunning letters and
damage to their credit because of CHS provider attempts to recover payments from
them as well as from the Service.
Title III: Facilities
Sec.
301(a)(2) provides for newly constructed or renovated facilities, whenever
practicable, to meet the construction standards of any nationally recognized
accrediting bodies, not just JCAHO.
This provision recognizes the
expanding number of accrediting bodies; however, the Secretary does not
recognize all of them for the various provider types they accredit. Because it
appears as though the intent is to assure that construction and renovation funds
maximize the likelihood of the facility being able to collect Medicare and
Medicaid payments, it may be more appropriate to revise this provision of the
bill to reflect that intent.
S. 2526 greatly expands agency program
reporting requirements. We have general concerns about the overall reporting
burden placed on IHS because it could require the diversion of resources from
other much needed programs, including patient care, facility maintenance and
other critical areas of the IHS programs. In addition, of concern is the new
provision in Sec. 301(c) that would require the Secretary to report annually on
the needs for health care facilities construction, including the renovation and
expansion needs of existing facilities. While the first year report to Congress
does not require consultation with Tribes, IHS would need to develop a baseline
description of existing facilities and determine the need based on existing
programs, facility conditions, facility efficiency and other factors.
Section 303(b) eliminates applicability of
Davis Bacon
wage rates for construction of Indian Health Service facilities. The
Administration has significant concerns about this provision. The Administration
is firmly committed to maintaining the important worker protections provided by
the
Davis-Bacon Act which applies to workers employed by
contractors and subcontractors performing on Federal or Federally- assisted
construction projects.
Sec. 310 provides new authority for joint
ventures between IHS and Tribes as an alternative to the long wait on the IHS
facilities construction priority list. This proposed authority could assist the
IHS and Tribal health programs in meeting the construction needs of facilities,
which average 30 years of age, and maintenance and repair of many of the
facilities in Indian country.
Before moving ahead on any new Joint
Venture projects in the future, IHS will need to examine the following issues:
a) find a way to integrate and prioritize joint ventures with the IHS Facilities
Construction Priority Lists; b) ensure that long term costs associated with
staffing and operations are consistent with IHS standards for providing health
care facilities and services to Federally Recognized American Indians and Alaska
Natives can be accommodated by future funding levels; and, c) assure the funding
committed to Joint Venture projects addresses priority needs for health care
facilities and the delivery of health care services with the highest relative
need.
Title IV: Access to Health Services and Conforming Amendments to
the Social Security Act
In many respects, the changes in Title IV are
the most far-reaching changes in the bill, both for the IHCIA and for the Social
Security Act. We currently do not have cost estimates for this bill. In
addition, we have not thoroughly assessed every provision for administrative
feasibility and consistency with the President's Budget. I will highlight some
provisions in this title.Many of the changes in Title IV and conforming
amendments to the Social Security Act focus on provider payment issues. Previous
amendments to the IHCIA and the Social Security Act allow I/T/Us to bill
Medicare and Medicaid in certain, limited ways and were intended to provide
access to additional funds to supplement, not replace the IHS appropriation.
Since those earlier amendments, both the general health system and Indian health
have changed dramatically.
It is important to remember that there are
fundamental differences between public health programs like IHS and many other
HHS health programs, and health insurance programs like Medicare and Medicaid.
Public health programs generally have limited funds, but they have broad
discretion on how those funds may be used. Exactly the opposite is the case with
Medicare and Medicaid, which are health insurance programs that guarantee
payment with unlimited Federal funds, but place their limits on both the type of
benefits and the categories of individuals for which those funds can pay. It is
not surprising that IHS and HCFA programs, starting with such basic differences,
have developed some incompatibilities.
Title II, sec. 203 adds a number
of detailed provisions for a new provider type called a Qualified Indian Health
Program (QIHP), for I/T/Us that want to participate in Medicare and Medicaid.
The QIHP provisions contain a number of exceptions to the usual coverage,
payment, and other rules for those programs. While creation of an
Indian-specific provider type could address problems Indian providers face, the
proposed QIHP is extremely complex and would present a number of difficulties in
its administration. Similarly, sec. 423 sets out a series of managed care
payment rules and exceptions which may have unintended adverse consequences. In
a growing number of States, health is dominated by managed care. Exempting
Indian health from such systems could leave Indian providers and their patients
without access to the significant advantages of increased benefits and care
coordination common to such managed care systems. A simpler and more effective
approach needs to be developed to address these issues.
Some proposed
solutions in the bill are broader than necessary to address the underlying
problems. For example-we understand that some people have read the current
Emergency Medical Treatment and Active Labor Act (EMTALA) to require that Indian
clinics transport emergency patients to their parent hospital even when an
appropriate transfer to a closer hospital is warranted. As HCFA stated in its
recent regulation concerning provider-based status, HCFA does not actually read
EMTALA this way. We believe the problem could be addressed by some targeted
technical assistance to Indian facilities on their responsibilities under
EMTALA. In any case, it is unnecessary and perhaps unwise to exempt Indian
clinics from the very important EMTALA patient protections, as Title II, sec.
202(e) proposes.
We have concerns with several other provisions in Title
IV, including the following issues.
100% Reimbursement to States
Several provisions of the bill would extend the 100% Federal matching
rate to States foradditional Medicaid and SCHIP services to AI/ANs. This would
increase Federal program and related administrative costs.
Requirement
on Medicare to reimburse for all non facility-based services
This
provision would require Medicare to reimburse for all non facility-based
services (e.g., home health, community-based care, ambulance services,
physicians, DME, lab) provided by IHS providers. Currently, the Medicare statute
requires HCFA to reimburse IHS for facility-based services (e.g., hospitals and
SNFs). This would add significant new costs to the Medicare program.
Improving Access of Indian Beneficiaries to Medicare, Medicaid, and
SCHIP
Sec. 419 proposes to waive Medicaid and SCHIP premiums and
Medicare, Medicaid, and SCHIP cost sharing. The Administration is on record
supporting waiver of premiums and cost sharing for Indian beneficiaries in
SCHIP. The Medicare late enrollment penalty is necessary for an insurance
program like Medicare to avoid the negative economic consequences of "adverse
selection" where individuals do not enroll or pay premiums until they are ill
with costly health conditions. A statutory waiver of the Medicare late
enrollment penalty, therefore, is undesirable and unnecessary given
administrative actions, and provisions elsewhere in the bill, that will
encourage low-income Indian elders and persons with disabilities to enroll in
Medicaid, which will pay Medicare premiums for them.Consultation
Many
sections of S. 2526 have tribal consultation requirements. We are concerned that
these added responsibilities would stretch our resources at the expense of other
programmatic responsibilities. Tribal consultation has been an important
priority for this Administration. In HHS, we appreciate the value of
consultation and are increasingly involved with Tribes in this process. However,
we have some concerns about the specific manner in which Section 414(a) of S.
2526 would require consultation to occur. This provision requires consultation,
as defined in Executive Order 13084 of May 14, 1998, to be held with Indian
Health Service, Tribes and Urban Indian Health Programs (I/T/U's) prior to HCFA
adopting any policy or regulation. Similar language in section 514 requires all
Health and Human Services agencies to consult with urban Indian organizations
prior to taking any action, or approving any action of a state, that may affect
urban Indians or urban Indian organizations. While we value meaningful
consultation on matters relevant to tribes and ITU providers, we believe these
sections of the bill could be improved by providing for a process that more
specifically identifies regulations and policies relevant to Tribes, I/T/U
providers and urban Indians. In addition, reference to a particular Executive
Order may be impractical if it is superseded or rescinded. It may be more
effective to use language in the current Department of Health and Human Services
(HHS) consultation policy.
Negotiated Rule Making
HHS agencies
have had first-hand experience with the positive contributions of negotiated
rule making. Section 553' of 5 U.S.C. Negotiated Rule Making, lists factors to
be considered indetermining whether or not to use the negotiated rule making
procedure. These factors include: a limited number of identifiable interests
that will be significantly affected by the rule as well as reasonable likelihood
that a committee can be convened with a balanced representation of persons who
are willing to negotiate in good faith to reach agreement by consensus on the
proposed rule within a fixed period of time. Where such factors are present,
negotiated rule making can be very helpful in structuring a process through
which relevant stakeholders participate constructively in developing a
recommended rule. However, S. 2526 would require negotiated rule making in many
of its provisions. For example, Section 414 (b) would require HCFA to use the
negotiated rule making for the development of all regulations to implement
provisions contained in Title IV that would amend the Social Security Act, and
section 802 would require the Secretary to use negotiated rule making for all
regulations to implement this Act.
Negotiated rule making is very
resource intensive for both Federal and non-Federal participants, and may not be
the most effective way to obtain necessary I/T/U provider input in the
development IHCIA rules and regulations. We would recommend instead utilizing
the consultation to identify areas in the reauthorization legislation where the
negotiated rule making process would be appropriate for the development of
regulations.
Additionally, Section 802(b) of the bill limits membership
on negotiated rule making committees to Federal and Tribal representatives. For
committees to implement provisions related to Medicare, Medicaid and State
Children's Health Insurance Program (SCHIP), it would beimportant to include
representatives of State agencies charged with implementing these programs, as
well as other key provider and beneficiary interests. This would increase
opportunities for Tribal and other Indian representatives to build consensus and
support in the development of final rules to implement the bill's various
provisions.
Other General Comments
In a number of sections in
the bill, for example Section 103(a), the word "grant" is stricken and replaced
by "make funds available." Deleting the word "grant raises" the concern that the
Department's regulations at 45 CFR might not apply to any funding agreements
under this bill. We suggest using the term "grant" where appropriate throughout
the bill.
There are also several sections, for example section 516(a),
where the Secretary is directed to pay for services that are not presently
provided. In the absence of additional appropriations, complying with these
provisions would require funding reductions for existing services that are no
less necessary. We suggest that any requirement for the provision of new
services be subject to the availability of appropriations.
We have not
had an opportunity to field cross-agency concerns over many exemptions for
tribes, tribal organizations, and urban organizations on broader long-standing
Federal policies, including the
Davis-Bacon Act, the Buy
American Act, Section 117 of the Internal Revenue Code of 1986, the Federal
Reports Elimination Act of 1998, and the Anti-Deficiency Act.
Title V:
Health Services for Urban Indians
Title V authorizes the IHS to assist
in meeting the health care needs of American Indians and Alaska Natives living
in urban areas. Currently, urban Indian health programs serve approximately
149,000 urban Indians in 34 cities through the country. We estimate that over
350,000 urban Indians are eligible for services. With a few exceptions, funding
authority for urban Indian health is specifically limited to Title IV and Title
V. All other references to urban Indian health found in the other titles of the
bill address areas such as consultation, rule making planning or reporting only.
S. 2526 would streamline the process for contracting and making grants
to urban Indian organizations. While we support a streamlined process for
contracting and grant making, we do have concerns with the elimination of
certain criteria in the existing statute in S. 2526. In the existing IHCIA, Sec.
503 of Title V requires that the urban organization successfully undertake
certain activities as a condition to entering into a contract with IHS for the
provision of health care and referral services for urban Indians residing in the
particular urban center. The elimination of these criteria would be appropriate
for on-going urban Indian contractors, but for new contractors, it would be
important to retain those requirements as conditions for awarding a contract or
grant.
Title V also contains new authority for the establishment of an
Urban Indian Health Care Facility Revolving Loan Fund to provide guaranteed
loans to urban Indian health contractors and grant recipients for construction,
renovation, expansion, or purchase of health care facilities. Inaddition, Title
V authorizes the extension of Federal Tort Claims Act coverage for urban Indian
health programs. These new provisions could assist urban Indian health programs,
however, they would require additional resources and we would need to assess how
these new provisions fit into the Administration's priorities for Indian health.
Title VI: Organizational Improvements
Sec. 601(a)(2) provides
for the elevation of the Director of the IHS to Assistant Secretary for Indian
Health. The Administration has presented testimony before this committee in
support of S. 299, the stand-alone bill that contains the identical provisions
of Sec. 601. We believe this provision would provide a stronger coordination and
advocacy role in budget and policy matter related to Indian health.
In
addition, Sec. 602 (d) would authorize the Secretary, acting through the
Assistant Secretary for Indian Health to enter into contracts, agreements, and
joint ventures with other Federal agencies, States, and private and nonprofit
organizations, for the purpose of enhancing information technology in Indian
health programs and facilities. The Administration promotes the partnership and
collaboration with our sister Federal agencies in a variety of areas related to
Indian health in order to maximize our resources and involvement with other
Federal programs in the provision of health related services to AI/ANs.
Title VII: Behavioral Health Programs
Title VII includes many
sections that were transferred from Title II, Health Services, in theexisting
IHCIA. This title includes major revisions, specifically to integrate Alcohol
and Substance Abuse provisions with Mental Health and Social Service
authorities. Where appropriate, the term tribes, tribal organizations and Indian
organizations are referenced in addition to IHS.
A broad range of
behavioral health services is described under "continuum of care." Several
related sections were moved from Title VIII in the existing IHCIA, including the
section related to Fetal Alcohol Syndrome and Child Sexual Abuse. Demonstration
programs were eliminated and replaced with language authorizing programs for
Indian tribes and tribal organizations. A new section would authorize the
establishment of at least one inpatient psychiatric treatment facility per IHS
Area. These new centers would be funded on a similar basis as the Regional Youth
Treatment Centers authorized in the existing IHCIA We are concerned about the
feasibility of establishing at least one inpatient psychiatric treatment
facility per Area. The cost could be prohibitive and there could be difficulties
in recruiting and retaining specialized staff, as well as the complexities of
starting a new provider type.
Title VIII: Miscellaneous Section 813
would deem tribal contractors and compactors as ordering agents of the Indian
Health Service. We recommend that this language be revised to be consistent with
the language in H.R. 1167 that authorizes tribal access to Federal sources of
supply only for the purposes of carrying out an agreement under the Indian Self-
Determination and Education Act.
This title establishes a National
Bi-Partisan Commission on Indian Health Care Entitlement. This commission would
be comprised of members of Congress, Tribal leaders, and Urban Indian health
leaders to study the desirability and feasibility of making Indian health an
entitlement. While many Tribal leaders and Indian people believe that the
provision of health care to them should be a legal entitlement, there are many
questions regarding the ramifications, including the costs, of such an
entitlement.
Mr. Chairman, this concludes my statement. Thank you for
the opportunity to discuss the reauthorization of the Indian Health Care
Improvement Act. We will continue to analyze the implications of this expansive
legislation and will be happy to work with the committee and the Indian Health
Care National Tribal Steering Committee to address the Administration's
concerns. As we move into the new millennium, we must acknowledge and fulfill
the long overdue obligation to advance the health status of Indian people to the
highest possible level. We will be happy to answer any questions that you may
have.
END
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