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33–962 PDF 2007

S. HRG. 110–53

INDIAN HEALTH CARE IMPROVEMENT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

INDIAN HEALTH CARE IMPROVEMENT ACT

MARCH 8, 2007

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BYRON L. DORGAN, North Dakota, Chairman

CRAIG THOMAS, Wyoming Vice Chairman

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

CLAIRE McCASKILL, Missouri

JON TESTER, Montana

JOHN McCAIN, Arizona

PETE V. DOMENICI, New Mexico

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

SARA G. GARLAND, Majority Staff Director

DAVID A. MULLON JR. Minority Staff Director

(II)
(III)

C O N T E N T S

Page

Statements:

Agwunobi, John, assistant secretary for health, Department of Health

and Human Services ..................................................................................... 4

Beckner, III, C. Frederick, deputy assistant attorney general, Department

of Justice ........................................................................................................ 6

Brannan, Richard, chairman, Northern Arapaho Business Council ............ 21

Coburn, Hon. Tom, U.S. Senator from Oklahoma ......................................... 2

Dorgan, Hon. Byron L., U.S. Sentor from North Dakota, chairman, Committee on Indian Affairs ............................................................................... 1

Gage, Steve, director, Community Health Aide Program, Southeast Alaska Regional Health Consortium .................................................................. 29

Grim, Charles W., director, IHS, Department of Health and Human Services .................................................................................................................. 4

Inouye, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 8

Joseph, Rachel A., cochair, National Steering Committee on the Reauthorization of the Indian Health Care Improvement Act .......................... 24

Lazarus, Edward P., partner, Akin, Gump, Strauss, Hauer, and Feld,

LLP ................................................................................................................. 27

Murkowski, Hon. Lisa, U.S. Senator from Alaska ......................................... 18

Tester, Hon. Jon, U.S. Senator from Montana ............................................... 9

Thomas, Hon. Craig, U.S. Senator from Wyoming, vice chairman, Committee on Indian Affairs ............................................................................... 4

APPENDIX

Prepared statements:

Agwunobi, John ................................................................................................ 37

Beckner, III, C. Frederick ................................................................................ 40

Brannan, Richard ............................................................................................. 47

Bursell, Sven-Erik, Joslin Diabetes Center .................................................... 51

Gage, Steve (with attachment) ........................................................................ 54

Gerald, Forrest J., enrolled member, Blackfeet Tribe ................................... 63

Hunter, Terry L., executive officer, Oklahoma City Indian Clinic ............... 43

Inouye, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 45

Joseph, Rachel A. ............................................................................................. 68

Lazarus, Edward P. .......................................................................................... 81

McCloud, Duke ................................................................................................. 101

Tester, Hon. Jon, U.S. Senator from Montana ............................................... 45

Additional material submitted for the record:

Greendeer, Samantha, legislative counsel, Ho-Chunk Nation recommendation ................................................................................................. 108

(1)

INDIAN HEALTH CARE IMPROVEMENTS ACT

THURSDAY, MARCH 8, 2007

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 9:32 a.m. in room 485,

Russell Senate Office Building, Hon. Byron L. Dorgan (chairman of

the committee) presiding.

Present: Senators Dorgan, Coburn, Inouye, Murkowski, Tester,

and Thomas.

STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM

NORTH DAKOTA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. We will call the hearing to order.

This is a hearing of the Senate Committee on Indian Affairs

dealing with the Indian Health Care Improvement Act. I would like

to make just a couple of brief opening comments.

First, the U.S. Senate has now approved, after 2 long years, a

new assistant secretary for Indian Affairs in the Department of the

Interior. I have said previously that it is shameful that position

was open for 2 full years. This is the position that has responsibility for the management of the Indian programs. It has been a position that has been around since I believe 1806, and for 2 full years

it was unfilled. It is unbelievable to me.

We finally now have approved the President’s nominee, someone

I supported last year, someone I supported this year. I pushed very

hard to force a vote in the U.S. Senate. What we have discovered

from the vote is that one U.S. Senator had held that up, one. Senators have certain rights, but it seems to me to have been exercised

at the expense of American Indians and Indian programs. I regret

that, but nonetheless, that is done.

Second, this issue of Indian health care is a very important issue.

We had people at that table just recently describe to us the health

care issues, the difficulties, a doctor describing a patient coming to

him that had been to the Indian Health Service with a knee that

had a very serious torn ligament, and was told to wrap it in cabbage leaves for 4 days and come back. The stories are unbelievable.

Look, we have a serious problem in Indian health care. We have

tried very hard to reauthorize the Indian Health Care Improvement Act, and I can’t tell you how frustrated I am and how frustrated Senator McCain was in the last Congress when every single

time we would try to move this, we would have an objection from

somewhere, sometimes in HHS, sometimes in Justice. No matter
2

what we did, there was always another objection, and this never

moved.

This time it is going to move. People can object if they want.

They can vote against it if they want, but we are not going to

spend 24 months trying to figure out where HHS is, where the Justice Department is, where their next urge or hits might come from.

I want consultation. I want to hear your thoughts. I am very

pleased you are here today, I say to Justice and HHS, but I want

to work with members of this committee and my vice chairman and

pass a reauthorization of the Indian Health Care Improvement Act

at long, long last, an Improvement Act that we can improve even

further in this session of the Congress.

I just want to start by saying I sound a little crabby about this.

I am crabby about this. I am upset after 2 full years. Every single

time we would make a proposal, there was another objection. And

it never moved. This time it is going to move, one way or the other.

We are going to be voting on the proposal on the floor of the Senate.

I say to the Justice Department, Health and Human Services,

the Administration, all of my colleagues, let’s all cooperate, provide

input. We want to hear from everybody, to provide the best product

we can, develop the best product we can, and then I am going to

push it because I think it is long, long overdue. We have a bona

fide crisis in Indian health care. I won’t recite the statistics or I

won’t recite the anecdotes today, but I can if necessary.

I really appreciate my colleague, Vice Chairman Thomas, here;

my colleague Dr. Coburn. My understanding is Dr. Coburn has a

couple of other committee markups and assignments that are meeting this morning, so I will call on the vice chairman, unless he

wishes to relinquish.

Let me then call on Dr. Coburn for an opening statement so that

he can then depart.

STATEMENT OF HON. TOM COBURN, M.D., U.S. SENATOR FROM

OKLAHOMA

Senator COBURN. Thank you.

I would like unanimous consent that a full opening statement by

me be added to the record.

I just want to make some comments. I was one of the ones holding the Indian Health Care bill. To modify in a very small way,

without significant improvements, Indian health care is a violation

of our duty. What we have today is not tolerable, but to not fix it

right is absolutely intolerable. When we tell people more of the status quo, where people will not get the care they need, and not to

have a major, and I am talking major reorganization of the way we

deliver health care to the tribal citizens in this Country, that gives

flexibility, opportunity and choice, that puts them on a par with everybody else in this Country, rather than to give them second and

third tier care, I will continue to hope.

So I look forward to working with the Chairman, but the tribal

citizens of this country deserve at least as equal a health care as

everybody else in this Country. I intend to offer amendments to

give them the option, if they don’t have available care, to use their

rights as tribal citizens to get care at any Medicare-approved facil-
3

ity in this Country. If in fact we have an obligation, then we have

an obligation to make sure they have the exact same level of care

as they can get anywhere else.

I would put forward, we have the Chickasaw Nation in Oklahoma. They are trying to develop health care. They have been stymied in every way as they develop this new hospital and health

care center, to tell them what they can’t do, when they are trying

to do and give and offer better care for their tribal citizens, because

they have some resources. And then we take away resources that

the Government offers saying you can’t do it that way.

We have to build in flexibility in any reauthorization, and we

have to make sure that our goal is at least equal health care for

what everybody else in this Country is getting. Anything less than

that is a violation of our good faith trust to the tribal citizens of

this Country. I pledge to you, Mr. Chairman and Mr. Vice Chairman, that I will do everything in my power to do that.

I am introducing a Global Health Care bill next week to reform

health care all the way across this Country, that gives access to everyone in this Country, everyone, so that no one is denied care, but

that care has to be quality care, and we can’t call it ‘‘care’’ if it is

not quality care. We do great injustice not only to this institution,

but under our duties of the treaties that we are faced with, if we

give less than great quality care to tribal members.

I thank you for the time.

[Prepared statement of Senator Coburn appears in appendix.]

The CHAIRMAN. Let me be clear, you have not been the one holding up the assistant secretary for Indian Affairs. You were not. One

Senator did that, regrettably. In my judgment, you didn’t hold up

anything in the last session on Indian health care because what

happened in the last session on the Indian Health Care Improvement Act, month after month after month, we would get new objections and new objections from HHS and from Justice. You just

couldn’t solve the issues.

So I will commit this to you. We are going to write this bill, introduce it. You are going to have a significant role in providing

input. You are a doctor. You have a great deal of experience in

these areas. We can provide a bill that doesn’t advance the status

quo. I have very little interest in advancing the status quo of a system that is not working as well as it should.

These folks represent the Administration. They have asked for a

certain amount of money. You might say the issue isn’t money. It

is not completely money, but you have to have the funds to provide

for health care. When a woman is brought in on a gurney with a

piece of paper taped to her leg, and she is having a heart attack,

and the piece of paper says:

By the way, hospital, if you admit this person, understand that Contract Health

Care is gone. This is not life and limb and you may not be paid for this.

I am just saying, I think that sort of thing is shameful. We need

to provide whatever funding is necessary.

I am anxious to have your input because you know a lot about

this. We are going to work on a bill, get a good bill, one that we

can be proud of, and then we are going to push like the dickens

to get it done finally at long, long last.

Senator COBURN. You have my commitment to work with you.
4

The CHAIRMAN. Senator Thomas.

STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM

WYOMING, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator THOMAS. Thank you very much, Mr. Chairman, and

thank you for being here.

I am delighted that we are having this hearing. I think we do

need to take a look and make sure we advance this legislation, incorporating the best practices that we can. I think we have to work

with other committees. There is divided jurisdiction over this thing.

I do need to say, however, at least from our experience, Indian

health care has not been all that bad. In our communities, we are

looking at a community health center, for example, between the

local community and the tribes. The tribal people have gone to the

other community to sek ways for improvements.

So we need to make sure we do the best that we can, but I hope

we are not overly critical of what we have had. At least in our community, it has been pretty good health care. We need to make sure

it continues to stay that way. So I get a little taken away with

being terribly negative about it.

At any rate, I look forward to the witnesses and their testimony.

We ought to get this bill out of here and get it in good shape.

Thank you.

The CHAIRMAN. Senator Thomas, thank you very much.

The first panel is Dr. John Agwunobi, who is the assistant secretary for Health at the Department of Health and Human Services. He is accompanied by Dr. Charles Grim, the director of the

Indian Health Service at HHS. We also have Frederick Beckner,

III, deputy assistant attorney general, Department of Justice.

Let’s start with you, Dr. Agwunobi. Thank you for helping me

pronounce your name before this hearing started.

STATEMENT OF JOHN O. AGWUNOBI, ASSISTANT SECRETARY

FOR HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES, ACCOMPANIED BY CHARLES W. GRIM, DIRECTOR, INDIAN HEALTH SERVICE

Mr. AGWUNOBI. Thank you, sir. I think I was 12 years old before

I could pronounce it as well as you just did. [Laughter.]

Thank you.

Good morning, Chairman Dorgan and distinguished members.

My name is John Agwunobi and I am the assistant secretary for

Health for the Department of Health and Human Services. As the

assistant secretary, I serve as the Secretary’s primary adviser on

matters involving the Nation’s public health. I oversee the Public

Health Service, of which Indian Health is one of those agencies.

I am joined by Dr. Chuck Grim. He is a personal friend and a

great leader. He is also the director of the Indian Health Service.

I am honored to testify before you today on the important issue

of the reauthorization of the Indian Health Care Improvement Act.

The Department’s mission is to uphold the Federal Government’s

responsibility to promote healthy American Indian and Alaska Native people, communities and cultures, and to honor and protect the

inherent sovereign rights of the tribes that we work with.
5

We are committed to working in partnership with tribes to improve the health of Indian people and to eliminate health disparities through health promotion, disease prevention, behavioral

health, and chronic disease management.

The Indian Health Service is the principal Federal health care

provider to the American Indian and Alaska Native peoples. As

part of the Federal Government’s special relationship with tribal

governments, IHS provides health care to 1.8 million members of

the more than 560 federally recognized tribes. The Indian Health

Care Improvement Act forms the backbone of the system through

which Federal health programs serve and encourage participation

of eligible American Indians and Alaska Natives.

Since the enactment of the law in 1976, statutory authority has

substantially expanded programs and activities to keep pace with

changes in health care services and administration. Federal funding has contributed billions of dollars to these efforts over the

years.

We are happy to see that this has led to significant achievements

in improving Indian health. From 1973–2002, infant mortality

among American Indian and Alaska Natives decreased 60 percent.

Tuberculosis deaths over the same period of time dropped 80 percent. And many other categories of mortality such as pneumonia,

influenza, cervical cancer, and cardiovascular illness have all decreased.

However, I don’t want to imply that we don’t still face significant

challenges, because we do. In this position, the position of assistant

secretary for health, I have had the honor of traveling with Chuck

and others on his team to tribal country, and quite frankly, it was

a humbling experience for me. I met with tribal leaders and others

in those communities. I now have first-hand understanding of the

problems they face, we face.

Major disparities in health status and health outcomes continue.

Death from diabetes, alcoholism, and injuries occur in far greater

numbers than in other populations. We have an obligation to address these very serious health challenges. That is why the President’s budget demonstrates a commitment to address the priorities

identified by tribes through our annual budget consultation process

with increases in funding. That is why the Department strongly

supports reauthorization of the Indian Health Care Improvement

Act at the soonest possible opportunity.

We have worked closely with this committee in the past, and we

have made progress in moving toward legislation that the Department can support. We appreciate that Congress has responded to

many of the Department’s concerns, especially those related to secretarial management authority.

Last year’s bill continued to contain certain provisions which

may have negatively impacted our ability to provide needed access

to services. Such provisions established program mandates and

burdensome requirements that might have diverted resources from

important services.

However, we are confident that we can work with this Congress

to continue to address these concerns, and agree on legislation that

will live up to our mission to raise the health of American Indians

and Alaska Natives to the highest level.
6

Once again, sir, I appreciate this opportunity to appear before

you to discuss reauthorization of the Indian Health Care Improvement Act, which we support. I will answer any question that you

may have at this time.

I thank you, sir.

[Prepared statement of Dr. Agwunobi appears in appendix.]

The CHAIRMAN. Dr. Agwunobi, thank you very much.

Dr. Grim, do you have testimony?

Mr. GRIM. No, sir.

The CHAIRMAN. Okay, you will be available to answer questions

as well.

Mr. Beckner, thank you very much for being here. I think it is

the first time we have had someone from the Department of Justice

testifying on this matter. We have asked you to be here specifically

because we have had rather repeated and routine objections.

Maybe I shouldn’t characterize them as routine. We have had repeated objections as we have moved along trying to write this legislation from the Justice Department, and we wanted to have testimony from the Justice Department this morning. We appreciate

very much your being here. You are the deputy assistant attorney

general.

STATEMENT OF C. FREDERICK BECKNER, III, DEPUTY

ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. BECKNER. Thank you, Mr. Chairman, and good morning.

As you mentioned, I am the assistant deputy assistant attorney

general for the civil division of the Department of Justice. Thank

you very much for the opportunity to share the views of the Department of Justice on the reauthorization of the Indian Health

Care Improvement Act.

As of today, the Department of Justice has not had the opportunity to fully review the current version of the proposed legislation. We are not therefore in a position to provide specific comments on this legislation.

That said, the Department strongly supports the laudable objectives of improving Indian health care for American Indians and

Alaska Natives. The Department looks forward to continuing to

work with the committee to achieve these goals. The Department

worked extensively with the committee and met with representatives of the American Indian community on a prior version of this

legislation. We expect that this cooperative relationship will continue as the Department reviews the current legislation.

In commenting on the prior legislation, the Department identified targeted concerns that could be, and for the most part were in

fact, addressed with relatively modest changes to the legislation,

but did not detract from the overall goal of improving health care

for American Indians and Alaska Natives.

For example, in an earlier version of the proposed legislation, the

Department of Health and Human Services and Indian tribes could

enter into self-determination contracts that covered tribal traditional health care practices. Such practices are unique to American

Indian tribes and cannot be evaluated by established standards of

medical care recognized by State law.
7

The Department was concerned that if a party sued the United

States under the Federal Tort Claims Act for an injury allegedly

caused by a traditional health care practice, the Department might

not be able to meaningfully defend the case, and particularly the

Department was concerned that the courts might incorrectly, in the

Department’s view, conclude a viable cause of action exists under

the FTCA because traditional tribal practitioners are providing

medical services and that these services do not comply with standards of the relevant State’s medical community.

Consequently, we met with representatives of the American Indian community and worked extensively with the committee late

last year to add language that would have clarified that the United

States and ultimately the taxpayers would not be liable for malpractice claims under the FTCA arising out of the provision of traditional health care practices. This language would not have impacted other tort suits that could be brought against the United

States for other services provided under self-determination contracts.

The Department also expressed its concern regarding a provision

that would have extended FTCA coverage to persons who are providing home-based or community-based services. These services are

sometimes provided by relatives and in many instances there are

no established standards for such lay person care or for the environment in which they are provided. To address these concerns, the

Department worked with committee staff on language that would

have clarified that home-based or community-based services that

can be provided under self-determination contracts are those for

which the Secretary of the Department of Health and Human Services had developed meaningful standards of care.

Similarly, the Department expressed concerns in previous versions of the bill regarding the possibility of unlicensed individuals

providing mental health treatment to American Indians and Alaska Natives. In a previous version of the bill, the Department

worked with the committee to add language that would have ensured a licensing requirement for providing mental health services,

and we believe the change was in the interests of both the United

States and the Indian community.

Finally, the Department noted its concern that previously proposed legislation may raise a constitutional issue. We had previously attempted to work with the committee to address this concern, but unfortunately resolution was not attained. Most of the

programs authorized by the current law or that would have been

authorized by the previously proposed legislation tie the provision

of benefits to membership in a federally recognized Indian tribe,

and courts therefore likely would uphold them as constitutional.

The Supreme Court has held that classifications based on membership in a federally recognized tribe are political, rather than racial,

and therefore would be upheld as long as there is a rational basis

for them.

Congress may also have limited authority to provide benefits

that extend beyond members of federally recognized tribes, to individuals such as spouses and dependent children of tribal members,

who are recognized by the tribal entity as having a clear and close

relationship with the tribal entity.
8

To the extent, however, that programs benefiting urban Indians

under current law or in the prior version of the bill could be viewed

as authorizing the award of grants for other governmental benefits

on the basis of racial or ethnic criteria, rather than tribal affiliation, these programs would be subject to strict scrutiny under the

Supreme Court’s equal protection jurisprudence.

For example, the statute in the previous reauthorization bill

broadly defined ‘‘urban Indian’’ to include individuals who are not

necessarily affiliated with a federally recognized Indian tribe, including descendants in the first or second degree of a tribal member, members of a State recognized tribe, and any individual who

is an Eskimo, Aleut, or other Alaska Native. There is a likelihood

that legislation providing special benefits to such individuals might

be regarded by the courts as a racial classification subject to strict

scrutiny, rather than a political classification subject to rational

basis review.

This distinction is important because if the legislation awards

Government benefits on grounds that trigger strict scrutiny, courts

may uphold the legislation as constitutional only upon a showing

that its use of race-based criteria to award the subject benefits is

narrowly tailored to serve a compelling governmental interest.

In closing, the Department believes that any proposed legislation

regarding Indian health care is important and significant. We are

grateful for the opportunity to share our views with the Committee.

As we have in the past, we look forward to working with the Committee on this important piece of legislation.

[Prepared statement of Mr. Beckner appears in appendix.]

The CHAIRMAN. Mr. Beckner, thank you very much.

We have been joined by Senator Inouye, who has for many years

previously been chairman and ranking member of this committee.

Senator Inouye, welcome.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII

Senator INOUYE. Thank you very much. I am sorry I am late. The

usual thing happened, a motorcycle collided with a bus.

The programs and services covered by the measure before us are

based upon a government-to-government relationship that Presidents Nixon, Bush, Carter, Reagan, Clinton, and the present Bush

have all consistently reaffirmed as a Federal Indian policy of our

Country.

Furthermore, the U.S. Constitution recognizes tribal governments as sovereign governments. In article I, section 8, clause 3,

the Congress is vested with the authority to conduct relations with

the several States, foreign nations, and Indian tribes.

Therefore, this bill should not be viewed as race-based, but rather legislation by which Congress is exercising its authority to address deficient health care conditions in Indian country. Therefore,

I commend my colleagues, and particularly the chairman, Chairman Dorgan, for holding this hearing on this bill that provides crucial health care programs and services to Indian country.

Mr. Chairman, may I ask that my full statement be made part

of the record.

The CHAIRMAN. Without objection, Senator Inouye.
9

[Prepared statement of Senator Inouye appears in appendix.]

The CHAIRMAN. Thanks for your comments and your long experience on this committee.

Senator Tester, welcome.

STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM

MONTANA

Senator TESTER. Yes; thank you, Mr. Chairman. I also want to

thank you for having this hearing. I would just ask unanimous consent that my remarks be added to the record. I have them here,

but we might as well proceed.

Sorry for being late, but I have to leave early, too, to sorry about

it on both counts. Thank you.

The CHAIRMAN. Thank you very much.

[Prepared statement of Senator Tester appears in appendix.]

The CHAIRMAN. Let me ask a couple of questions of Mr.

Agwunobi and Dr. Grim. It relates in some measure to what my

colleague, Senator Thomas, was observing.

Look, there are areas, I think, of unbelievable care, for which I

am deeply indebted. I have great admiration when I go to clinics

in various places and see folks in the Indian Health Service and

the Public Health Service working, often for less money than they

could make elsewhere, very dedicated to their service.

Yet, my observation is that we are woefully short of that which

is necessary. Let me give you an example, and see if you agree, Dr.

Agwunobi. I will give you an example of one tribe. It applies to

every tribe I visited. A young girl hangs herself, aged 14. She lies

in bed in a fetal position for 90 days before she hangs herself and

commits suicide. She misses school, the whole thing. Her sister had

committed suicide 2 years before. Her father had taken his life 6

years before. Her mother was drug-dependent. So this young girl

just falls out of the view of people and lies in bed for 90 days,

misses school, and finally takes her own life.

I went to the reservation. Her name was Avis Little Wind. I say

her name with the consent of the remaining family. I went to the

reservation and talked to the tribal leaders, talked to the school officials, talked to her extended family. What I found is exactly what

I found elsewhere. There wasn’t a ghost of a chance of this young

girl getting the psychological help she needed. There wasn’t even

a car to drive her to a clinic had there been a clinic that provided

the professional resources. They would have to beg and borrow a

car to get Avis to a clinic. It wouldn’t matter to get her to a clinic,

they didn’t have the capability.

And that is true. You know, you talk about improvements, Indian

kids have 10 times the rate of suicide of the national average in

the northern Great Plains; a 600 percent higher tuberculosis rate;

500 percent higher alcoholism rate; and so on.

So my point is, maybe we have made improvement in some

areas. Some of the discussion about diabetes, I am heartened by

some of the research and some of the treatment. But I just think

we have a huge hill to climb here to address these unbelievable

problems. And the victims, kids like Avis Little Wind, who felt

hopeless and helpless and took her life, their memories cry out for
10

us to do something. Senator Coburn said it, let’s just not do something and say it is good enough. Let’s do something that works.

You talked about improvements, and I don’t want to denigrate

improvements at all, and don’t want to denigrate the people that

work for the IHS and public health, but boy, I tell you, I get so depressed sometimes when I see the lack of services. Tell me your impression of that.

Mr. Agwunobi. Sir, I have been on the job now for about 11⁄2

years. Very early on in that tenure, Admiral Grim reached out to

me and he said, John, let me show you something. You are a public

health worker. You have worked at the State level for years, but

I want to show you something you have not seen.

He sent me out to I believe it was the Crow Nation, just south

of Billings, MT. The tragedy of the story that you describe, sir, and

it is a tragedy as an individual case, but the real tragedy is that

it is not uncommon. The stories that I heard when I visited the

tribal nation there and the stories that I have heard from tribal

leaders since then would say it is actually fairly common.

So I concur completely. The Administration concurs completely.

I have been sent today not only to support Chuck, but to be a symbol of our commitment, our recognition of the fact that we have to

do this now. My job, as the public health service coordinator, is to

make sure that within our Department, across the different agencies, that we get it done and we get it done quickly.

I am going to be working between the scenes, working in the

background to support Admiral Grim, to support you, sir, and this

Committee in trying to get this bill reauthorized.

The CHAIRMAN. Could I ask, my understanding is that for every

100,000 American Indians, there are about 90 doctors. For every

100,000 Americans, there are about 239 doctors. It is about 2 to 1.

Is that a close approximation, Dr. Grim?

Mr. AGWUNOBI. Admiral Grim whispered to me that it is correct,

but I will let him say it louder so everyone can hear.

Mr. GRIM. Yes, sir; those statistics are correct.

The CHAIRMAN. Does that statistic have any relevance at all with

respect to a potential level of care, the potential to receive the kind

of treatment one needs?

Mr. GRIM. One would assume that it does. One of the things that

we are trying to do new, though, that I would like to mention to

you, is that we are working with an internationally renowned institute called the Institute for Health Care Improvement to try to develop a new model of care around the management of chronic diseases. That includes behavioral health sorts of diseases, integrating

behavioral health, the kind of care that Avis could have used, into

our primary care delivery system. We have 14 pilot sites under test

right now. We are manipulating an evidence-based tested model so

that it will work in our system. So we are trying to work smarter

and more efficiently, too, within the limited resources that we do

have.

The CHAIRMAN. And we have been working, as you know, on the

telemental health side as well to address it.

Let me ask you one other quick question, and then I am going

to ask Mr. Beckner a question, then turn it over to the vice chairman.
11

You know I am interested in the issue of a new medical model

of convenient care on Indian reservations. I know of one reservation, they have a fine clinic. It is old and it obviously is not up to

date, but the people there are great. They are trying as hard as

they can. But I think it is 9 o’clock to 5 o’clock. It closes at 5 o’clock

on Friday. This is a remote reservation. If at 6 o’clock on Friday

night you have a problem, you are in trouble. You are going to have

to go about 90 miles.

My hope is that we can develop a new model of convenient care,

using physician assistants and nurse practitioners, you know, convenient hours, long hours, 7 days a week in some of these walkin clinics on reservations, because they are so remote.

Are you interested in working with me and the committee to see

if we can find a way to do that?

Mr. GRIM. Very much. I think a lot of the ideas you have are important and very valid. Some of our locations where the staffing allows, we do have extended hours and the patients have proven to

like that very much. So the Administration wants to work closely

with you on it. We have a lot of new models of health care we are

testing. We are excited about your additions of telehealth for psychiatry and things like that. You are going to hear a little bit about

in the next panel about the use of telemedicine with our Community Health Aid Program up in Alaska.

We are very interested in showing you innovative models that we

are already using internally, plus talk about models that we aren’t

right now that the committee would like to discuss.

The CHAIRMAN. Thank you, Dr. Grim.

Mr. Agwunobi, what you have said today gives me some heart

because you say you want to work through the crevices and the

cracks, and try to form some joints here between all of the agencies

to find a way for us to improve things and get things done. So you

can be sure that we, the minority and the majority on this committee, want to work with you and work with you very closely, along

with Dr. Grim, and see if we can make some significant progress.

Mr. Beckner, very quickly, as you know, there are legal discussions about this issue of the constitutional issues that you raised

today. I don’t dismiss them and don’t suggest they are not without

some interest to us and concern to us, but we need to find a way

to address them. I have been frustrated in the way the Justice Department has connected to the committee.

I hope that we can work with you the same way that Dr.

Agwunobi has committed to work with us. Let’s find a way to address these and solve them, and perhaps we will even in the end

disagree, but at least we will have had a good exchange and then

we can put a bill together and proceed, even knowing what the disagreement might be.

Would you be willing to work with us on that basis? I don’t want

to wait until October or November or December of this year. I want

to put this together and begin moving the legislation.

Mr. BECKNER. I can answer that question in one word: Yes, we

would be happy and delighted to work with the committee. In fact,

we worked extensively with the committee last year and addressed

all our liability concerns, and did not oppose passage of S. 4122.

Our liability concerns were addressed in S. 4122 and we did not
12

oppose passage of that legislation. We look forward to working just

as cooperatively with this committee on the next version of the bill.

The CHAIRMAN. All right. I am going to send you some written

questions, with your permission, and would ask both to be available.

Senator Thomas.

Senator THOMAS. Thank you, Mr. Chairman.

Doctor, you in your comments talked a little bit about rulemaking as time consuming. However, isn’t it true that negotiated

rulemaking can result in probably better results than having to go

to court and so on?

mr. AGWUNOBI. Sir, there are obvious advantages to negotiated

rulemaking in many settings. Our concern relates to any language

that would constrain the Secretary from his ability to reach out to

tribes in direct conversation and direct consultation, and to meet

needs as they arise over time.

Senator THOMAS. All right. You talk about the flexibility for the

Secretary to do that. The tribes also should be afforded flexibility,

don’t you agree with that?

Mr. AGWUNOBI. Yes; I would concur.

Senator THOMAS. What is the involvement with tribal members

or Indians on Medicare and Medicaid?

Mr. GRIM. The Department has established in the last couple of

years a group called the Tribal Technical Advisory Group. CMS established that in consultation with tribal leadership. There are representatives from each region, each Indian Health Service region of

the Country, and then also from several of the major tribal groups

that comprise tribal leaders. CMS holds regular meetings with

them to discuss policy issues.

Senator THOMAS. I am talking about what percentage of the tribal members actually are signed up to involve themselves in part D

of Medicare?

Mr. GRIM. I don’t have those numbers off the top of my head,

Senator, but we do have numbers of how many tribal members we

have signed up under the new Medicare part D legislation, and we

can provide that to you for the record.

Senator THOMAS. Do you encourage that? Why wouldn’t you?

Mr. GRIM. Yes, sir.

Senator THOMAS. I understand, where you have tribes that are

a long ways away, but the tribes I represent, for instance, are right

outside the town, and they can participate fully, can’t they, in these

other programs?

Mr. GRIM. Yes, sir; we are encouraging that. All of our patients’

benefits coordinators have been trained on how to educate and get

people enrolled in Medicare part D. We played a large part in the

Department in both supporting that and trying to get our members

enrolled in that. We are very supportive of it.

Senator THOMAS. I am obviously very much for an Indian Health

Program because it has unique aspects, but on the other hand I

think we ought to recognize that these folks are eligible to participate in the same program that you and I are.

Mr. GRIM. Yes, sir; we sign them up for Medicare and Medicaid,

if they have private insurance. And that is one of the things that

we pointed out to Senator Dorgan and some of his questioning in
13

the past is that we try to use all those alternate resources before

we use our contract health services budget to pay for things.

Senator THOMAS. I guess that is particularly true about the detailed kinds of unique treatments.

Mr. GRIM. Yes, sir; especially for a lot of specialty care that we

can’t provide in our setting.

Senator THOMAS. Specialty care and so on you are not going to

provide. I think we need to recognize that and get this combination

of things going as well.

Mr. Beckner, I guess I am a little surprised you say you have not

had a chance to look at the bill. You have people to do that, don’t

you?

Mr. BECKNER. Yes; we do have people to look at the bill, but I

don’t believe they have been provided the current version fo the

bill.

Senator THOMAS. But it is generally not too much different than

it has been and so on.

Mr. BECKNER. Then we look forward to working with you. If it

is not too much different, we would expect our concerns to be pretty narrow or possibly already resolved.

Senator THOMAS. That is really how it kept from happening last

time, wasn’t it, the concerns that the Department had and so on?

Mr. BECKNER. Kept what from happening, Senator?

Senator THOMAS. Kept us from passing the bill.

Mr. BECKNER. I don’t believe so, Senator. Our concerns were resolved with S. 4122, and we did not oppose passage of S. 4122. We

did not object to it. Our liability concerns were resolved and we did

not object to its passage.

Senator THOMAS. Okay, good.

If State law doesn’t impose medical malpractice liability, how

would the United States be liable?

Mr. BECKNER. Are you referring to traditional tribal healing

practices?

Senator THOMAS. Yes.

Mr. BECKNER. If there is no cause of action for malpractice for

tribal healing practices, then the United States could not be held

liable for those practices.

Senator THOMAS. Okay.

Mr. BECKNER. We believe that is the better reading of the law

today, and we were seeking just clarification in the passed Act that

that was the case.

Senator THOMAS. You referred in your written testimony to medical community standards. What is that?

Mr. BECKNER. Well, ordinarily in an ordinary medical malpractice case, the way that they are resolved is by looking at how

medicine is practiced in the prevailing medical community. Under

State law, that is ordinary State medical practitioners. So if you

had an open heart surgery and something went wrong, they would

look to how the ordinary standard of care that was provided by the

medical licensed open heart practitioners, and judge whether the

care you received was deficient relative to that standard.

Senator THOMAS. I see. Well, the Department dropped their objections at the very last minute, so we are going to have a little

different arrangement this time, do you think?
14

Mr. BECKNER. Dropped our objection to what?

Senator THOMAS. To the bill last year. That is the reason why

it didn’t pass.

Mr. BECKNER. We are prepared to work very cooperatively and

I would hope that we would be able to resolve any issues we have

with the current version of the bill readily and as quickly as possible.

Senator THOMAS. Good. Have there been any medical malpractice

lawsuits arising from traditional health care practices?

Mr. BECKNER. Have there been any?

Senator THOMAS. Yes.

Mr. BECKNER. Not that I am aware of, sir.

Senator THOMAS. Okay.

Thank you, Mr. Chairman.

The CHAIRMAN. Senator Tester.

Senator TESTER. Thank you, Mr. Chairman.

As I have been fairly active getting around the State of Montana

the last couple of years, there are all sorts of stories out there dealing with health care from the non-Indian population. And then you

walk onto Indian Country and those horrors are compounded tenfold. I appreciate the fact that you visited the Crow Reservation.

I think it is fair to say most of the tribes in the northern Great

Plains are in that same situation.

It is the biggest concern I hear about when I go in Indian country. I was on the Salish Kootenai Tribe last weekend. A good portion of that meeting was eaten up by health care concerns. It is a

very, very critical issue, both from access and availability. I don’t

have to tell you that if you happen to get sick at the wrong time

of the year when the budget runs out, you can’t get services.

It is not an easy problem to solve. It is a problem that quite

frankly is a bit overwhelming to me, but it is a problem that has

to be solved.

My question to you is, do you have any ideas on how we can deliver health care better in Indian country, and quite frankly, in the

urban centers, too, off the reservations? Are there any ideas? Does

it solely revolve around money resources? Or are there other things

we can do? I know it is a pretty broad question, but you can answer any way you would like.

Mr. AGWUNOBI. Thank you, sir. I think one of the most important

things that we can do in the near term is to reauthorize the Indian

Health Care Improvement Act. I am very clear in my mind on that.

My colleague, Admiral Grim, and I have had long conversations

about the fact that getting it done, not only does it relate to what

is in the bill, but it is a symbol of our commitment as a Nation.

Senator TESTER. Let’s just assume that it is passed and it is

done. What is the next step?

Mr. AGWUNOBI. I think there is an ongoing need for us to address

access issues. One of the things that we are working with with the

Indian Health Service is trying to make sure that they are fully

staffed, their need for nurses and for doctors, that we find ways either through the U.S. Public Health Service Commission Corps or

other ways to make sure they have access to the staff, the kinds

of staff that they need, such as mental health providers, nurses,

physicians, dentists.
15

I do think we also have to keep our mind and our focus on the

fact that there are emerging threats that threaten to compound

this circumstance even more, methamphetamine abuse for example, and the epidemic of use that is tearing into many of these communities.

I think when all is said and done, it is going to require that we

consult with the tribes themselves, that they help give us the ideas

of how we might be able to help. These are sovereign nations,

proud people, and they need to be a part of the solution in terms

of its design.

I will turn to my colleague to see if there is anything else you

want to add.

Mr. GRIM. I would just say I agree 100 percent with what Admiral Agwunobi says. There are a lot of innovative things going on

within Indian Health Service. The thing that we haven’t done is

that we haven’t spread some of those innovative things all over the

country. We are looking at methods to do that now. I think that

is an advantage of our system, that we can rapidly spread best

practices or new things that we are learning in one place rapidly

across our system, whether they are the Federal system or the tribal system.

We are working on really that methodology right now. We have

done it in diabetes. We have become world renowned, I think, in

that in the way we have dealt with diabetes. We are starting to do

that in chronic care now and in behavioral health.

So that is part of working smarter within the system that we

have or bringing in new innovations that this committee might

want to discuss. That is some of the things we are looking at for

the future.

Senator TESTER. I appreciate your respect for the sovereignty

issue. I also appreciate your comment about working together to

find solutions, and listening, because I think that is critical.

I also appreciate the fact that you are using best practices in

other areas and trying to spread them around the Country.

I also appreciate your haircut, by the way. [Laughter.]

Mr. GRIM. I like yours, too. [Laughter.]

Senator TESTER. The next question I had was, is has there been,

are you actively seeking communication from individual sovereign

nations? I would like to ask in Montana, specifically, but it is important all over the Country. Has that dialogue started? Is it continuing? Is it regular? Because quite frankly, sometimes I wish I

was still on the farm so I didn’t have to deal with these kinds of

issues, because I am telling you, it is serious, serious business. If

we don’t address these problems, they are only going to get far, far

worse. So has that dialog been going on and is it going to continue,

and with what kind of regularity?

Mr. AGWUNOBI. I will start, and then turn it over to my colleague. It has absolutely started. The notion of consultation is

something we believe is an obligation on our end, to uphold and facilitate. My trip to Billings and then on down into Crow country

was a beginning of a larger commitment. I have spoken with tribal

leaders and committed to coming to them, not just having them

seek us out, but coming to them. And I came to that community

to listen to what are the needs, how can we help.
16

The answer, sir, is yes, yes, yes, and yes. We have started talking. We are going to continue talking. And we are going to increase

our communication. ‘‘Talking’’ is perhaps the wrong word. We are

going to increase our listening, not just hearing, but listening.

Senator TESTER. I appreciate that.

Thank you.

The CHAIRMAN. Thank you very much, Senator Tester.

Before I turn to Senator Murkowski, Mr. Beckner, Vice Chairman Thomas was asking you some questions. I felt like you were

shifting in some ways from a direct answer, and I want to describe

the concern. We worked for two years on the Indian Health Care

Improvement Act, worked very hard on it, Senator McCain, myself

and others on the committee, to try to put something together. We

worked for 2 years.

On September 26 last year, at the end of the 2-year period, this

showed up. It is a Department of Justice white paper. It is not

signed. It was given to the steering committee of one political caucus in the Senate, not both, just one political caucus. It wasn’t offered to the Committee on Indian Affairs, neither to the majority

nor the minority; raises all kinds of questions in six single spaced

pages. It takes the position similar to the position you have taken

today on things. The classification of Alaska Native is based on

race, and therefore will be a problem.

So this is what I don’t understand. One of the reasons I asked

you to be here is that Senator Thomas was asking you about cooperation. How does it work that at the end of a 2-year period, we

have a white paper show up at the steering committee of one political caucus in the Senate, not shared with this committee? It did

result, by the way, in several holds being put on the bill. The result

is 2 years of work on a bill that we had watered down substantially

because of objections from HHS, objections from Justice. It resulted

in us not being able to pass a bill.

So how does this white paper show up, and especially how does

it show up not to us, but to a steering committee of a political caucus in the Senate?

Mr. BECKNER. Thank you, Mr. Chairman, and thank you for giving me the opportunity to clear up the confusion about the white

paper.

It is my understanding that the Department’s staff met with

committee staff for, as you said, 2 to 3 years on this bill. The views

that were set forth in that white paper reflected the issues that

had been previously raised in those meetings. In those prior meetings, the staff was somewhat frustrated that all the discussions

were verbal, and they asked the Department to put into writing

some suggestions for language.

The white paper was intended to serve as a constructive roadmap for resolving those concerns. It was the Department’s intention to provide the white paper to the Committee staff after the

Senate had gone into recess in the fall, in order to further our discussions and use the white paper in continued meetings with the

staff.

Unfortunately, a version of the white paper was released prior to

that time and not to the committee staff.

The CHAIRMAN. Who released it?
17

Mr. BECKNER. I don’t know, your honor.

The CHAIRMAN. Who prepared it?

Mr. BECKNER. It was prepared by lawyers in the Department of

Justice, lawyers at the Torts Division, Office of Legal Counsel and

others.

The CHAIRMAN. Have you asked the question of who released it?

Mr. BECKNER. I have asked whether the Department of Justice

released it and I was told that no one in the Department of Justice

released it. And I understand that after we found out it was released prematurely, that it was provided to committee staff and

that we then also met with representatives of the American Indian

community to discuss it as well.

I do apologize for the timing. It was not our intent to have it

come out while the Senate was still in session. It was our intent

to use it to address staff concerns for written specific targeted dialog that could result in actual language. I would say that that actually happened, that based on the white paper, we had very fruitful

discussions with committee staff. We ended up resolving our liability concerns with three or four targeted suggestions, and our liability concerns were resolved by S. 4122. We did not object to that

bill.

The CHAIRMAN. It was not clear in September that we were going

to be back for a lame duck session, but it appears to me this was

designed at the end of the process to kill the bill. I can simply say

to you neither Senator McCain’s staff nor my staff, he was chairman and I was vice chairman, were privy to this, and I don’t believe either of those staffs asked you to prepare this. I don’t believe

for 1 moment that no one released it. It shows up in one caucus

here in the Senate accidentally? I don’t think so.

That is why I started out this hearing with some concern and

some frustration. It is the case that there have been efforts at

every step along the way to undermine the efforts to pass this bill.

We have a piece of legislation that we need to reauthorize. It deals

with people’s lives, health care. You are suggesting to us we can’t

deal with Alaska Natives because it is racial, for God’s sake? The

Department of the Interior recognizes Alaska Natives.

So anyway, I have gotten rid of my frustrations with you today

only to say that this can’t happen again. If you are going to cooperate with us down at Justice, you have to do that with all of us. We

want to work with you in a forthright way to get something done

here. That is the reason Senator Thomas was asking the questions.

I am just telling you the evidence at the end of last year is that

Justice put out a white paper to kill this legislation. And they did.

God bless you, but the fact is this legislation needs to be passed

and soon, and we will work with you, but at some point you can

put all of the white papers you want. If you don’t agree with us,

don’t come by in the midnight hour trying to kill the product with

white papers going to one political caucus in the Senate. That is

not going to work.

Mr. BECKNER. I hear your concerns and I understand your frustration. I can just reiterate that it was not our intent to have it

released.

The CHAIRMAN. Yes; but let me tell you something. You read

your response. When I asked you the question, you read what you
18

had prepared, and I think you have carefully considered how you

would respond to this uncomfortable question. I would much prefer

that you would not have had to read that, and instead you would

not have killed that bill last year. So let’s start over and work and

see if we can get it done this year.

Senator Thomas, I don’t know whether you have a comment on

that.

Senator THOMAS. No.

The CHAIRMAN. Senator Murkowski.

STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM

ALASKA

Senator MURKOWSKI. Thank you, Mr. Chairman. I am glad that

you jumped in front of me because I was certainly prepared to ask

many of the same questions. I think we all find it troubling that

you spend the amount of time and, Mr. Chairman, I know that you

and Senator McCain spent an inordinate amount of time working

this through in the past couple of years, along with the rest of us

on the committee.

We recognize the importance of this legislation. To have it, someone suggested, stalled out, but I think you have appropriately said

it, it was killed, and I think in a most unfortunate way.

Mr. Beckner, you have just indicated in response to Senator

Thomas that you are going to look to resolve any issues that you

have with this bill and indicate that you are going to cooperate

with this, but I think it is fair to say that it needs to be done openly, honestly, throughout the process. This is too important an issue

to the people in my State and the people in States that are represented around this table, to have legislation like this that relates

to the basic health care needs of our American Indians, Alaska Natives, and Native Hawaiians, to not have it be reauthorized.

I appreciate you, Mr. Chairman, bringing this forward today, the

opportunity to ask some of the tough questions. I apologize that I

was not able to hear the testimony this morning. I will have to go

back and read the transcript and make sure that I am fully up on

what you all have said.

Mr. Chairman, I want to thank you. You had encouraged me to

work with you on how we might be able to move forward some

models for perhaps community health aide programs. In the next

panel, we will have Steven Gate from Sitka here today to talk

about the Alaskan model. With that in mind, Dr. Grim, I would

like to ask you your assessment of the success of the Community

Health Aide Program in Alaska. You have been around for a long

time watching what we are doing up there. Can you just speak to

this program and how it might be a model for the rest of the country?

Mr. GRIM. I think it has been an outstanding success, Senator.

In fact, it has been used as a model in other parts of the world.

We have been asked to have dignitaries from other parts of the

world come visit Alaska to see how they use it. They have innovatively trained community members. I have visited with some of

those people. I don’t know how they do it, living in some of the remote communities that they do. They are basically on call 24/7 be-
19

cause the community knows where they live. It is a stressful job

for them, but they do an outstanding job.

You have also linked telemedicine very recently in innovative

ways so that those community health aide practitioners have links

to our major medical centers there in Alaska. So when they have

problems or need to send pictures or get consults, they now have

consults with some of the best specialists and sub-specialists in the

State.

It is an outstanding model and they do a great job. I would like

to publicly applaud them.

Senator MURKOWSKI. Thank you. I know that they appreciate

your support.

As you know, we have many in the community who are not State

licensed to deliver the care. Over the 40 year history of the program, to your knowledge, do we have any problems in terms of liability?

Mr. GRIM. To the best of my knowledge, I could ask our people

that deal with that and give you a more perfect response for the

record, but no, we have not had, and we have had a Federal oversight board, as you know, that certifies those individuals.

Senator MURKOWSKI. That is my understanding. We are doing

very well and have not had problems with the liability issue. It is

something that I know that Justice had expressed some concerns

about. I am not quite sure why, so it is nice to have it on the

record. If you have anything that would supplement that, I would

certainly appreciate that, but I think we can use this as one of

those models applicable throughout the rest of the country as we

attempt to deliver health care in rural and isolated places.

Mr. Chairman, I just want to note for the record that among the

Alaska Natives, my constituents up north, there is no one more important piece of legislation that this Congress could pass than the

reauthorization of this. So we look forward to working with you on

this and hopefully have the genuine commitment from all involved.

I also have an opening statement that I would like to have included as part of the record.

The CHAIRMAN. Without objection, Senator Murkowski.

[Prepared statement of Senator Murkowski appears in appendix.]

The CHAIRMAN. We talked a little about a new medical model of

convenient care centers and so on that we have been talking about

and working on.

Senator Tester had another question.

Senator TESTER. Yes, Mr. Chairman; thank you very much. I

want to take a step back because I may have made an assumption

I should not have made, that the passage of this bill is automatic,

because it is obviously not. What is the date on that white paper?

The CHAIRMAN. The date is September 26, I believe.

Senator TESTER. Of last year?

The CHAIRMAN. Yes.

Senator TESTER. Was the bill amended after that date?

The CHAIRMAN. We worked on the bill leading up to and through

the lame duck session. We made some modifications following that

date as well.

Senator TESTER. Okay. The question I had was for Mr. Beckner.

You had said, when Vice Chairman Thomas was asking you ques-
20

tions, that you had not had a chance to take a look at the bill, but

if it was similar or identical to the bill in the 109th Congress, that

you were not going to have any problems with it.

Mr. BECKNER. If it was identical to S. 4122, we had no objections

to S. 4122.

Senator TESTER. And so those few changes that were made after

September 26, 2006 took care of all your concerns in that 6-page

single spaced white paper?

Mr. BECKNER. I am sorry I interrupted you, Senator.

Senator TESTER. That is all right.

Mr. BECKNER. They resolved all our liability concerns, and we

agreed to disagree on the constitutional issues. We did not object

to the legislation.

Senator TESTER. Okay. Thank you very much.

Senator THOMAS. The Senate might be interested to know that

the bill was introduced 2 hours before the end of the session last

year, so it had gone through a lot of things.

The CHAIRMAN. Let me also make the point, to finalize the point,

the bill that was introduced at the end of the last session was not

something that I had signed up to or agreed to. What happened

was your September white paper actually forced a circumstance

where objections were raised on the floor so that the floor couldn’t

be brought forward. It forced more discussions to happen in the

last hours of the session. Changes were made to the bill that I did

not agree with and did not support.

The bill didn’t pass, in any event. My point, Mr. Beckner, is I

think it is pretty clear to me, and I have been around here a long

while, the way it works, this tubed the bill. I have invited you to

testify today, and I appreciate your being here. You have said you

want to cooperate with us. I want to cooperate with Justice and I

want to turn the page. But I don’t like what happened last year.

I don’t want it to happen again. If we disagree, that is fine.

You are in the executive branch, and you can disagree with us.

We are in the legislative branch. We are going to legislate. We will

work with you to solicit your input, solicit the input of HHS, do the

best we can to put together the best legislation we can do, and try

to move legislation. I don’t want to wait until the end of next year

to find out that we would fail again. I want to succeed and I want

to do it sooner, rather than later.

So I appreciate your pledge of cooperation. We will look forward

to working closely with you.

Mr. Agwunobi, we are going to work closely with you and Dr.

Grim as well, because we want to work on some changes in the

medical models and convenience care and other things that will

write a new bill, one that I think is more exciting, more interesting, and as Dr. Coburn said earlier, that really does change the delivery system of better health care to people who desperately need

it.

I want to thank the three of you for appearing today and for

being with us at the hearing. Thank you very much.

Mr. AGWUNOBI. Thank you.

Mr. BECKNER. Thank you, Mr. Chairman.
21

The CHAIRMAN. I would like to now call the final four witnesses.

Richard Brannan is chairman of the Northern Arapaho Business

Council at Fort Washakie, WY.

Might I ask the Indian Health Service to stay, and Justice? If

you have the time, I would love to have you stay just for a bit to

hear some of the testimony.

Okay, thank you.

Rachel Joseph is cochair of the National Steering Committee on

the Reauthorization of the Indian Health Care Improvement Act.

Edward Lazarus is a partner at Akin Gump. Steve Gage is director, Community Health Aide Program, Southeast Alaska Regional

Health Consortium in Sitka, AK

We thank you for being here. We appreciate your patience. We

will have Richard Brannan begin.

Would you wish to say a word?

Senator THOMAS. Yes; I would. I want to welcome the chairman,

Richard Brannan, from the Northern Arapaho Tribe at Fort

Washakie, WY, to testify. Chairman Brannan participates in the

National Indian Health Budget Formulation Team, the National

Tribal Leaders Diabetes Committee for the special diabetes program for Indians. I appreciate his leadership and am delighted to

have you here, sir.

I am sorry you had problems getting here. I understand you

came to Denver to Los Angeles to Washington.

Mr. BRANNAN. Yes, I did. [Laughter.]

Senator THOMAS. That is the long way around.

The CHAIRMAN. Mr. Brannan, you may proceed. Your entire

statement, in fact the statements of the panel will be made part

of the record.

Mr. BRANNAN. Thank you.

STATEMENT OF RICHARD BRANNAN, CHAIRMAN, NORTHERN

ARAPAHO BUSINESS COUNCIL

Mr. BRANNAN. Good morning, Chairman Dorgan, Vice Chairman

Thomas, members of the committee. My name is Richard Brannan.

I am the chairman of the Northern Arapaho Tribe of the Wind

River Reservation in Ethete, WY. I am serving my fourth term as

chairman of my tribe. I am a member of the National Steering

Committee for the Reauthorization of the Indian Health Care Improvement Act, the Tribal Leaders Diabetes Committee, and the

Indian Health Service Budget Formulation Team, representing the

Montana and Wyoming tribes.

I worked several years for the Wind River Service Unit, the IHS

facility on my reservation, as the Administrative Officer. Health

care has been a personal priority not only during my interim in the

IHS, but as a tribal leader. I appreciate this opportunity to address

the health issues of tribes, and would like to thank the committee

for the opportunity to testify in support of the Senate bill to reauthorize the Indian Health Care Improvement Act.

Today, I would like to divert from the usual delivery of testimony. I have faith in my colleagues and their knowledge and experience that they will impart to the committee today the priority

issues relating to and the importance of reauthorizing the Indian

Health Care Improvement Act.
22

Instead, today I would like to put a face to these priority issues

so that as we deliberate on reauthorization that we keep the faces

of American Indian and Alaska Native people in our minds and

hearts. As I begin this address, there are fundamental principles

that need to be reaffirmed regarding tribes and our sovereign status.

The overarching principle of tribal sovereignty is tribes are and

have always been sovereign nations. Tribes pre-existed the Federal

union and draw our rights from our original status as sovereigns

before Europeans arrived. The fundamental principles of tribal sovereignty are as a sovereign nation. Tribes, as evidenced through

the treaty-making Indian commerce clause of the Constitution, engage in a government-to-government relationship with the United

States.

The sovereign power of tribes include the power to determine our

form of government, determine tribal membership, regulate domestic relations among our members, prescribe rules of inheritance,

levy taxes on members and persons doing business with members

on tribal lands, control entry onto tribal lands, regulate the use

and distribution of tribal property, and administer justice among

members of our tribe.

Today, I would like to take you back approximately 143 years to

one of the most horrendous acts perpetrated on the Arapaho people, the Sand Creek Massacre. To this day, we do not really know

the level of historical trauma sustained by our tribe because of this

event, but we do know that it is there and we continue to suffer

because of it.

Colonel John Chivington, a Methodist minister, and his 800

troops marched in order to attack the campsite of Black Kettle. On

the morning of November 29, 1864, the Army attacked the village

and massacred most of its inhabitants. Chivington proclaimed before the attack, ‘‘Kill and scalp all big and little. Nits make lice.’’

Only 9 or 10 soldiers were killed, and 3 dozen of them were wounded. Between 150 and 184 Arapahos and Cheyennes were reported

dead or killed, murdered. And some were reportedly mutilated, and

most were women, children, and elderly men.

Chivington and his men later displayed scalps and other body

parts, including unborn babies that were cut from their mother’s

wombs and the private parts of women.

The Joint Committee on the Conduct of the War declared as to

Colonel Chivington, your committee can hardly find fitting terms to

describe his conduct. Wearing the uniform of the United States,

what should be the emblem of justice and humanity, holding the

important position of commander of a military district.

Therefore having the honor of the Government to that extent in

his keeping, he deliberately planned and executed a foul and dastardly massacre, which would have disgraced the vilest savage

among those who were the victims of his cruelty. Having full

knowledge of their friendly character, having himself been instrumental to some extent in placing them in their position of fancied

security, he took advantage of their inapprehension and defenseless

condition to gratify the worst passions that ever cursed the heart

of a man.
23

I am an Arapaho, and when I speak about the Sand Creek Massacre, I am amazed that we as Arapaho people have persevered.

During the Sand Creek Massacre, Arapaho women and children

were brutally murdered. The soldiers especially targeted children

that day, with the idea to exterminate them and destroy the entire

tribe.

The Sand Creek Massacre occurred in 1864 and today it is 2007.

We as tribal people continue to fend off the attack on our children.

This time, the attacker is not as visible as Colonel Chivington’s

troops, but more deadly. In 2007, we are defending our children

from succumbing to the effects of the decreasing Indian Health

Care budget, devastating health disparities, and dangerous emerging diseases, the impacts of methamphetamine abuse.

Nationwide, the disparity in health status and access to health

care for American Indians and Alaska Natives is staggering. Tribal

leadership and the Indian Health Service continues to educate Congress and the Administration and all of America on the devastating

disparity suffered by American Indians, Alaska Natives in health

status, mortality rates, and access to health care. Diseases that

continue to challenge the health of American Indians and Alaska

Natives are diabetes, alcohol substance abuse, heart disease, and

cancer.

Today, what I did is, I brought pictures of three little Arapaho

angels. I call them angels because they are in heaven now. They

couldn’t be here in person. I apologize. What I did is I had to show

them. This is what I face every day, is the death of children, and

the suffering.

This beautiful little baby whose name is Dylan Whitcomb. Dylan

is Arapaho. He was diagnosed in late 2004 and died in early 2005

of neuroblastoma. He had just turned 5 years old. He was a brave

little boy and often amazed his grandmother in his unwavering certainty that he would get better. In fact, he often comforted his family. Dylan needed treatment that was more than could be provided

by the Wind River Service Unit.

By the time resources were made available through private sector partnerships and charitable givings, Dylan had advanced stages

of the disease. He entered a children’s cancer treatment center

where one of his friends was a little girl that was diagnosed with

the same disease about the same time as Dylan. She was able to

access care earlier than Dylan and was healthy at the time of the

reporting. Cancer is devastating.

What I did is I brought a picture. Her name is Marcella Hope,

a little 22 month old baby that was killed. She died hanging in a

closet on a hanger, years of abuse because her parents were methamphetamine addicts. I have to live with this as the chairman. I

have to live with my conscience. I have to see what can I do. I come

here. I am not trying to grandstand. I am trying to get a point

across here. People are dying. Children are dying. We need to do

something. People are suffering. I live this every day.

This little boy here is also a 22-month old little Arapaho angel.

We only buried him in November. At 22 months, he was beaten to

death. I went to his funeral. It is not natural to see a little 22

month old baby in a casket. They had to have a hat on him because

his head had swelled so large. I went the night before to his grand-
24

father’s residence. I went in there and I asked him, I said, can you

please forgive me for failing you and your little grandson. And

what he responded back to me, he said, he was special. People feel

guilty. They may feel guilty, but he was special, and God called

him early.

His other grandfather is being buried today. He died from sorrow

of losing his grandbaby.

I did have written testimony, but I need to get that across to everybody in this room, that we are dealing with little children. We

are dealing with human beings that have feelings. I always try to

do that. I am not much in terms of statistics, because that doesn’t

really show the true story.

In closing, my grandmother, she lived to be 99 years old. Her

name was Cleland Thunder. And what she told me is her elders

taught her to pray for the President, the Vice President, Congress,

all of the people that work here in Washington, that they would be

blessed; that they would have a good life; and hopes that life would

be so good for them that they would look back on the Arapaho people with some pity.

We continue to practice that today. That is a continuous practice.

What I come here today for is asking for the Federal Government

just for some pity, some compassion. I thank you for giving me this

opportunity to testify. The Sand Creek Massacre is my legacy. That

is my life. I live that every day. I live that trauma. So that is why

I am talking about it, and I am trying to make the connection of

the Sand Creek Massacre of what is happening to our children

today.

Thank you, Mr. Chairman. Thank you, Committee members for

allowing me to testify. You have given me the honor to be here.

[Prepared statement of Mr. Brannan appear in appendix.]

The CHAIRMAN. Chairman Brannan, thank you very much for

being here. Thank you for your passion. We understand that it was

difficult for you to even get here, just with the arrangements and

so on. And thank you for invoking the memory of some wonderful

young members of your tribe and telling us about their lives. We

appreciate that very much.

Ms. Rachel Joseph is the cochair of the National Steering Committee on the Reauthorization of the Indian Health Care Improvement Act. Ms. Joseph, thank you for your abiding work on this

issue over a long period of time. We appreciate very much your

being here.

STATEMENT OF RACHEL A. JOSEPH, COCHAIR, NATIONAL

STEERING COMMITTEE ON THE REAUTHORIZATION OF THE

INDIAN HEALTH CARE IMPROVEMENT ACT

Ms. JOSEPH. Thank you. Good morning, Chairman Dorgan, Vice

Chairman Thomas, and members of the committee.

I am Rachel Joseph, Co-Chair of the National Steering Committee for the Reauthorization of the Indian Health Care Improvement

Act.

In 1999, the director of the Indian Health Service comprised the

National Steering Committee of Tribal Representatives, a national

organization. After extensive consultation with the tribes, we forwarded a consensus bill which reflected the best thinking of tribal
25

leaders across the Country. We continue to provide advice and

feedback to the Administration and Congress regarding reauthorization.

In 1976, when the Indian Health Care Improvement Act was enacted and signed by President Ford, with the mission to bring the

health status of the first Americans to the level of the general U.S.

population. The Indian Health Care Improvement Act was reauthorized in 1988, and again in 1992, but has not been updated in

over 14 years. Modernization is necessary for improvements to the

health care systems.

The health disparities as already articulated by the assistant secretary of Health and the chairman of the committee demonstrates

the need to provide enhancements so that we can update our

health care delivery systems, improve the quality of life, and save

the lives of Indian people.

Since 1999, we have accommodated Administration and congressional concerns by working out many compromises and by reaching

consensus on key policy issues. At the same time, the steering committee has held to the guiding principles of no regression from current law and protection of tribal interests.

After working to secure reauthorization, you can imagine how

disappointed Indian country was when the Indian Health Care Improvement Act failed to pass the Senate in the 109th Congress. The

bill, we believe, was largely derailed by the DOJ memorandum already discussed today.

The memo addressed issues that would erode sovereignty and

contained several inaccurate claims. DOJ raised constitutional

issues regarding the definition of Indian. The definition of Indian

in the reauthorization is the same definition that has been in the

law for over 30 years, and has never been challenged on constitutional grounds. This definition is consistent with definitions of Indian found in other Federal laws, such as the No Child Left Behind

Act.

To ensure no regression from current law, the steering committee

strongly recommends that the definition of Indian, definition of

urban Indian and definition of California Indian be retained.

DOJ also objected to FTCA coverage for home and communitybased services and traditional health care practices because of

standard of care issues. Currently, the IHS and tribes provide

home health care services following State Medicaid standards of

care. Traditional health care practice can be complementary to

Western medical medicine. In most cases, traditional health care

practitioners are not employees of the IHS or tribes so FTCA coverage would not apply. Also, it is our understanding, as already

testified to by the Department of Justice, that no FTCA claim has

ever been made for this kind of health care.

Over the past few months, the steering committee has worked

with congressional staff in recommending legislative changes to

any reauthorization. My written testimony highlights these issues

in great detail.

As asserted by Mr. Chairman and Senator Coburn, the status

quo is not acceptable. Thus, we support strongly the elevation of

the IHS director to the assistant secretary of Health and Human

Services. We believe that elevation is consistent with the govern-
26

ment-to-government relation and the trust responsibility to tribal

governments.

We support strongly the establishment of a bipartisan commission to study the optimal way to provide health care to Indian people. We believe that the last version of the legislation did modify

language relate-d to the study and we would recommend that we

stay with the language that was in S. 1057.

We believe strongly that tribes should provide the kind of longterm care and human community-based services that are made

available to other populations in our Country, enabling elders to receive long-term care and related services in their homes or tribal

facilities closer to family and friends.

We strongly support comprehensive behavioral programs for atrisk Indians, and the authorization would allow behavioral health

programs to reflect tribal values and emphasizes collaboration

among alcohol substance abuse and social service programs, and

mental health for all age groups, with specific programs for Indian

youth.

Chairman Dorgan, in your Senate floor statement of January 22,

you discussed the need for improving emergency access to reservation health care through expanding clinic hours and other innovations. You asserted the need for an Indian health care delivery

model to replace existing emergency rooms at hospitals with low

cost and after walk-in clinics, a model currently available in the

private sector. We appreciate your leadership in proposing delivery

systems in Indian country that are more accessible.

In spite of our consistent underfunding, our tribal programs continue to establish innovations that make care more accessible. For

instance, some tribes have established after-hour programs for

health promotion and disease prevention. My local health board is

proposing a preventive dental health program on Saturday mornings for families who are not able to access these services during

the week.

Some programs provide after-hours services by establishing tollfree numbers for patients to call in. I have a copy of our magnets

that list all the toll free numbers of our health project, to ensure

access for our service population, particularly since 10 percent of

the people that we serve are over 65 years of age, and 32 percent

of our children under five are at poverty level or below.

It lists the toll-free number for medical, dental, pharmacy and

on. I have called this number after hours, and with the answering

service asked to speak to a doctor who was able to get back to me,

and we worked through my need for care at that particular time.

While the NSC supports legislative language clarifying existing

authorities or expanding existing authorities to demonstration

projects, additional funding is needed to facilitate any new programs that are authorized.

In closing, I would like to emphasize that we believe that the

passage of this legislation would be facilitated if tribal leaders are

at the table with congressional staff and the Administration, which

is consistent with meaningful government-to-government relations

and collaboration.

Thank you to the committee for the leadership you provide in

support for the reauthorization, and the other critical issues that
27

affect Indian country. I appreciate the opportunity to testify today,

and with my steering committee colleague, Chairman Brannan.

If I may make just a brief notation, and comment on the testimony the Administration made about objections to behavioral

health programs in section 712 addressing fetal alcohol disorder

services, tribal leaders spoke strongly that we should be able to

educate expectant mothers about the harm that is done if they

should continue to use alcohol, meth or other substances. So we

feel strongly about ensuring that we have a comprehensive approach and the ability to do our jobs.

Thank you.

[Prepared statement of Ms. Joseph appears in appendix.]

The CHAIRMAN. Ms. Joseph, thank you very much. As I said,

thanks for your continuing work on these issues.

Next, we will hear from Edward Lazarus, who is a partner at

Akin, Gump, Strauss, Hauer, and Feld in Los Angeles, CA. Mr.

Lazarus, thank you for joining us.

STATEMENT OF EDWARD P. LAZARUS, PARTNER, AKIN, GUMP,

STRAUSS, HAUER, AND FELD, LLP

Mr. LAZARUS. Thank you, Chairman Dorgan and Vice Chairman

Thomas, distinguished members of the committee.

It is a particular pleasure for me to come and appear this morning. I vividly remember as a boy coming to watch my father testify

before this committee, and it was a significant reason that I ended

up going to law school, and now I am here appearing as a constitutional authority. So there is a special poignancy in that for me.

Listening to Chairman Brannan this morning has actually

caused me to revise the summary that I was going to give because

in light of that, there seemed something terribly theoretical and abstract about arguing about which standard of review ought to

apply, whether it is the Morton v. Mancari standard of rational relations, or the stricter test that applies to racial classifications.

I think one thing that is important to bear in mind is that the

Department of Justice has never suggested that the Act, regardless

of the standard of review, is unconstitutional. I think it is very

much worth bearing in mind that even if the stricter test were to

apply, that this committee and the Congress can do a great deal

to try and ensure that it would pass even the stricter test that

would be applied to a racial preference.

In my statement, I was presumptuous enough to suggest that the

act might be amended to add some additional findings to meet the

test of strict scrutiny, which talks about the need for the benefit,

the failure of race-neutral alternatives, and the impact on rights of

third parties, and the fit of the classification.

I think just listening to Chairman Brannan today and the comments that had already been made by the other witnesses, and by

the distinguished members of the committee, it seems to me that

a very, very compelling case can be made that given the conditions

of Indian health, both in the cities and on the reservations, that

this is legislation that meets all of those criteria.

That said, the question does remain, which standard of review

should apply. The main question really boils down to this one of

whether the definitions of Indians and urban Indians in the act is
28

so broad by including members of State-recognized tribes and nonmembers who are one or two degrees descended from members is

so broad that it tips this over from the political classification recognized in Morton v. Mancari into being a race-based classification.

While the question is not completely without doubt, I think the better answer is that this remains a bill that creates a political classification.

The starting point for the analysis has to be the extraordinary

power and responsibility that the Congress has in the area of Indian affairs. The extraordinary power comes from the Indian Commerce Clause, a specific grant of power in the Constitution, and the

175 years of court decisions interpreting that clause to give Congress broad plenary authority in the area of Indian affairs.

The responsibility comes from the more than 200 year history of

relations between the United States and the tribes, much of which

is very tragic and was touched upon, of course, by Chairman

Brannan, which has created a remarkable and strong duty of protection on the part of the Congress. Congress has legislated many,

many times pursuant to that duty of protection to create special

benefits for tribes. Health care has been a very, very important

component of that going back, again way back into the early part

of the 19th century.

The basic rule has been that when Congress legislates for the

benefit of tribes, that treatment need only be rationally tied, and

this is the language of the court, to Congress’s unique obligation

toward Indians. That is the language of Morton v. Mancari.

So the question is whether somehow by broadening out the coverage of this act to members of State-recognized tribes and not

merely federally recognized tribes, and by bringing within the

ambit of its benefits those Indians who are defined as urban Indians, who are non-members descended in the first or second degree

from members, or Eskimo, Aleuts, and Native Alaskans, that this

somehow has become a racial classification.

I think the answer with respect to State-recognized tribes is pretty straightforward. State-recognized tribes are, of course, political

entities as well. There is a long history of recognizing Congress’s

very substantial power to define tribal relations and to recognize

tribes for all purposes or just for some purposes. When you put

those powers together, it does seem that there is no reason to consider providing benefits to State-recognized tribes as a racial classification, as opposed to a political one.

With respect to the urban Indian definition, the truth is the case

law just doesn’t provide a definitive answer. In Morton v. Mancari,

the court spoke very generally about the unique obligation to Indians, not federally recognized tribal members only. But at the same

time, that case did arise in the context of a preference that was

limited to federally recognized tribal members.

Several cases after Morton v. Mancari, the most prominent Delaware Tribal Business Commission v. Weeks, made no distinction between Indians and tribal members only. The Rice v. Cayetano case,

which the case on which the Department of Justice relies, does

note that Morton v. Mancari is limited to a preference in favor of

members of recognized tribes, but the decision does not turn on
29

that fact. The court was making no effort to delineate exactly

where the line is between political and racial classifications.

So in the absence of any defining case law, to me I think this

question boils down to a matter of history and logic. When you look

at the history, and we know——

Chairman DORGAN. Mr. Lazarus.

Mr. LAZARUS. I am sorry.

Chairman DORGAN. Perhaps even as your father experienced

many years ago, we require discussions of the Constitution to be

limited to 5 minutes. [Laughter.]

Mr. LAZARUS. And so they should be. I will simply close by saying that Congress has the power, it seems to me, to view these

urban Indians as defined in the act as derivative of the political relationship with the tribes, and therefore bring it within the ambit

of their power.

Thank you, Mr. Chairman.

[Prepared statement of Mr. Lazarus appears in appendix.]

The CHAIRMAN. Thank you for coming all this way and testifying.

I regret that we do have limits on testimony by witnesses. I allowed Chairman Brannan to proceed longer because of the nature

of his testimony. Your testimony is very helpful to us and we hope

to engage with you as we construct this legislation.

Senator Murkowski, would you like to introduce the next witness?

Senator MURKOWSKI. Thank you, Mr. Chairman.

I would like to welcome to the committee this morning Steven

Gage. Steve is the director for Southeast Alaska Regional Health

Consortium, SEARHC, and he is also the chair of the Alaska Association of the Community Health Aide Program, a program that

has been described earlier as being around about 40 years now. He

has done a very fine job in this, and I think we will have an opportunity to again hear a little bit more about how this particular program in Alaska can be a model for throughout the Country.

Welcome, Mr. Gage.

The CHAIRMAN. You may proceed. Your entire statement is made

a part of the record.

STATEMENT OF STEVE GAGE, DIRECTOR, COMMUNITY

HEALTH AIDE PROGRAM, SOUTHEAST ALASKA REGIONAL

HEALTH CONSORTIUM

Mr. GAGE. Thank you. Good morning, Chairman Dorgan and

Vice Chairman Thomas and committee members. As you heard, my

name is Steve Gage and I am a physician assistant. I work for the

Southeast Alaska Regional Health Consortium. I am based in

Sitka, Alaska. I am the director of the Community Health Aide

Program that SEARHC operates.

SEARHC is as consortium of 18 tribes and predominantly serves

the Tlingit, Haida, and Tsimshian Indian peoples of Southeast

Alaska. I have been associated with the Community Health Aide

Program for about 17 years. If you can picture yourself in a small

town of a few hundred people, not unlike many rural areas

throughout the United States in the early 1900’s, access to medical

care in that setting is hours and days away, and travel may involve

land, water and air, and is entirely based on weather.
30

In this setting, if you become ill or injured, who are you going

to call? In the scenario that I just described, if you were in Alaska,

you would most likely be calling a community health aide. Presently, there are about 500 community health aides working in 180

communities throughout Alaska. They are employed by 27 638 tribal organizations. There were about 300,000 patient encounters in

2006.

As you heard, the Community Health Aide Program is about 40-

years old and it was developed in Alaska to deal with the tuberculosis epidemic in Alaskan villages. It has evolved into the backbone of health care delivery in nearly all rural areas of Alaska.

Community health aides are generally recruited from the communities they serve, and approximately 80 percent of them are

Alaska Natives. Being a resident of the community enables health

aides to understand the language, the customs, and the traditions

of the community, and they are less likely to leave after 1 or 2

years.

Training consists of emergency skills to at least the emergency

trauma technician level, and that is combined with four 1 month

sessions covering most aspects of basic primary medical care.

Training is based on a statewide curriculum and is done at one of

four training centers: Sitka, Nome, Bethel, and Anchorage.

The first two sessions of training are usually complete within 6

months of hire, and the entire process is usually complete within

2 years. The University of Alaska College of Rural Health recognizes this training and extends credit toward an AA degree for

health aides.

Following the four sessions, health aides have a clinical preceptorship and testing process which, when passed, qualifies them as

a community health practitioner. Continuing medical education

must be maintained and a 1 week-long clinical evaluation is repeated every 6 years. In some cases, health aides have received additional training in health care such as early prevention screening

and testing for childhood diseases.

Health aides work using a revised manual that directs their history, physical exam, and guides them to an assessment. Regardless

of their years of experience and training, the manual must be used

in all patient encounters. I have brought a copy of our new manual,

and there are copies that are available if you wish to have one.

Each community where health aides serve has medical oversight by

tribal or IHS referral physicians. The manual guides the health

aide to a general diagnosis. Treatment options are then discussed

with the referral physician.

This physician may delegate some supervision of health aides to

mid-level practitioners like physician assistants or family nurse

practitioners. The physician may also approve a limited number of

medical standing orders which enable the health aide to treat those

conditions based on previous consultations.

Apart from standing orders, all patient encounters require consultation with a higher level medical provider. In Alaska, the Federal Telehealth Program provides the mechanism for this and has

supplemented telephone counsels. Health aides usually work regular hours on a weekday schedule, and provide after-hours emergency care on a call rotation. Health aides work in all areas of
31

medicine. Preventive health care services is an area that is getting

increased attention by health aides, and one we hope will reduce

the need for acute and chronic medical care.

As an example, in part due to health aide services, Alaska’s maternal and infant health have improved recently. In 1998, a Community Health Aide Program certification board was established to

oversee the program statewide. The program is cost-effective and

well received in Alaska. The State of Alaska contributes funds for

program operations, and while tribal groups operating health aide

programs are struggling with funding, they are committed to maintain the program as one of the most important that they offer their

people.

I understand you are considering using the program as a model

to provide health care. I will tell you that it works well in Alaska.

Part of Alaska Native culture is to share what you have with others, and we would be very happy to share our program and our expertise with you.

Thank you.

[Prepared statement of Mr. Gage appears in appendix.]

The CHAIRMAN. Mr. Gage, thank you very much. You have come

a long way to provide us information, which is very, very helpful.

Alaska is, of course, unique and its challenges in delivering health

care are very unique. I am very interested. You said you were a

physician’s assistant?

Mr. GAGE. I am.

The CHAIRMAN. The opportunity to use physician assistants and

nurse practitioners to be involved in more convenient care for routine diagnosis in remote locations is something I am very interested in. I have talked with Senator Murkowski about that, as a

national model. We talked to Dr. Grim as well. So I appreciate very

much your testimony as well.

I will ask a couple of questions, but I will ask them at the end.

I will call on Vice Chairman Thomas first for any questions.

Senator THOMAS. Is that your statement in the green package

there, Mr. Gage? [Laughter.]

Mr. GAGE. It is not quite that long. [Laughter.]

Senator THOMAS. Okay.

Mr. GAGE. But it is quick reading, actually. Once you get started,

you can’t put it down. [Laughter.]

Senator THOMAS. Mr. Brannan, you have talked a lot about one

of the reasons for all the medical care and prevention programs are

important at reducing alcoholism. What kind of training and communication programs do you think would benefit your tribe?

Mr. BRANNAN. Senator Thomas, I look at alcohol as being a gateway drug, for lack of a better term, for methamphetamine addiction. In terms of the Indian Health Service, the budget is so

strained there really isn’t any funding available to do any preventive health education, any training whatsoever.

As we talked on our reservation, it is about 2.2 million or 2.3

million acres. In some instances, we have six police officers, sometimes maybe one police officer patrolling the whole reservation.

They have approached the council a number of times very frustrated because all they do is arrest people. They said if they had

enough resources, they could go into the schools, talk with the
32

young children, similar to what the DARE Program was before.

That was very beneficial.

But the critical thing here is in terms of our children, at least

50 percent of the Arapaho Tribe is 21 years or younger. What we

are attempting to do is build self esteem, trying to let them learn

their identity as Arapaho children.

Senator THOMAS. Some of the health care programs would be

supported by doing things outside of the health care expense.

Mr. BRANNAN. Yes.

Senator THOMAS. Okay.

Ms. Joseph, there have been concerns expressed about expanding

the joint venture programs, how successful have these programs

been, and how do they work under the existing program.

Ms. JOSEPH. Senator, what I understand from the tribes that

have been involved in joint venture programs that they have been

very successful. Unfortunately joint venture in the small ambulatory care program have not received appropriations consistently

over the years. But the couple of years in the last few years, there

has been money. It allows tribes to move forward and construct a

facility. The Indian Health Service provides the staffing for that facility.

Senator THOMAS. DOJ has been concerned that the standards

don’t apply, that the tribal facilities are not subject to the standards. Is that a concern of yours?

Ms. JOSEPH. Not that I am aware of. When we construct facilities, and we are going to receive Indian Health Service funding for

staffing, we have to meet State standards, or they have to meet

some standard.

Senator THOMAS. Do you use lay persons or relatives to provide

public health care?

Ms. JOSEPH. Not in our project.

Senator THOMAS. Okay. [Laughter.]

All right, very good.

Mr. Lazarus, you cited the Morton case, the unique obligation toward Indians. Can you explain what that means, unique obligation

toward Indians, very briefly?

Mr. LAZARUS. Yes, Senator; I think the unique obligation toward

Indians is something that has developed through the Cogma case

called the course of dealings. You have the Indian Commerce

Clause, which gives Congress the authority to deal with the Indian

tribes and the course of dealings have created this duty of protection.

Senator THOMAS. What is the problem?

Mr. LAZARUS. Well, in many circumstances, the Indian nations

have become dependent upon the United States for their health

and welfare, and Congress has the authority to do something about

that.

Senator THOMAS. I don’t think that answers the question.

Mr. LAZARUS. I am sorry if I misunderstood you, Senator.

The CHAIRMAN. Is there a trust responsibility here?

Mr. LAZARUS. Of course. The duty of protection is——

Senator THOMAS. Without regard to tribal membership, though.

Isn’t that the issue?
33

Mr. LAZARUS. The question is whether it is limited to tribal

members, and I think in my view, the best reading of Morton v.

Mancari is that while that case involved a preference for tribal

members, the general rule stated in Mancari is not limited to that.

If you look at the Delaware Business Committee case that I referenced, that is a case in which Congress distributed claims money

to both members and non-members, and so it is not limited just to

members.

Senator THOMAS. Got you.

Mr. Gage, you mentioned your August, 2006 attrition survey, and

20 percent of your medical attrition rate among medical providers.

What could be done, in your opinion, to encourage reducing that attrition rate?

Mr. GAGE. Could you say the question again?

Senator THOMAS. You indicated a current attrition rate of 20 percent in your medical and nursing professionals in Alaska.

Mr. GAGE. About 80 percent of our community health aides are

Native Alaskans. We have some turnover in that, and I think one

of the factors that might impact the attrition rate would be if we

could pay better salaries, if we could staff the clinics with an additional person. In some cases, it is the constant drain of being on

call, and the workload that burns people out.

So funding would be a key component in that.

Senator THOMAS. Okay. Thank you.

The CHAIRMAN. Senator Murkowski.

Senator MURKOWSKI. Thank you, Mr. Chairman.

Let me just followup with that, Mr. Gage, because I did want to

ask about the funding aspect of it. We recognize that in these small

communities in the villages, as remote as they are, yes, you may

be working a regular work week, but if you are on call and you

know everybody in town, even if you are not on call you are going

to be working. It is very intense in that way.

Senator Stevens and I have been working to increase the IHS

funding to help with the CHAP’s program. What is the funding gap

that we have right now, would you say?

Mr. GAGE. The program overall costs about $55 million, as best

as I can understand it. Presently, the tribes are contributing a gap

between what we get in IHS funding and Medicaid. There are

State contributions to this program of about $17 million that they

basically take from other sources and supplement this program just

because they feel it is so important. That is money that is taken

away from other services, but it is probably money that is well

spent.

We are asking for an additional recurring funding to do things

like maintain this manual. This re-edit in 2006 was largely done

with volunteers and just kind of pieced together. We were very fortunate that a lot of people took such an interest in this that they

made it part of their job, and the corporations released people from

other activities to work on this.

We are not going to be able to do that again and expect that kind

of support. So we need funding for that.

Senator MURKOWSKI. Let me ask you, you said you have been

with SEARHC for 17 years. If we didn’t have the Community

Health Aide Program in the State, where would we be in terms of
34

our ability to provide for the health care need for Alaska Natives,

in your opinion?

Mr. GAGE. Boy, Senator, I wouldn’t even want to picture that.

We just wouldn’t have health care in a lot of communities. There

might be somebody with some EMT training, or able to provide

some basic first aid, but it would require everyone traveling, if they

could afford it and if the weather permitted, or simply enduring

consequences of disease. We have diabetes. We have chronic diseases. We have children. All of those things would be impacted.

Our health care would go way down. I couldn’t imagine it without

the community health aides.

Senator MURKOWSKI. We don’t want to go backward.

I asked the question of Dr. Grim about any liability issues that

he was aware of as a consequence of the fact that you don’t have

some that are State licensed. Are you aware of any liability issues,

at least within your experience down in SEARHC?

Mr. GAGE. No; I am not. I have worked in this capacity for about

17 years, and I am not aware of any that have come from our preparation.

Senator MURKOWSKI. Mr. Chairman, I just might want to add for

the record, we had an opportunity last week up in the State to hold

a field hearing for the HELP Committee on the shortage of medical

providers in the State of Alaska, just overall, not necessarily within

IHS. But our reality is we have the lowest population to physician

ratio in the Nation. It is getting worse. We don’t have providers,

period. So if we didn’t have this Community Health Aide Program

in our villages, as Mr. Gage has mentioned, we just wouldn’t have

the ability to provide for health care.

So again, I thank you for the opportunity to have Mr. Gage here

today, and I look forward to working with you on some innovative

ideas that we can use across the Country.

Thank you.

The CHAIRMAN. Senator Murkowski, thank you very much.

I have been doing some listening sessions around the Country

with Indian tribes and members of tribes, just to listen and talk.

My impression is that methamphetamine, substance abuse, mental

health services, so many areas are in desperate need of resources

and restructuring in order to properly deliver health care services

to those for whom we have a trust responsibility.

We have had people come who say, tribal chairs who say we understand in our tribe, do not get sick after June 1, because there

is no contract health care money available. That is what happened

to the woman that was hauled into a hospital having a heart attack, with a piece of paper taped to her thigh that says, ‘‘If you

admit her, you are on your own because there is no contract health

services available.’’

Because they didn’t consider it life or limb, whoever it was that

put her in the ambulance.

It is pretty unbelievable. I had a tribal Chairman testify that in

their tribe they ran out of contract health care money in January.

Think of that, in January, 3 months after the year begins. And that

means that the only way you get help is if your life is at stake or

you at stake of losing a limb. Otherwise, I am sorry.
35

We had people sit at this table who I talked earlier about a

woman with a very serious torn ligament in her knee, is told, wrap

it in cabbage leaves for four days. A rancher, an Indian rancher

has a torn ligament in his shoulder, something that most Americans would go to a doctor for and get fixed, and 4 years, 4 years

before he was finally referred to get help, because of the lack of

contract health care funds. The only way he got help was a doctor

finally said, ‘‘What can a one-armed rancher do?’’ And they finally

put him on a priority list to get help for something most Americans

would expect to get resolved in a few months. So we just have real

challenges here.

Chairman Brannan, you know, your discussion today with the

photographs is heartbreaking. It reminded me of one of the things

that got me really passionately involved in this issue. It was a little

girl I have spoken of previously named Tamara. She was put in a

foster home by a social worker who was handling 150 cases. Well,

it turns out the foster home for this 3-year old girl was not safe.

A drunken party on a Saturday night, and little Tamara had her

hair pulled out by its roots, her arm broken, her nose broken. She

will live with those scars forever.

I met with her and her grandfather some months later. It was

just heartbreaking to know what happened to this young girl, because one social worker had to handle 150 cases. She didn’t go

check out where she was going to put the 3-year old kid.

We have so many unbelievable problems that really need resources. It is not all about money. It is about restructuring, commitment to do the right thing. This is not about somebody asking

us. This is about our trust responsibilities. We have trust responsibilities, and our requirement is to meet them.

I am determined in this committee, working with my colleagues,

to pass a reauthorization of the Indian Health Care Improvement

Act that updates, revitalizes this piece of legislation, and gives us

a chance to do something different. We will build on the successes,

Mr. Gage. I understand the testimony about what works, but I also

understand the testimony about what is left and what is not being

done.

So I think I will defer questions and just say, Chairman

Brannan, I understand your passion. I really appreciate your getting here. I didn’t realize that you left Denver and had to fly to Los

Angeles to get to Washington, DC, but that happens with airlines,

as you know.

Ms. Joseph, you have worked a long while on this. We appreciate

it.

Mr. Lazarus, the committee would like to call on you and work

with you. I don’t understand why the Department of Justice seems

to go out of its way to interpret problems here, but they seem to.

I want to cooperate with the Department of Justice, and I want

them to cooperate with us.

I do want to make a comment. At the end of the day in the last

Congress, I said it was fine to go ahead and put the skeleton of the

bill that was left, and I said that was fine. I put a statement in

the record that explained the problems with it and why I felt it fell

far short. But I don’t like what happened at the end of the last ses-
36

sion because it didn’t meet our needs and what we were trying to

do.

Mr. Gage, you have traveled perhaps more miles than anyone to

be here and to tell us the stories. Senator Murkowski continues to

tell us that story. Unless you live in Alaska, you probably can’t understand what problems distance causes for virtually the delivery

of all services, but we appreciate your being here as well.

So thank you very much for testifying.

This committee is adjourned.

[Whereupon, at 11:29 a.m. the committee was adjourned, to reconvene at the call of the Chair.]
(37)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF JOHN AGWUNOBI, ASSISTANT SECRETARY FOR HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES

Mr. Chairmen and members of the committee: My name is John Agwunobi and

I am the assistant secretary for Health for the Department of Health and Human

Services [HHS]. As the assistant secretary, I serve as the Secretary’s primary adviser on matters involving the Nation’s public health. I also oversee the U.S. Public

Health Service and its Commissioned Corps for the Secretary.

This landmark legislation forms the backbone of the system through which Federal health programs serve American Indians/Alaska Natives and encourages participation of eligible American Indians/Alaska Natives in these and other programs.

The IHS has the responsibility for the delivery of health services to more than

1.8 million federally recognized American Indians/Alaska Natives through a system

of IHS, tribal, and urban [FT/U] health programs governed by judicial decisions and

statutes. The mission of the agency is to raise the physical, mental, social, and spiritual health of American Indian/Alaska Natives to the highest level, in partnership

with the population we serve. The agency goal is to assure that comprehensive, culturally acceptable personal and public health services are available and accessible

to the service population. Our duty is to uphold the Federal Government’s responsibility to promote healthy American Indian and Alaska Native people, communities, and cultures and to honor and protect the inherent sovereign rights of tribes.

Two major statutes are at the core of the Federal Government’s responsibility for

meeting the health needs of American Indians/Alaska Natives: The Snyder Act of

1921, Public Law 67–85, and the Indian Health Care Improvement Act [IHCIA],

Public Law 94–437, as amended. The Snyder Act authorized regular appropriations

for ‘‘the relief of distress and conservation of health’’ of American Indians/Alaska

Natives. The IHCIA was enacted ‘‘to implement the Federal responsibility for the

care and education of the Indian people by improving the services and facilities of

Federal Indian health programs and encouraging maximum participation of Indians

in such programs.’’ Like the Snyder Act, the IHCIA provides the authority for the

Federal Government programs that deliver health services to Indian people, but it

also provides additional guidance in several areas. The IHC1A contains specific language addressing the recruitment and retention of health professionals serving Indian communities; the provision of health services; the construction, replacement,

and repair of health care facilities; access to health services; and, the provision of

health services for urban Indian people.

Since enactment of the IHCIA in 1976, Congress has substantially expanded the

statutory authority for programs and activities in order to keep pace with changes

in health care services and administration. Federal funding for the IHCIA has contributed billions of dollars to improve the health status of American Indians/Alaska

Natives. And, much progress has been made particularly in the areas of infant and

maternal mortality.

The Department under this Administration’s leadership reactivated the Intra-departmental Council on Native American Affairs [ICNAA] to provide for a consistent
38

HHS policy when working with the more than 560 federally recognized tribes. This

Council’s vice chairperson is the IHS Director, giving him a highly visible role within the Department on Indian policy.

In January 2005 the Department completed work ushering through a revised

HHS tribal consultation policy and involving tribal leaders in the process. This policy further emphasizes the unique government-to-government relationship between

Indian tribes and the Federal Government and assists in improving services to the

Indian community through better communications. Consultation may take place at

many different levels. To ensure the active participation of tribes in the development of the Department’s budget request, an HHS-wide budget consultation session

is held annually. This meeting provides tribes with an opportunity to meet directly

with leadership from all Department agencies and identify their priorities for upcoming program requests. For fiscal year 2008, tribes identified population growth

and increases in the cost of providing health care as their top budget priorities and

IHS’s fiscal year 2008 budget request included an increase of $88 million for these

items.

Through the Centers for Medicare & Medicaid Services [CMS], a Technical Tribal

Advisory Group was established which provides tribes with a vehicle for communicating concerns and comments to CMS on Medicare, Medicaid and SCHIP policies

impacting their members. And, the IHS has been vigilant about improving outcomes

for Indian children and families with diabetes by increasing education and physical

activity programs aimed at preventing and addressing the needs of those susceptible

to, or struggling with, this potentially disabling disease. In addition, a tribal leaders

diabetes committee continues to meet several times a year at the direction of the

IHS Director to review information on the progress of the Special Diabetes Program

for Indians activities and to provide general recommendations to IHS.

It is clear the Department has not been a passive observer of the health needs

of eligible American Indians/Alaska Natives. Yet, we recognize that health disparities among this population do exist and are among some of the highest in the Nation for certain diseases [for example; alcoholism, cardiovascular disease, diabetes,

and injuries], and that improvements in access to IHS and other Federal and private sector programs will result in improved health status for Indian people.

The IHCIA was enacted to provide primary and preventive services in recognition

of the Federal Government’s unique relationship with members of federally recognized tribes. Members of federally recognized tribes and their descendants are also

eligible for other Federal health programs [such as Medicare, Medicaid, and SCHIP]

on the same basis as other Americans, and many also receive health care through

employer-sponsored or other health care coverage.

It is within the context of current law and programs that we turn our attention

to reauthorization of the ‘‘Indian Health Care Improvement Act.’’

We are here today to discuss reauthorization of the IHCIA, and its impact on programs and services provided for in current law. In December 2006, the Department

submitted to this committee comments on proposed legislation that the 109th Congress was considering. These comments are the basis for our testimony today, and

any changes introduced by the bill under review in the 110th Congress will be considered once we have had an opportunity to review newly introduced legislation. Improving access to health care for all eligible American Indians and Alaska Natives

is a priority for all those involved in the administration of the IHS program. We

have worked closely with this committee in the past and we have made progress

in moving toward a program supportive of existing authority while maintaining the

Secretary’s flexibility to effectively manage the HIS program. However, in the last

bill, S. 1057, there continued to be provisions which could negatively impact our

ability to provide needed access to services. Such provisions established program

mandates and burdensome requirements that could, or would, divert resources from

important services. To the extent that those provisions are included in the new legislation, we hope to work with you to continue to address these concerns.

The Department is supportive of reauthorization of the IHCIA and supports provisions that maintain or increase the Secretary’s flexibility to work with tribes, and

to increase the availability of health care. Committee leadership previously responded to some concerns raised about certain provisions and some of the changes

went a long way toward improving the Secretary’s ability to effectively manage the

program within current budgetary resources.

I would like to note for you today our particular interest in provisions previously

reported out of this committee.

We have a number of general objections to previous language, including, expanded

requirements for negotiated rulemaking and consultation; new requirements using

‘‘shall’’ instead of ‘‘may’’; use of the term ‘‘funding’’ in place of ‘‘grant’’; expansion

of authorities for Urban Indian Organizations; new permissive authorities; provi-
39

sions governing traditional health care practices; new reporting requirements; establishment of the Bipartisan Commission on Indian Health Care; and new provisions

that contemplate the Secretary exercising authority through the service, tribes and

tribal organizations which is not tied to agreements entered into under the Indian

Self-Determination and Education Assistance Act [ISDEAA]. In addition, we noted

concerns in previous language about modifying current law with respect to Medicaid

and the State Children’s Health Insurance Program [SCHIP] and, in some cases, we

believe maintaining the current structure of Medicaid and the State Children’s

Health Insurance Program [SCHIP] preserves access, delivery, efficiency, and quality of services to American Indians.

We also have some more specific comments on proposals we have previously reviewed for comment.

In the area of behavioral health, proposed title VII provisions provided for the

needs of Indian women and youth and expands behavioral health services to include

a much needed child sexual abuse and prevention treatment program. The Department supports this effort, but opposes language in sections 704, 706, 711 (b) and

712 that requires the establishment or expansion of specific additional services. The

Department should be given the flexibility to provide for all Behavioral Health Programs in a manner that supports the local control and priorities of tribes, and to

address their specific needs within IHS overall budgetary levels.

The last version of S. 1057 that we reviewed contained various new requirements

for reporting to Congress, including requirements for specific information to be included within the President’s Budget and a new annual report to Congress by the

Centers for Medicare & Medicaid Services and the IHS on Indians served by Social

Security Act health benefit programs. The IHS, CMS, and HHS will work with Congress to provide the most complete and relevant information on IHS programs, activities, and performance and other Indian health matters. However, we recommend

striking language that requires additional specificity about what should be included

in the President’s budget request and new requirements for annual reports.

Sanitation facilities construction is conducted in 38 States with federally recognized tribes who take ownership of the facilities to operate and maintain them once

completed. IHS and tribes operate 49 hospitals, 247 health centers, 5 school health

centers, over 2000 units of staff housing, and 309 health stations, satellite clinics,

and Alaska village clinics supporting the delivery of health care to Indian people.

One provision in last year’s bill, section 301(d) (1), required Government Accountability Office [GAO] to complete a report, after consultation with tribes, on the

needs for health care facilities construction, including renovation and expansion

needs. However, efforts are currently underway to develop a complete description

of need similar to what would have been required by the bill. The IHS plan is to

base our future facilities construction priority system methodology application on a

more complete listing of tribal and Federal facilities needs for delivery of health care

services funded through the IHS. We will continue to explore with the tribes less

resource intensive means for acquiring and updating the information that would be

required in these reports.

We recommend the deletion of the reference to the Government Accountability Office undertaking the report because it would be redundant of and a setback for

IHS’s current efforts to develop an improved facilities construction methodology.

Retroactive funding of Joint Venture Construction Projects In last year’s bill, section 311 (a)(1) would permit a tribe that has ‘‘begun or substantially completed’’ the

process of acquisition of a facility to participate in the Joint Venture Program, regardless of government involvement or lack thereof in the facility acquisition. A

Joint Venture Program agreement implies that all parties have participated in the

development of a plan and have arrived at some kind of consensus regarding the

actions to be taken. By permitting a tribe that has ‘‘begun or substantially completed’’ the process of acquisition or construction, the proposed provisions could force

IHS to commit the government to support already completed actions that have not

included the government in the review and approval process. We are concerned that

this language could put the government in the position of accepting space that is

inefficient or ineffective to operate. We, therefore, would oppose such a provision.

Another section 302(h) (4) would provide ambiguous definitions of the sanitation

deficiencies used to identify and prioritize water and sewer projects in Indian country. As previously proposed ‘‘deficiency level III’’ could be interpreted to mean all

methods of service delivery [including methods where water and sewer service is

provided by hauling rather than through piping systems directly into the home] are

adequate to meet the level III requirements and only the operating condition, such

as frequent service interruptions, makes that facility deficient. This description assumes that water haul delivery systems and piped systems provide a similar level

of service. We believe it is important to distinguish between the two.
40

In addition, the definition for deficiency level V and deficiency level IV, though

phrased differently, have essentially the same meaning. Level IV should refer to an

individual home or community lacking either water or wastewater facilities, whereas, level V should refer to an individual home or community lacking both water and

wastewater facilities.

We recommend retaining current law to distinguish the various levels of deficiencies which determine the allocation of existing resources.

Yet another section 305(b) (1) would amend current law to set two minimum

thresholds for the Small Ambulatory Program—one for number of patient visits and

another for the number of eligible Indians. In order to be eligible for the Small Ambulatory Program under the previously proposed criteria, a facility must provide at

least 150 patient visits annually in a service area with no fewer than 1,500 eligible

Indians. Aside from the fact that these are both minimum thresholds and so somewhat contradictory, the proposed provisions would make implementation difficult.

First, the IHS cannot validate patient visits unless the applicant participates in the

Resource Patient Management System [RPMS]. Since some tribes do not participate

in the RPMS, it is difficult to ensure a fair evaluation of all applicants. Second, the

term ‘‘eligible Indians’’ refers to the census population figures, which cannot be verified, since they are based on the individual’s statement regarding ethnicity.

In addition, we are concerned about the requirements for negotiated rulemaking

and increased requirements for consultation in the bill because of the high cost and

staff time associated with this approach. We are committed to our on-going consultation with tribes under current executive orders, as well as using the authority

of chapter V of title 5, U.S.C. [commonly known as the Administrative Procedures

Act] to promulgate regulations where necessary to carryout IHCIA.

The comments expressed today in this testimony do not represent a comprehensive list of our current concerns. And, we will be reviewing legislation introduced

in this Congress for any provisions that might be addressed in the future.

I reiterate our commitment to working with you to reauthorize the Indian Health

Care Improvement Act, and the strengthening of Indian health care programs. And

we will continue to work with the committee, other committees of Congress, and

representatives of Indian country to develop a bill that all stakeholders in these important programs can support. Again, I appreciate the opportunity to appear before

you today to discuss reauthorization of the ‘‘Indian Health Care Improvement Act’’

and I will answer any questions that you may have at this time. Thank you.

PREPARED STATEMENT OF C. FREDERICK BECKNER III, DEPUTY ASSISTANT ATTORNEY

GENERAL, CIVIL DIVISION DEPARTMENT OF JUSTICE

Mr. Chairman, members of the committee, my name is C. Frederick Beckner III.

I am a deputy assistant attorney general for the Civil Division of the Department

of Justice. Thank you very much for the opportunity to share the views of the Department of Justice on the reauthorization of the Indian Health Care Improvement

Act. As of today, the Department of Justice has not had the opportunity to fully review the most current version of the proposed legislation, and we are not, therefore,

in a position to provide specific comments on this legislation.

That said, the Department of Justice strongly supports the laudable objectives of

improving health care for American Indians and Alaska Natives, and the Department looks forward to working with the committee to achieve these goals. The Department worked extensively with this committee and met with representatives of

the American Indian community on a prior version of this legislation. We expect

that this cooperative relationship will continue as the Department reviews the current legislation.

In commenting on the prior legislation, the Department identified targeted concerns that could be—and for the most part were—addressed with relatively modest

changes to the legislation that did not detract from the overall goal of improving

health care for American Indians and Alaska Natives. Indeed, in the Department’s

view, the changes benefited both the American Indian community specifically and

taxpayers generally.

For example, in an earlier version of proposed legislation, the Department of

Health and Human Services and Indian tribes could enter into self-determination

contracts that cover tribal ‘‘traditional health care practices.’’ Such practices are

unique to American Indian tribes and cannot be evaluated by established standards

of medical care recognized by the state. However, to the extent that these traditional health care practices were being provided by an Indian tribe under a self-determination contract, a party injured by such a practice could potentially sue the

United States under the Federal Tort Claims Act [known as the ‘‘FTCA’’] and expose
41

taxpayers to unwarranted liability. It is a basic tenet of the FTCA that the United

States is liable in tort only ‘‘under circumstances where the United States, if a private person, would be liable to claimant in accordance with the law of the place

where the act or omission occurred.’’ Case law has defined ‘‘the law of the place’’

to mean State law, not Federal law, not tribal law.

The Department was thus concerned that the bill would require the Department

to litigate tort claims with no meaningful way to defend the cases. In particular,

the Department was concerned that it would not be able to defend such suits because the courts might conclude that tribal health practitioners were providing

‘‘medical’’ services that, by definition, do not comply with the standards of the relevant State’s medical community. Consequently, we met with the American Indian

community and worked extensively with the committee late last year to add language that would have clarified that the United States, and ultimately the taxpayers, would not be liable for malpractice claims under the FTCA arising out of

the provision of traditional health care practices. This language would not have impacted tort suits against the United States for any other service provided under selfdetermination contracts.

The Department also expressed its concern regarding a provision that would have

extended FTCA coverage to persons who are providing home-based or communitybased services. Again, the Department stresses that it has no objection to the act’s

goal of increasing the availability of these services. However, these services are

sometimes provided by relatives and, in many instances, there are no established

standards for such layperson care or for the environment in which they are provided. Thus, the United States should not have to defend against, nor should the

taxpayers be required to pay for, negligent or wrongful conduct by such individuals

performing home-based or community-based services that are not subject to any

standards of care. To address these concerns, the Department worked with committee staff on language that would have clarified that the home-based or communitybased services that can be provided under self-determination contracts are those for

which the Secretary of the Department of Health and Human Services had developed meaningful standards of care.

The Department expressed concerns in previous versions of the bill regarding the

possibility of unlicensed individuals providing mental health treatment to Indians

and Alaska Natives. In the previous version of the bill, the Department worked with

the committee to add language that would have ensured the licensing requirement

for providing mental health services, and we believe the change was in the interest

of both the United States and the Indian community.

Finally, the Department noted its concern that the previously proposed legislation

may raise a significant constitutional issue. We had previously attempted to work

with the committee to address this concern, but unfortunately, resolution was not

attained. Most of the programs authorized by current law or that would have been

authorized by the previously proposed legislation tied the provision of benefits to

membership in a federally recognized Indian tribe, and courts would therefore likely

uphold them as constitutional. The Supreme Court has held that classifications

based on membership in a federally recognized tribe are ‘‘political rather than racial,’’ and therefore will be upheld as long as there is a rational basis for them. Morton v. Mancari, 417 U.S. 535, 555 [1974]. Congress may have limited authority in

Indian affairs to provide benefits that extend beyond members of federally recognized tribes to individuals such as spouses and dependent children of tribal members [particularly in circumstances where such children are not yet eligible for tribal

membership], who are recognized by the tribal entity as having a clear and close

relationship with the tribal entity. To regulate beyond such confines, however, presents a risk that the statute may be subject to strict scrutiny. To the extent that

programs benefiting ‘‘Urban Indians’’ under current law or in the prior version of

the bill could be viewed as authorizing the award of grants and other government

benefits on the basis of racial or ethnic criteria, rather than tribal affiliation, these

programs would be subject to strict scrutiny under the requirement of equal protection of the laws, as set out in Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

235 [1995] and other cases. For example, the statute and the previous reauthorization bill broadly define ‘‘Urban Indian’’ to include individuals who are not necessarily affiliated with a federally recognized Indian tribe, such as descendants in

the first or second degree of a tribal member, members of state recognized tribes,

and any individual who is ‘‘an Eskimo, Aleut, or other Alaskan Native.’’ Under the

Supreme Court’s decisions, there is a substantial likelihood that legislation providing special benefits to individuals of Indian or Alaska Native descent based on something other than membership or equivalent affiliation with a federally recognized

tribe would be regarded by the courts as a racial classification subject to strict constitutional scrutiny, rather than as a political classification subject to rational basis
42

review. This distinction is important, because if the legislation awards government

benefits on grounds that trigger strict scrutiny, courts may uphold the legislation

as constitutional only upon a showing that its use of race-based criteria to award

the subject benefits is ‘‘narrowly tailored’’ to serve a ‘‘compelling’’ governmental interest.

In closing, the Department believes that any proposed legislation regarding Indian health care is important and significant, and we are grateful for the opportunity to share our views with the Committee. As we have in the past, we look forward to working with the Committee on this important piece of legislation.

PREPARED STATEMENT HON. TOM A. COBURN, M.D., U.S. SENATOR FROM OKLAHOMA

Chairman Dorgan, Vice Chairman Thomas, I thank you for conducting this hearing today.

There is no more important issue before this committee than that of health care

for tribal citizens. Reauthorization of the Indian Health Care Improvement Act is

long overdue, and it is incumbent upon this Congress to finish this critical work.

As many of you know, I opposed the most recent version of this legislation introduced in the 109th Congress. I did so reluctantly, but with a firm conviction that

business as usual is no longer acceptable. As Members of Congress, as tribal leaders, and citizens of this country—everyone in this room today—we can longer tell

tribal citizens that the current system of health care delivery in Indian country is

tolerable. A system that turns away those most in need, and that rewards bureaucracies and punishes innovation, cannot be allowed to persist. I will oppose any plan

that advances more of the same.

To those who say that a failure to reauthorize the Indian Health Care Improvement Act is a violation of our trust obligations, I agree. I would argue, however, that

simply reauthorizing the same old system with minor modification is an ever greater violation of that commitment.

I have met with dozens of tribal leaders over the past 2 years, and not one has

expressed enthusiasm for the current structure. Instead, I hear a constant and consistent theme of frustration, anger, and resolve that we must do better, that we

must unlock the potential of tribes to design their own health care systems that recognize the unique needs of the community. I desire a system that maintains the

flexibility of tribes to seek outside investment, and that rewards innovative health

practices, instead of punishing those whose try to make the lives of their citizens

better.

The myriad of problems facing health care in Indian country, are many of the

same issues confronting health care delivery throughout rural America. They are

compounded, however, by a system that refuses to recognize its own role in holding

back health care delivery for tribal citizens.

In designing health care reform, we know that markets work when we allow them

to: They lower the price of all goods and services and they attract much needed outside investment. Many tribes in my state are at the forefront of new and innovative

health care delivery systems, and they are poised to become a model for delivery

throughout the system. We must ensure, however, that their efforts aren’t discouraged or stopped altogether by the current system. Furthermore, there is no good

reason that forward thinking tribal governments should be prevented from developing market driven health care centers of excellence that will attract researchers,

physicians and patients for cutting edge, life-saving treatments.

I also believe that individual patients tend to receive better, more effective care

when they are empowered to make their own health care decisions. In future legislation, we must explore ways to accomplish this objective, and give tribal citizens

a reason to invest in their own health. Long lines, bureaucratic headaches and rationed, substandard care completely disallow this sort of investment.

I am also hopeful the committee will consider a demonstration project that will

allow tribal citizens to receive health care at any Medicare approved facility. While

this will not provide the panacea we are all hoping for, in more developed regions,

it will inject competition into a sector that desperately needs it.

While we may encounter differences on the specific steps, there can no be no

doubt that we all agree on the urgent need to deliver higher quality health care in

Indian country. To that end, I look forward to working with my colleagues in bringing about a system that upholds our commitments and best serves all tribal citizens.

Chairman Dorgan, Vice Chairman Thomas, thank you again for holding this important hearing.
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PREPARED STATEMENT OF TERRY L. HUNTER, CHIEF EXECUTIVE OFFICER OKLAHOMA

CITY INDIAN CLINIC

The Reauthorization of the Indian Health Care Improvement Act March 22, 2007

The reauthorization of the Indian Health Care Improvement Act [IHCIA] is vital to

the health care of all American Indians. The law first enacted in 1976 and reauthorized in 1988, and 1992 must be reauthorized to meet today’s health care standards

enjoyed by most Americans. The original bill established 34 urban Indian clinics and

with the passage of the Indian Self-Determination Education and Assistance Act

tribes began to operate their own health care delivery systems. Due to the emergence of these two critical health care delivery systems the Indian Health Care Improvement Act must be reauthorized to address today’s health care delivery issues.

As one of the original 34 urban Indian clinics funded by the Indian Health care Improvement Act, the Oklahoma City Indian Clinic offers its testimony as an example

of how the Clinic is not duplicating service, and how the Oklahoma City Indian

Clinic patients could not be absorbed by the county, city or community clinics system.

Prior to the 1950’s, most American Indians resided on reservations, in nearby

rural towns, or in tribal jurisdictional areas. In the era of the 1950’s and 1960’s,

the Federal Government passed legislation to terminate its legal obligations to Indian tribes, resulting in policies and programs to assimilate Indian people into the

mainstream of American society. This philosophy produced the Bureau of Indian Affairs [BIA] Relocation/Employment Assistance Programs which enticed Indian families living on impoverished Indian Reservations to ‘‘relocate’’ to various urbanized

areas across the country. BIA relocation offered job training and placement, and was

presented as a way to escape rampant poverty on the reservation.

In 1976, the American Indian Policy Review Commission, established by the Congress estimated that as many as 160,000 American Indians and Alaska Natives

were relocated to urban centers. While many Indian families did well in the cities,

thousands found themselves without basic services, especially health care. As identified by the 2000 census, 66 percent of all American Indians identified reside off-reservation.

We believe that for a true understanding of the health care status of American

Indians living in urban areas, it is essential to realize that the Synder Act of 1921,

which mandated federally funded Indian health care programs, did not require tribal members to live on reservation lands in order to access health care services. Nor

did it stipulate a responsibility to provide health care off-reservation. Thus, any

American Indian that did not live on tribal land were compelled to return to their

rural communities to access health care guaranteed to them by their status as members of federally recognized tribes. A return that often was made difficult due to economic deprivation-based barriers to transportation options.

In order to address the expanding problem of lack of access to basic health care,

a number of urban communities established volunteer Indian centers and free

health clinics. hi the late 1960’s, urban Indian community leaders advocated at the

local, State and Federal levels for culturally appropriate health programs that addressed the unique social, cultural and health needs of American Indians residing

in urban settings. These community-based grassroots efforts resulted in programs

that targeted health and outreach services to the Indian community. Programs that

were developed at that time were in many cases staffed by volunteers, offering limited primary care and maintaining programs in storefront settings with comparatively minuscule budgets. These remained small local efforts, and until 1976 urban

Indians continued to be largely neglected by the Federal health system.

In response to the efforts of the urban Indian community leaders in the 1960’s,

Congress appropriated funds in 1966, through IHS for a pilot urban Indian clinic

in Rapid City. In 1973, Congress appropriated funds to study unmet urban Indian

health needs in Minneapolis. The findings of this study documented cultural, economic, and access barriers to health care and led to congressional appropriations

under the Snyder Act to support emerging Urban Indian clinics in several BIA relocation cities.

The 1976 Indian Health Care Improvement Act [IHCIA] provided authority for

urban health programs through provisions under title V. This authorized IHS to

provide funding to health programs serving urban Indian populations. The enactment of title V was a pivotal turning point for urban Indian health programs across

the Nation. Title V targeted specific funding for the development of programs for

American Indians who lived in urban areas. Since passage of this landmark legislation, amendments to title V have strengthened urban programs to expand medical

services, HIV services, health promotion and disease prevention services, as well as

mental health services, and alcohol and substance abuse services.
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It is from this richly complex environment that the Oklahoma City Indian Clinic

[OKCIC] was established in 1974 as an Indian-controlled, nonprofit corporation with

the sole purpose of serving the health care needs of American Indians in central

Oklahoma. In the beginning, like other programs mentioned above, the clinic’s volunteer staff operated in cramped, antiquated facilities, and was dependent upon donated medical supplies and equipment. But after the 1976 Indian Health Care Improvement Act was enacted, the Clinic enjoyed recognition and support of the Federal Government and the resources that followed.

The Native American population of Oklahoma is second only to that of the most

populated State, California. The 2000 Census indicated that 391,949 Oklahomans

identified their race as Indian when given the opportunity to indicate either full or

partial heritage. It is estimated that over 50,000 American Indians live in central

Oklahoma. There are 39 federally recognized tribal governments in Oklahoma alone,

with all tribal governments being located on tribal lands in rural areas, where they

generally have access to health care services through IHS and tribally operated

health care systems.

In 1995 the Oklahoma City Indian Clinic began serving patients from its new

27,000 square foot Corinne Y. Halfmoon Medical Facility, delivering a wide range

of services, including medical, prenatal, dental, pharmacy, optometry, as well as

family, behavioral health and substance abuse counseling and treatment. OKCIC

provides x-ray, ultrasound, lab and mammography services. Clinic patients make

use of diabetes and cardiovascular treatment and services, in addition to health and

nutrition education and preventative care services. OKCIC serves over 16,000 patients from more than 225 federally recognized tribes, employs diverse staff of approximately 90 people, and adheres to IHS’s Indian preference hiring policy.

The service population and overall utilization of services has increased dramatically over the past 15 years. Total outpatient visits for the Oklahoma City Indian

Clinic has increased from less than 20,000 in 1992, to more than 60,000 visits in

2006. During this timeframe the Oklahoma City Indian Clinic achieved national accreditation with the Accreditation Association for Ambulatory Health Care

[AAAHC].

The current Oklahoma City metropolitan health care system does not have the

capacity to absorb the Oklahoma City Indian Clinic patient load without overwhelming the hospital emergency rooms. It is imperative that the urban Indian health programs authorized under title V be allowed to continue as a vital part of the Indian

Health Service health care delivery system.

The mission of the Oklahoma City Indian Clinic is driven by our patient’s needs

and our ability to meet those needs. The Oklahoma City Indian Clinic plays a vital

role in IHS health care delivery system. H.R. 4818, the Consolidated Appropriations

Act, 2005, stipulates under the ‘‘Administrative Provisions, Indian Health Services’’

section that’’

Notwithstanding any other provision of law, the Tulsa and Oklahoma City

Clinic demonstration projects shall be permanent programs under the direct

care program of the Indian Health Service; shall be treated as service units

and operating units in the allocation of resources and coordination of care;

shall continue to meet the requirements applicable to an urban Indian organization under this title; and shall not be subject to the Indian Self-Determination and Education Assistance Act [25 U.S.C. 450 et seq.].

With the adoption of this language and after 30 years of providing health care

to Indians residing in Oklahoma City, OKCIC will continue to provide quality

health care to its eligible population. The Reauthorization is critical in meeting the

health needs of all Indians. With 66 percent of the American Indians now residing

in urban areas an increase in the Urban Title V of the IHCIA would assist in meeting the great disparity in urban health funding.

As the committee deliberates the reauthorization of the IHCIA, we ask Congress

to maintain the existing language concerning the Oklahoma City Indian Clinic so

that our patients will continue to receive high quality health care. The Oklahoma

City Indian Clinic’s provision of concern is with the deletion of section 124 (b), which

exempts National Health Service Corps [NHSC] scholars qualifying for the U.S.

Public Health Service Commissioned Corps to be exempt from the NHSC and IHS

full time equivalent [FTE] limitations when serving at a Tribal or urban Indian program. The placement of Commissioned Corps officers at these sites without FTE

limitations is a vital health professional recruitment tool, and thus the NSC recommends that Section 124(b) be reinserted.

In addition, the Oklahoma City Indian Clinic supports the testimony of Rachel Joseph, cochairperson of the National Steering Committee for the Reauthorization of
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the Indian Health Care Improvement Act. Before a hearing of the Senate Committee on Indian Affairs presented March 8, 2007.

PREPARED STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

Thank you, Mr. Chairman. I commend the committee for holding this hearing

today.

Indian tribes purchased the first pre-paid health plan in this Nation when they

ceded 550 million acres of tribal lands to the United States in exchange for the

United States’commitment to provide health care in perpetuity.

This contract was largely accomplished through treaties between the United

States and Sovereign Tribal Governments. However, it is important to note there

are other sources of authority for the Government’s responsibility to provide health

care services to Indian Nations and their citizens.

In 1976 the Indian Health Care Improvement Act was enacted into law for the

specific purpose of raising the health status of America’s Native peoples. While the

condition of Indian health care has improved, we can do better.

American Indians and Alaska Natives born today have a life expectancy that is

2.4 years less than others in the United States. They die from tuberculosis, alcoholism, motor vehicle accidents, diabetes, homicide, and suicide at higher rates than

other Americans.

In each Congress we have introduced legislation to address these conditions by

improving programs and services with the goal of assuring that all Native peoples

have full and timely access to quality health care.

However, I am concerned about assertions that some of the programs and services

under the Indian Health Care Improvement Act are based on race—assertions that

are not accurate.

These programs and services are based upon the government to government relationship that Presidents Nixon, Bush, Carter, Reagan, Clinton and Bush have all

consistently reaffirmed as the United States’ Fundamental Federal-Indian Policy.

Furthermore, the U.S. Constitution recognizes tribal governments as sovereign

governments. In Article 1, Section 8, Clause 3. The Congress is vested with the authority to conduct relations with the several States, Foreign Nations and Indian

Tribes.

Therefore, this bill should not be viewed as race-based, but rather as legislation

by which Congress is exercising its authority to address deficient health care conditions in Indian country.

I commend my colleagues, in particular Senator Dorgan, for holding this hearing

on a bill that provides crucial health care programs and services to Indian country.

I look forward to furthering this important initiative.

PREPARED STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM MONTANA

Thank you Mr. Chairman, first, let me thank you for introducing this legislation

and holding this hearing. I continually hear from my friends in Montana that Indians are struggling to access health care. I am saddened with every new story.

All of us on the committee have heard from our constituents that tell us about

the perils of getting sick or injured if you’re Indian in this country. For example,

most Indians know, ‘‘Don’t get sick after July’’ because the local clinic is out of

money by then.

Or, how about the situation where budgets only allow service for life or limbthreatening injuries?

Mr. Chairman, this just doesn’t make sense!

As parents, we preach to our children the importance of preventative medicine.

We tell our children how important it is to pay attention to their bodies and address

health issues as soon as they are aware of potential problems.

In other areas, we urge our citizens not to wait until they notice health problems.

We encourage them to test their bodies for cancer and other threatening illnesses,

even before they notice problems.

Why should it be so drastically different for my friends living on the Rocky Boy

Reservation? Why are we telling Indians that their health is not as important as

the health of everybody else in this country?

Mr. Chairman, our grandfathers and great grandfathers signed treaties with Indian people promising to provide, among other things, health care in perpetuity. We

have an obligation to Indian people and we have an obligation to American taxpayers.
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As you well know, an investment in health care is an investment in our future.

By investing money in health care, and encouraging good health, we save money

in the long-run. Waiting until a relatively routine injury becomes life or limb-threatening—is absurd!

If doctors can solve a minor problem before it becomes a major problem, we should

provide them with resources to accomplish that goal. If my friend in Browning gets

sick in August, he should see a doctor!

For those reasons, I will support passage of this bill. I look forward to working

with you to make that happen. Thank you, Mr. Chairman.
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