I 

114TH CONGRESS 

2D SESSION H. R. 5437 

To implement a mandatory random drug testing program for certain 

employees of the Indian Health Service, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 9, 2016 

Mrs. NOEM introduced the following bill; which was referred to the Committee 

on Natural Resources, and in addition to the Committee on Energy and 

Commerce, for a period to be subsequently determined by the Speaker, 

in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To implement a mandatory random drug testing program 

for certain employees of the Indian Health Service, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Drug-Free Indian 

5 Health Service Act of 2016’’. 

6 SEC. 2. MANDATORY RANDOM DRUG TESTING OF CERTAIN 

7 EMPLOYEES OF INDIAN HEALTH SERVICE. 

8 (a) REGULATIONS.— 


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1 (1) IN GENERAL.—Not later than 90 days after 

2 the date of the enactment of this Act, the Secretary 

3 shall promulgate such regulations as are necessary 

4 to implement a mandatory random drug testing pro5 gram for covered employees of the Indian Health 

6 Service. Except as otherwise provided for in this sec7 tion, the Secretary shall promulgate such regulations 

8 in accordance with the— 

9 (A) guidelines promulgated on November 

10 25, 2008, titled ‘‘Mandatory Guidelines for 

11 Federal Workplace Drug Testing’’ (73 Fed. 

12 Reg. 71858); and 

13 (B) regulations promulgated under section 

14 264(c) of the Health Insurance Portability and 

15 Accountability Act of 1996 (42 U.S.C. 1320d– 

16 2 note). 

17 (2) TESTING OF CERTAIN DRUGS.—In carrying 

18 out the program required under paragraph (1), the 

19 Secretary shall ensure that each covered employee is 

20 tested not less than once per year for each of the 

21 following drugs: 

22 (A) Marijuana. 

23 (B) Cocaine. 

24 (C) Opiates. 

25 (D) Amphetamines. 


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1 (E) Methamphetamine. 

2 (F) Phencyclidine. 

3 (b) NOTICE OF MANDATORY RANDOM DRUG TEST4 ING PROGRAM.—Not less than 90 days before imple5 menting the program required under subsection (a), the 

6 Secretary shall provide written notice to all covered em7 ployees that— 

8 (1) a mandatory random drug testing program 

9 will be implemented; and 

10 (2) covered employees will have the opportunity, 

11 and reasonable time, to submit medical documenta12 tion of lawful use of a drug listed under subsection 

13 (a)(2). 

14 (c) NOTIFICATION OF SELECTION.—The Secretary 

15 shall— 

16 (1) notify a covered employee selected for ran17 dom drug testing under this section on the same 

18 day, but prior to, such testing; and 

19 (2) include in the notification an assurance that 

20 the covered employee was selected randomly and is 

21 under no suspicion of illegal drug use. 

22 (d) DEFERRAL OF TESTING.—A covered employee se23 lected for random drug testing under this section may ob24 tain a deferral of testing if the covered employee is— 

25 (1) in a leave status; or 


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1 (2) in official travel status away from the test 

2 site or will embark on official travel that was sched3 uled prior to the notification of selection under sub4 section (c). 

5 (e) FINDING OF ILLEGAL DRUG USE AND DISCIPLI6 NARY CONSEQUENCES.— 

7 (1) FINDING OF ILLEGAL DRUG USE.—The Sec8 retary may determine that a covered employee has 

9 engaged in illegal drug use based on any of the fol10 lowing: 

11 (A) A verified positive test result from a 

12 specimen submitted by the covered employee. 

13 (B) Direct observation by a higher-level su14 pervisor, including observed illegal drug use and 

15 the unlawful possession of a drug listed under 

16 subsection (a)(2). 

17 (C) Evidence obtained from an arrest or 

18 criminal conviction of the covered employee. 

19 (D) The voluntary admission of the cov20 ered employee. 

21 (2) MANDATORY ADMINISTRATIVE ACTION.— 

22 (A) IN GENERAL.—If a covered employee 

23 is found to have engaged in illegal drug use 

24 under paragraph (1), the Secretary shall— 


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1 (i) prohibit the covered employee from 

2 performing any activity related to pro3 viding health care or administrative serv4 ices to patients; and 

5 (ii) refer such employee to the Em6 ployee Assistance Program of the Depart7 ment of Health and Human Services. 

8 (B) RETURN TO DUTY.—At the discretion 

9 of the Secretary, a covered employee may re10 turn to performing activities related to pro11 viding health care or administrative services to 

12 patients after obtaining counseling or rehabili13 tation through the Employee Assistance Pro14 gram. 

15 (3) ADVERSE ACTIONS.— 

16 (A) IN GENERAL.—Subject to subsection 

17 (g), in addition to carrying out the required ac18 tions under paragraph (2), the Secretary may 

19 initiate an adverse action, including removal, 

20 against a covered employee who is found to 

21 have engaged in illegal drug use under para22 graph (1). 

23 (B) VOLUNTARY ADMISSION EXCEPTION.— 

24 The Secretary may not initiate an adverse acVerDate Sep 11 2014 06:16 Jun 10, 2016 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5437.IH H5437

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1 tion under subparagraph (A) against a covered 

2 employee who— 

3 (i) voluntarily admits to illegal drug 

4 use; 

5 (ii) ceases such illegal drug use; and 

6 (iii) obtains counseling or rehabilita7 tion through the Employee Assistance Pro8 gram. 

9 (f) REFUSAL TO SUBMIT TO RANDOM DRUG TEST10 ING AND DISCIPLINARY CONSEQUENCES.—If a covered 

11 employee refuses to submit to random drug testing under 

12 this section when so required, the Secretary— 

13 (1) shall prohibit the covered employee from 

14 performing any activity related to providing health 

15 care or administrative services to patients; and 

16 (2) subject to subsection (g), may initiate an 

17 adverse action, including removal, against such em18 ployee. 

19 (g) DUE PROCESS.—In carrying out an adverse ac20 tion under this section against a covered employee, the 

21 Secretary shall provide the covered employee with notice 

22 and an opportunity to respond. 

23 (h) APPEALS.—A covered employee subject to an ad24 ministrative or adverse action under this section may apVerDate Sep 11 2014 06:16 Jun 10, 2016 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5437.IH H5437

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1 peal such action to the Merit Systems Protection Board 

2 under section 7701 of title 5, United States Code. 

3 (i) NO ADDITIONAL FUNDS.—No additional funds 

4 are authorized to be appropriated for the purpose of car5 rying out this section. This section shall be carried out 

6 using amounts otherwise available for such purpose. 

7 (j) DEFINITIONS.—For purposes of this section: 

8 (1) COVERED EMPLOYEE.—The term ‘‘covered 

9 employee’’— 

10 (A) means an individual who— 

11 (i) is employed in a part-time or full12 time position at a health care facility of 

13 the Indian Health Service (excluding tribal 

14 contract or compact health centers and 

15 urban Indian health centers); and 

16 (ii) provides health care or adminis17 trative services to patients at such health 

18 care facility; and 

19 (B) does not include officers of the Com20 missioned Corps of the United States Public 

21 Health Service. 

22 (2) EMPLOYEE ASSISTANCE PROGRAM.—The 

23 term ‘‘Employee Assistance Program’’ means the 

24 Employee Assistance Program of the Department of 

25 Health and Human Services. 


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1 (3) ILLEGAL DRUG USE.—The term ‘‘illegal 

2 drug use’’ means the unlawful use of a drug listed 

3 under subsection (a)(2) by a covered employee. 

4 (4) RANDOM DRUG TESTING.—The term ‘‘ran5 dom drug testing’’ means drug testing that is im6 posed on a covered employee without individualized 

7 suspicion that such employee is engaging, or has en8 gaged, in illegal drug use. 

9 (5) SECRETARY.—The term ‘‘Secretary’’ means 

10 the Secretary of Health and Human Services, acting 

11 through the Director of the Indian Health Service. 

12 (6) SPECIMEN.—The term ‘‘specimen’’ means 

13 urine collected from a covered employee for the pur14 pose of random drug testing under this section. 

Æ 


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