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 juris-
diction 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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Drug-Free Indian 
Health Service Act of 2016’’. 
SEC. 2. MANDATORY RANDOM DRUG TESTING OF CERTAIN 
EMPLOYEES OF INDIAN HEALTH SERVICE. 
(a) REGULATIONS.— 
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(1) IN GENERAL.—Not later than 90 days after 
the date of the enactment of this Act, the Secretary 
shall promulgate such regulations as are necessary 
to implement a mandatory random drug testing pro-
gram for covered employees of the Indian Health 
Service. Except as otherwise provided for in this sec-
tion, the Secretary shall promulgate such regulations 
in accordance with the— 
(A) guidelines promulgated on November 
25, 2008, titled ‘‘Mandatory Guidelines for 
Federal Workplace Drug Testing’’ (73 Fed. 
Reg. 71858); and 
(B) regulations promulgated under section 
264(c) of the Health Insurance Portability and 
Accountability Act of 1996 (42 U.S.C. 1320d– 
2 note). 
(2) TESTING OF CERTAIN DRUGS.—In carrying 
out the program required under paragraph (1), the 
Secretary shall ensure that each covered employee is 
tested not less than once per year for each of the 
following drugs: 
(A) Marijuana. 
(B) Cocaine. 
(C) Opiates. 
(D) Amphetamines. 
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(E) Methamphetamine. 
(F) Phencyclidine. 
(b) NOTICE OF MANDATORY RANDOM DRUG TEST-
ING PROGRAM.—Not less than 90 days before imple-
menting the program required under subsection (a), the 
Secretary shall provide written notice to all covered em-
ployees that— 
(1) a mandatory random drug testing program 
will be implemented; and 
(2) covered employees will have the opportunity, 
and reasonable time, to submit medical documenta-
tion of lawful use of a drug listed under subsection 
(a)(2). 
(c) NOTIFICATION OF SELECTION.—The Secretary 
shall— 
(1) notify a covered employee selected for ran-
dom drug testing under this section on the same 
day, but prior to, such testing; and 
(2) include in the notification an assurance that 
the covered employee was selected randomly and is 
under no suspicion of illegal drug use. 
(d) DEFERRAL OF TESTING.—A covered employee se-
lected for random drug testing under this section may ob-
tain a deferral of testing if the covered employee is— 
(1) in a leave status; or 
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(2) in official travel status away from the test 
site or will embark on official travel that was sched-
uled prior to the notification of selection under sub-
section (c). 
(e) FINDING OF ILLEGAL DRUG USE AND DISCIPLI-
NARY CONSEQUENCES.— 
(1) FINDING OF ILLEGAL DRUG USE.—The Sec-
retary may determine that a covered employee has 
engaged in illegal drug use based on any of the fol-
lowing: 
(A) A verified positive test result from a 
specimen submitted by the covered employee. 
(B) Direct observation by a higher-level su-
pervisor, including observed illegal drug use and 
the unlawful possession of a drug listed under 
subsection (a)(2). 
(C) Evidence obtained from an arrest or 
criminal conviction of the covered employee. 
(D) The voluntary admission of the cov-
ered employee. 
(2) MANDATORY ADMINISTRATIVE ACTION.— 
(A) IN GENERAL.—If a covered employee 
is found to have engaged in illegal drug use 
under paragraph (1), the Secretary shall— 
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(i) prohibit the covered employee from 
performing any activity related to pro-
viding health care or administrative serv-
ices to patients; and 
(ii) refer such employee to the Em-
ployee Assistance Program of the Depart-
ment of Health and Human Services. 
(B) RETURN TO DUTY.—At the discretion 
of the Secretary, a covered employee may re-
turn to performing activities related to pro-
viding health care or administrative services to 
patients after obtaining counseling or rehabili-
tation through the Employee Assistance Pro-
gram. 
(3) ADVERSE ACTIONS.— 
(A) IN GENERAL.—Subject to subsection 
(g), in addition to carrying out the required ac-
tions under paragraph (2), the Secretary may 
initiate an adverse action, including removal, 
against a covered employee who is found to 
have engaged in illegal drug use under para-
graph (1). 
(B) VOLUNTARY ADMISSION EXCEPTION.— 
The Secretary may not initiate an adverse ac-
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tion under subparagraph (A) against a covered 
employee who— 
(i) voluntarily admits to illegal drug 
use; 
(ii) ceases such illegal drug use; and 
(iii) obtains counseling or rehabilita-
tion through the Employee Assistance Pro-
gram. 
(f) REFUSAL TO SUBMIT TO RANDOM DRUG TEST-
ING AND DISCIPLINARY CONSEQUENCES.—If a covered 
employee refuses to submit to random drug testing under 
this section when so required, the Secretary— 
(1) shall prohibit the covered employee from 
performing any activity related to providing health 
care or administrative services to patients; and 
(2) subject to subsection (g), may initiate an 
adverse action, including removal, against such em-
ployee. 
(g) DUE PROCESS.—In carrying out an adverse ac-
tion under this section against a covered employee, the 
Secretary shall provide the covered employee with notice 
and an opportunity to respond. 
(h) APPEALS.—A covered employee subject to an ad-
ministrative or adverse action under this section may ap-
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peal such action to the Merit Systems Protection Board 
under section 7701 of title 5, United States Code. 
(i) NO ADDITIONAL FUNDS.—No additional funds 
are authorized to be appropriated for the purpose of car-
rying out this section. This section shall be carried out 
using amounts otherwise available for such purpose. 
(j) DEFINITIONS.—For purposes of this section: 
(1) COVERED EMPLOYEE.—The term ‘‘covered 
employee’’— 
(A) means an individual who— 
(i) is employed in a part-time or full- 
time position at a health care facility of 
the Indian Health Service (excluding tribal 
contract or compact health centers and 
urban Indian health centers); and 
(ii) provides health care or adminis-
trative services to patients at such health 
care facility; and 
(B) does not include officers of the Com-
missioned Corps of the United States Public 
Health Service. 
(2) EMPLOYEE
ASSISTANCE
PROGRAM.—The 
term ‘‘Employee Assistance Program’’ means the 
Employee Assistance Program of the Department of 
Health and Human Services. 
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(3) ILLEGAL
DRUG
USE.—The term ‘‘illegal 
drug use’’ means the unlawful use of a drug listed 
under subsection (a)(2) by a covered employee. 
(4) RANDOM DRUG TESTING.—The term ‘‘ran-
dom drug testing’’ means drug testing that is im-
posed on a covered employee without individualized 
suspicion that such employee is engaging, or has en-
gaged, in illegal drug use. 
(5) SECRETARY.—The term ‘‘Secretary’’ means 
the Secretary of Health and Human Services, acting 
through the Director of the Indian Health Service. 
(6) SPECIMEN.—The term ‘‘specimen’’ means 
urine collected from a covered employee for the pur-
pose of random drug testing under this section. 
Æ 
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