I 114th CONGRESS 2d Session H. R. 5437 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. Short title This Act may be cited as the Drug-Free Indian Health Service Act of 2016 . 2. Mandatory Random Drug Testing of Certain Employees of Indian Health Service (a) Regulations (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 program for covered employees of the Indian Health Service. Except as otherwise provided for in this section, 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. (E) Methamphetamine. (F) Phencyclidine. (b) Notice of Mandatory Random Drug Testing Program Not less than 90 days before implementing the program required under subsection (a), the Secretary shall provide written notice to all covered employees 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 documentation 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 random 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 selected for random drug testing under this section may obtain a deferral of testing if the covered employee is— (1) in a leave status; or (2) in official travel status away from the test site or will embark on official travel that was scheduled prior to the notification of selection under subsection (c). (e) Finding of Illegal Drug Use and Disciplinary Consequences (1) Finding of Illegal Drug Use The Secretary may determine that a covered employee has engaged in illegal drug use based on any of the following: (A) A verified positive test result from a specimen submitted by the covered employee. (B) Direct observation by a higher-level supervisor, 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 covered 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— (i) prohibit the covered employee from performing any activity related to providing health care or administrative services to patients; and (ii) refer such employee to the Employee Assistance Program of the Department of Health and Human Services. (B) Return to Duty At the discretion of the Secretary, a covered employee may return to performing activities related to providing health care or administrative services to patients after obtaining counseling or rehabilitation through the Employee Assistance Program. (3) Adverse Actions (A) In General Subject to subsection (g), in addition to carrying out the required actions 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 paragraph (1). (B) Voluntary Admission Exception The Secretary may not initiate an adverse action 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 rehabilitation through the Employee Assistance Program. (f) Refusal To Submit to Random Drug Testing 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 employee. (g) Due Process In carrying out an adverse action 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 administrative or adverse action under this section may appeal 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 carrying 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 administrative services to patients at such health care facility; and (B) does not include officers of the Commissioned 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. (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 random drug testing means drug testing that is imposed on a covered employee without individualized suspicion that such employee is engaging, or has engaged, 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 purpose of random drug testing under this section.