IB Union Calendar No. 872 115th CONGRESS 2d Session H. R. 5874 [Report No. 115–1065, Part I] IN THE HOUSE OF REPRESENTATIVES May 18, 2018 Mrs. Noem (for herself, Mr. Bishop of Utah , Mr. Mullin , Mrs. McMorris Rodgers , Mr. Cole , Mr. LaMalfa , Mr. Cramer , Mrs. Radewagen , and Miss González-Colón of Puerto Rico ) introduced the following bill; which was referred to the Committee on Natural Resources , and in addition to the Committees on Energy and Commerce , Ways and Means , and Oversight and Government Reform , 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 December 3, 2018 Reported from the Committee on Natural Resources December 3, 2018 Referral to the Committees on Energy and Commerce , Ways and Means , and Oversight and Government Reform extended for a period ending not later than December 28, 2018 December 28, 2018 Committees on Energy and Commerce , Ways and Means , and Oversight and Government Reform discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed A BILL To amend the Indian Health Care Improvement Act to improve the recruitment and retention of employees in the Indian Health Service, restore accountability in the Indian Health Service, improve health services, and for other purposes.

1. Short title This Act may be cited as the Restoring Accountability in the Indian Health Service Act of 2018 . 2. Table of contents The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. TITLE I—Indian Health Service improvements Sec. 101. Incentives for recruitment and retention. Sec. 102. Medical credentialing system. Sec. 103. Liability protections for health professional volunteers at Indian Health Service. Sec. 104. Clarification regarding eligibility for Indian Health Service loan repayment program. Sec. 105. Improvements in hiring practices. Sec. 106. Improved authorities of secretary to improve accountability of senior executives and employees of the Indian Health Service. Sec. 107. Tribal culture and history. Sec. 108. Staffing demonstration project. Sec. 109. Rule establishing tribal consultation policy. Sec. 110. Treatment of certain hospitals. TITLE II—Employee protections Sec. 201. Employee protections against retaliation. Sec. 202. Right of Federal employees to petition Congress. Sec. 203. Fiscal accountability. TITLE III—Reports Sec. 301. Definitions. Sec. 302. Reports by the Secretary of Health and Human Services. Sec. 303. Reports by the Comptroller General. Sec. 304. Inspector General reports. Sec. 305. Transparency in CMS surveys. TITLE IV—Technical amendments Sec. 401. Technical amendments. I Indian Health Service improvements 101. Incentives for recruitment and retention Title I of the Indian Health Care Improvement Act ( 25 U.S.C. 1611 et seq.) is amended by adding at the end the following: 125. Incentives for recruitment and retention (a) Parity in IHS health care workforce personnel and pay system The Secretary shall establish a personnel and pay system for physicians, dentists, nurses, and other health care professionals employed by the Service that provides a personnel and pay system that, to the maximum extent practicable, is comparable to the pay provided to physicians, dentists, nurses, and other health care professionals, respectively, under subchapters III and IV of chapter 74 of title 38, United States Code. (b) Relocation costs The Secretary may provide to an employee of the Service reimbursement for any relocation costs the employee incurs if— (1) the employee relocates to a Service area experiencing a high level of need for employees, as determined by the Secretary; and (2) the employee is filling a position that would otherwise be difficult to fill, as determined by the Secretary, in the absence of an incentive. (c) Housing vouchers (1) In general Subject to paragraph (2), not later than 1 year after the date of enactment of the Restoring Accountability in the Indian Health Service Act of 2018 , the Secretary may establish a program to provide tenant-based rental assistance to an employee of the Service who— (A) agrees to serve for not less than 1 year at a Service unit designated by the Administrator of the Health Resources and Services Administration as a health professional shortage area, as defined in section 332(a) of the Public Health Service Act ( 42 U.S.C. 254e(a) ), with the greatest staffing need; and (B) is a critical employee, as determined by the Secretary. (2) Sunset Any program established by the Secretary under paragraph (1) shall terminate on the date that is 3 years after the date on which any such program is established. (d) Administration (1) OPM guidelines The Secretary shall carry out subsection (b) in accordance with any guidelines of the Office of Personnel Management relating to section 572 of title 5, Code of Federal Regulations (as in effect on the date of enactment of the Restoring Accountability in the Indian Health Service Act of 2018 ). (2) Service agreements The Secretary may only provide reimbursement for any relocation costs under subsection (b) or any other benefit under subsection (c) to— (A) a full-time employee who agrees to serve for not less than 1 year in the Service, beginning on the date of the agreement; or (B) a part-time employee who agrees to serve for not less than 2 years in the service beginning on the date of the agreement. . 102. Medical credentialing system Title I of the Indian Health Care Improvement Act ( 25 U.S.C. 1611 et seq.), as amended by section 101, is further amended by adding at the end the following: 126. Medical credentialing system (a) In general (1) Development and implementation timeline By not later than 1 year after the date of enactment of the Restoring Accountability in the Indian Health Service Act of 2018 , the Secretary, acting through the Service and in accordance with the requirements described in subsection (b), shall develop and implement a Service-wide centralized electronic credentialing system (referred to in this section as the credentialing system ) to credential licensed health professionals who seek to provide health care services at any Service unit, including physicians, nurses and physicians assistants. (2) Implementation In implementing the credentialing system, the Secretary— (A) shall not require re-credentialing of licensed health professionals who were credentialed using existing Service policy prior to the date of enactment of the Restoring Accountability in the Indian Health Service Act of 2018 ; and (B) shall— (i) use the credentialing system for all new applications of licensed health professionals and the migration of credentials data that existed prior to implementation into the system; (ii) maintain the established timeline for re-credentialing of licensed health professionals who were credentialed prior to implementation, as defined by Service policy; and (iii) review credentials for all professionals in the system, based on updated policies, on a not less than yearly basis. Licensed health professionals whose credentials would not have been approved under the updated policies shall have 90 days to meet the new requirements. (b) Requirements In developing the credentialing system under subsection (a), the Secretary shall ensure the following: (1) Credentialing procedures shall be uniform and integrated throughout the Service. (2) With respect to each licensed health professional who successfully completes the credentialing procedures of the credentialing system, the Secretary may authorize each such professional to provide health care services at any Service unit. (3) Credentialing procedures shall include verification of licensure, education, employment history, and criminal background checks and history. (c) Consultation In developing the credentialing system under subsection (a), the Secretary shall consult with Indian Tribes and may also consult with any public or private association of medical providers, any government agency, or other relevant expert, as determined by the Secretary. (d) Application A licensed health care professional may not provide health care services at any Service unit, unless such professional successfully completes the credentialing procedures of the credentialing system developed under subsection (a). (e) Regulations The Secretary may prescribe such regulations as may be necessary to carry out the provisions of this section. (f) Rule of construction Nothing in this section may be construed— (1) to negatively impact the right of an Indian Tribe to enter into a compact or contract under the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304 et seq.); and (2) to apply to such a compact or contract unless expressly agreed to by the Indian Tribe. . 103. Liability protections for health professional volunteers at Indian Health Service Section 224 of the Public Health Service Act ( 42 U.S.C. 233 ) is amended by adding at the end the following: (r) Certain Indian Health Service volunteers deemed Public Health Service employees (1) In general For purposes of this section, an employee of an IHS urban Indian health program and a health professional volunteer at a Service unit shall, in providing a health service to an individual, be deemed to be an employee of the Public Health Service for a calendar year that begins during a fiscal year for which a transfer was made under paragraph (4)(C). The preceding sentence is subject to the provisions of this subsection. (2) Conditions In providing a health service to an individual, a health care practitioner shall, for purposes of this subsection, be considered to be a health professional volunteer at a Service unit if all of the following conditions are met: (A) The service is provided to the individual at the facilities of a Service unit, or through offsite programs or events carried out by the Service unit. (B) The Service unit is sponsoring the health care practitioner pursuant to paragraph (3)(C). (C) The health care practitioner does not receive any compensation for the service from the individual, the Service unit, or any third-party payer (including reimbursement under any insurance policy or health plan, or under any Federal or State health benefits program), except that the health care practitioner may receive repayment from the Service unit for reasonable expenses incurred by the health care practitioner in the provision of the service to the individual. (D) Before the service is provided, the health care practitioner or the Service unit posts a clear and conspicuous notice at the site where the service is provided of the extent to which the legal liability of the health care practitioner is limited under this subsection. (E) At the time the service is provided, the health care practitioner is licensed, certified, credentialed, and privileged in accordance with Service policy and applicable law regarding the provision of the service. (3) Applicability Subsection (g) (other than paragraphs (3) and (5)) and subsections (h), (i), and (l) apply to an employee of an IHS urban Indian health program and to a health care practitioner at a Service unit for purposes of this subsection to the same extent and in the same manner as such subsections apply to an officer, governing board member, employee, or contractor of an entity described in subsection (g)(4), subject to paragraph (4) and subject to the following subparagraphs: (A) Each reference to an entity in subsections (g), (h), (i), and (l) shall be considered to be a reference to an IHS urban Indian health program or a Service unit, as applicable. (B) The first sentence of paragraph (1) applies in lieu of the first sentence of subsection (g)(1)(A). (C) With respect to a Service unit, a health care practitioner is not a health professional volunteer at the Service unit unless the Service unit sponsors the health care practitioner. For purposes of this subsection, the Service unit shall be considered to be sponsoring the health care practitioner if— (i) with respect to the health care practitioner, the Service unit submits to the Secretary an application meeting the requirements of subsection (g)(1)(D); and (ii) the Secretary, pursuant to subsection (g)(1)(E), determines that the health care practitioner is deemed to be an employee of the Public Health Service. (D) In the case of a health care practitioner who is determined by the Secretary pursuant to this subsection and subsection (g)(1)(E) to be a health professional volunteer, this subsection applies to the health care practitioner (with respect to services performed on behalf of the Service unit sponsoring the health care practitioner pursuant to subparagraph (C)) for any cause of action arising from an act or omission of the health care practitioner occurring on or after the date on which the Secretary makes that determination. (E) Subsection (g)(1)(F) applies to a health care practitioner for purposes of this subsection only to the extent that, in providing health services to an individual, each of the conditions described in paragraph (2) is met. (4) Funding (A) In general Amounts in the fund established under subsection (k)(2) shall be available for transfer under subparagraph (C) for purposes of carrying out this subsection. (B) Annual estimates (i) In general Not later than May 1 of each fiscal year, the Attorney General, in consultation with the Secretary, shall submit to Congress a report providing an estimate of the amount of claims (together with related fees and expenses of witnesses) that, by reason of the acts or omissions of employees of an IHS urban Indian health program or health professional volunteers, will be paid pursuant to this section during the calendar year that begins in the following fiscal year. (ii) Applicability Subsection (k)(1)(B) applies to the estimate under clause (i) relating to employees of an IHS urban Indian health program or health professional volunteers to the same extent and in the same manner as that subsection applies to the estimate under that subsection relating to officers, governing board members, employees, and contractors of entities described in subsection (g)(4). (C) Transfers Not later than December 31 of each fiscal year, the Secretary shall transfer from the fund under subsection (k)(2) to the appropriate accounts in the Treasury an amount equal to the estimate made under subparagraph (B) for the calendar year beginning in that fiscal year, subject to the extent of amounts in the fund. (5) Definitions (A) IHS urban Indian health program In this subsection, the term IHS urban Indian health program means an urban Indian health program operated by an urban Indian organization pursuant to a grant or contract with the Indian Health Service under title V of the Indian Health Care Improvement Act ( 25 U.S.C. 1651 et seq.). (B) Service unit In this subsection, the term Service unit has the meaning given the term in section 4 of the Indian Health Care Improvement Act ( 25 U.S.C. 1603 ). (6) Rule of construction Nothing in this subsection may be construed— (A) to negatively impact the right of an Indian Tribe to enter into a compact or contract under the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304 et seq.); and (B) to apply to such a compact or contract unless expressly agreed to by the Indian Tribe. (7) Effective dates (A) In general Except as provided in subparagraph (B), this subsection shall take effect on October 1, 2019. (B) Regulations, applications, and reports Effective on the date of the enactment of the Restoring Accountability in the Indian Health Service Act of 2018 , the Secretary may— (i) prescribe regulations for carrying out this subsection; and (ii) accept and consider applications submitted under paragraph (3)(C)(i). . 104. Clarification regarding eligibility for Indian Health Service loan repayment program Section 108 of the Indian Health Care Improvement Act ( 25 U.S.C. 1616a ) is amended— (1) by amending subparagraph (B) of subsection (b)(1) to read as follows: (B) have— (i) (I) a degree in a health profession; and (II) a license to practice a health profession in a State; or (ii) (I) a master's degree in business administration with an emphasis in health care management (as defined by the Secretary), health administration, hospital administration, or public health; and (II) a license or certification to practice in the field of business administration, health administration, hospital administration, or public health in a State, if the Secretary determines such license or certification necessary for the Indian health program to which the individual will be assigned; (iii) maintain credentials as determined by the system described in section 102; and (iv) participate in the training described in section 107; ; (2) by amending clause (iii) of subsection (f)(1)(B) to read as follows: (iii) to serve for a time period (referred to in this section as the period of obligated service ) equal to— (I) 2 years or such longer period as the individual may agree to serve in the full-time practice of such individual’s profession in an Indian health program to which the individual may be assigned by the Secretary; or (II) 4 years or such longer period as the individual may agree to serve in the half-time practice of such individual’s profession in an Indian health program to which the individual may be assigned by the Secretary; ; and (3) in subsection (g)(2)— (A) by redesignating subparagraph (B) as subparagraph (C); and (B) in subparagraph (A)— (i) by striking the first sentence of the matter preceding clause (i) and inserting the following: In the case of an individual who contracts to serve a period of obligated service under subsection (f)(1)(B)(iii)(I), for each year of such obligated service, the Secretary may pay up to $35,000 (or an amount equal to the amount specified in section 338B(g)(2)(A) of the Public Health Service Act ( 42 U.S.C. 254l–1(g)(2)(A) )) on behalf of the individual for loans described in paragraph (1). In the case of an individual who contracts to serve a period of obligated service under subsection (f)(1)(B)(iii)(II), for each year of such obligated service, the Secretary may pay up to $17,500 on behalf of the individual for loans described in paragraph (1) ; and (ii) by striking In making a determination and inserting the following: (B) In making a determination under this paragraph . 105. Improvements in hiring practices (a) In general Title VI of the Indian Health Care Improvement Act ( 25 U.S.C. 1661 et seq.) is amended by adding at the end the following: 605. Improvements in hiring practices (a) Direct hire authority The Secretary may appoint, without regard to subchapter I of chapter 33 of title 5, United States Code (other than sections 3303 and 3328 of such title), a candidate directly to a position within the Service for which the candidate meets the qualifications standard established by the Office of Personnel Management. (b) Tribal notification Before appointing, hiring, promoting, transferring, or reassigning a candidate to a Senior Executive Service position or the position of a manager at an Area office or Service unit, the Secretary shall provide notice to each Indian Tribe located within the defined geographic area of such Area office or Service unit, as the case may be, of the content of an inclusion in an employment record. Each such Indian Tribe may submit comment to the Secretary during the 10-day period after the date of such notification regarding such content. . (b) In general Subsection (c) of section 2 of the Act of December 15, 1979 ( 25 U.S.C. 5117 ), is amended by adding the following: (3) IHS waivers The Secretary of Health and Human Services may, at the request of an Indian Tribe, seek from each Indian Tribe concerned, a waiver of Indian preference laws for a personnel action that is with respect to— (A) an Indian Health Service unit in which 15 percent or more of the total positions or specific health professionals in the Service unit are not filled by a full-time employee of the Indian Health Service for a period of 6 months or longer; or (B) a former employee of the Indian Health Service or a former tribal employee who was removed from such former employment within, or demoted for performance or misconduct that occurred during, the 5-year period following the date of such personnel action. . 106. Improved authorities of secretary to improve accountability of senior executives and employees of the Indian Health Service (a) In general Title VI of the Indian Health Care Improvement Act ( 25 U.S.C. 1661 et seq.), as amended by section 105, is further amended by adding at the end the following: 606. Improved authorities of secretary to improve accountability of senior executives of the Indian Health Service (a) Authority (1) In general The Secretary may, as provided in this section, reprimand or suspend, involuntarily reassign, demote, or remove a covered individual from a senior executive position at the Service if the Secretary determines that the misconduct or performance of the covered individual warrants such action. (2) Removal from civil service If the Secretary removes an individual pursuant to paragraph (1), the Secretary may remove the individual from the civil service (as defined in section 2101 of title 5, United States Code). (b) Rights and procedures (1) In general A covered individual who is the subject of an action under subsection (a) is entitled to— (A) advance notice of the action and a file containing all evidence in support of the proposed action; (B) be represented by an attorney or other representative of the covered individual’s choice; and (C) grieve the action in accordance with an internal grievance process that the Secretary shall establish for purposes of this subsection. (2) Notice (A) Aggregate period for notice The aggregate period for notice, response, and decision on an action under subsection (a) may not exceed 15 business days. (B) Response The period for the response of a covered individual to a notice under paragraph (1)(A) of an action under subsection (a) shall be 7 business days. (C) Decision A decision under this paragraph on an action under subsection (a) shall be issued not later than 15 business days after notice of the action is provided to the covered individual under paragraph (1)(A). The decision shall be in writing, and shall include the specific reasons for the decision. (3) Grievance process The Secretary shall ensure that the grievance process established under paragraph (1)(C) takes fewer than 21 days. (4) Final and conclusive decision A decision under paragraph (2) that is not grieved, and a grievance decision under paragraph (3), shall be final and conclusive. (5) Judicial review A covered individual adversely affected by a decision under paragraph (2) that is not grieved, or by a grievance decision under paragraph (3), may obtain judicial review of such decision. (6) Court review In any case in which judicial review is sought under paragraph (5), the court shall review the record and may set aside any Department action found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with a provision of law; (B) obtained without procedures required by a provision of law having been followed; or (C) unsupported by substantial evidence. (c) Relation to other provisions of law Section 3592(b)(1) of title 5, United States Code, does not apply to an action under subsection (a). (d) Definitions In this section: (1) Covered individual The term covered individual means a career appointee (as that term is defined in section 3132(a) of title 5, United States Code). (2) Misconduct The term misconduct includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. (3) Secretary The term Secretary means the Secretary of Health and Human Services, acting through the Director of the Service. (4) Senior executive position The term senior executive position means a Senior Executive Service position (as that term is defined in section 3132(a) of title 5, United States Code). 607. Improved authorities of secretary to improve accountability of employees of the Indian Health Service (a) In general (1) Authority The Secretary may remove, demote, or suspend a covered individual who is an employee of the Service if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension. (2) Actions If the Secretary removes, demotes, or suspends a covered individual pursuant to paragraph (1), the Secretary may— (A) remove the covered individual from the civil service (as defined in section 2101 of title 5, United States Code); (B) demote the covered individual by means of a reduction in grade for which the covered individual is qualified, that the Secretary determines is appropriate, and that reduces the annual rate of pay of the covered individual; or (C) suspend the covered individual. (b) Pay of certain demoted individuals (1) In general Notwithstanding any other provision of law, any covered individual subject to a demotion under subsection (a)(2) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade. (2) Restrictions (A) Prohibition on administrative leave A covered individual subject to a demotion under subsection (a)(2) may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave. (B) Restriction on pay and benefits If a covered individual subject to a demotion under subsection (a)(2) does not report for duty or receive approval to use accrued unused leave, such covered individual shall not receive pay or other benefits pursuant to subsection (d)(5). (c) Procedures (1) In general (A) Aggregate period The aggregate period for notice, response, and final decision in a removal, demotion, or suspension under this section may not exceed 15 business days. (B) Period for response The period for the response of a covered individual to a notice of a proposed removal, demotion, or suspension under this section shall be 7 business days. (C) Representation by attorney or other representative Paragraph (3) of subsection (b) of section 7513 of title 5, United States Code, shall apply with respect to a removal, demotion, or suspension under this section. (D) Procedures superseding CBAs The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures. (2) Final decision The Secretary shall issue a final decision with respect to a removal, demotion, or suspension under this section not later than 15 business days after the Secretary provides notice, including a file containing all the evidence in support of the proposed action, to the covered individual of the removal, demotion, or suspension. The decision shall be in writing and shall include the specific reasons for the decision. (3) Performance appraisal The procedures under chapter 43 of title 5, United States Code, shall not apply to a removal, demotion, or suspension under this section. (4) Appeal to merit systems protection board (A) In general Subject to subparagraph (B) and subsection (d), any removal or demotion under this section, and any suspension of more than 14 days under this section, may be appealed to the Merit Systems Protection Board, which shall refer such appeal to an administrative judge pursuant to section 7701(b)(1) of title 5, United States Code. (B) Time period An appeal under subparagraph (A) of a removal, demotion, or suspension may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension. (d) Expedited review (1) In general Upon receipt of an appeal under subsection (c)(4)(A), the administrative judge shall expedite any such appeal under section 7701(b)(1) of title 5, United States Code, and, in any such case, shall issue a final and complete decision not later than 180 days after the date of the appeal. (2) Upholding decision (A) In general Notwithstanding section 7701(c)(1)(B) of title 5, United States Code, the administrative judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence. (B) Prohibition of mitigation Notwithstanding title 5, United States Code, or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary. (3) Appeal to merit systems protection board (A) In general The decision of the administrative judge under paragraph (1) may be appealed to the Merit Systems Protection Board. (B) Upholding decision Notwithstanding section 7701(c)(1)(B) of title 5, United States Code, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence. (C) Prohibition of mitigation Notwithstanding title 5, United States Code, or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the Merit Systems Protection Board shall not mitigate the penalty prescribed by the Secretary. (4) Report In any case in which the administrative judge cannot issue a decision in accordance with the 180-day requirement under paragraph (1), the Merit Systems Protection Board shall, not later than 14 business days after the expiration of the 180-day period, submit to the appropriate committees of Congress a report that explains the reasons why a decision was not issued in accordance with such requirement. (5) Appeal A decision of the Merit Systems Protection Board under paragraph (3) may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5, United States Code, or to any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B) of such section. (6) Prohibition against stays The Merit Systems Protection Board may not stay any removal or demotion under this section, except as provided in section 1214(b) of title 5, United States Code. (7) Restriction on pay and benefits during appeal During the period beginning on the date on which a covered individual appeals a removal from the civil service under subsection (c) and ending on the date that the United States Court of Appeals for the Federal Circuit issues a final decision on such appeal, such covered individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits related to the employment of the individual by the Service. (8) Information to expedite appeal To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board such information and assistance as may be necessary to ensure an appeal under this subsection is expedited. (9) Backpay If an employee prevails on appeal under this section, the employee shall be entitled to backpay (as provided in section 5596 of title 5, United States Code). (10) Applicable timelines and procedures If an employee who is subject to a collective bargaining agreement chooses to grieve an action taken under this section through a grievance procedure provided under the collective bargaining agreement, the timelines and procedures set forth in subsection (c) and this subsection shall apply. (e) Alleged prohibited personnel practice In the case of a covered individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, United States Code, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5, United States Code. (f) Termination of investigations by Office of Special Counsel (1) In general Notwithstanding any other provision of law, the Special Counsel (established by section 1211 of title 5, United States Code) may terminate an investigation of a prohibited personnel practice alleged by an employee or former employee of the Service after the Special Counsel provides to the employee or former employee a written statement of the reasons for the termination of the investigation. (2) Admissibility The statement described in paragraph (1) may not be admissible as evidence in any judicial or administrative proceeding without the consent of the employee or former employee described in paragraph (1). (g) Vacancies In the case of a covered individual who is removed or demoted under subsection (a), to the maximum extent feasible, the Secretary shall fill the vacancy arising as a result of such removal or demotion. (h) Definitions In this section: (1) Covered individual The term covered individual means an individual occupying a position at the Service, but does not include— (A) an individual occupying a senior executive position (as defined in section 606(d)); (B) an individual who has not completed a probationary or trial period; or (C) a political appointee. (2) Grade The term grade has the meaning given such term in section 7511(a) of title 5, United States Code. (3) Misconduct The term misconduct includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. (4) Political appointee The term political appointee means an individual who is— (A) employed in a position described under sections 5312 through 5316 of title 5, United States Code (relating to the Executive Schedule); (B) a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5, United States Code; or (C) employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or successor regulation. (5) Secretary The term Secretary means the Secretary of Health and Human Services, acting through the Director of the Service. (6) Suspend The term suspend means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay for a period in excess of 14 days. . (b) Conforming amendments Section 4303(f) of title 5, United States Code, is amended— (1) in paragraph (3), by striking or at the end; (2) in paragraph (4), by striking the period at the end and inserting , or ; and (3) by adding at the end the following: (5) any removal or demotion under section 607 of the Indian Health Care Improvement Act. . (c) Report Not later than 18 months after the date of enactment of this Act, the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services shall submit a report to Congress that includes the following: (1) The number of employees of the Indian Health Service who were removed, demoted, or suspended in the 1-year period before the date of enactment of this Act. (2) The number of employees of the Indian Health Service who were removed, demoted, or suspended in the 1-year period after the date of enactment of this Act using the updated authorities provided in the amendments made by this Act. (3) The appropriate details of removals, demotions, and suspensions that lend necessary context. 107. Tribal culture and history Section 113 of the Indian Health Care Improvement Act ( 25 U.S.C. 1616f ) is amended— (1) in subsection (a)— (A) by striking a program and inserting an annual mandatory training program ; and (B) by striking appropriate employees of the Service and inserting employees of the Service, locum tenens medical providers, healthcare volunteers, and other contracted employees who work at Service hospitals or other Service units and whose employment requires regular direct patient access ; and (2) by adding at the end the following: (c) Notwithstanding any other provision of law, beginning with the year of the date of enactment of the Restoring Accountability in the Indian Health Service Act of 2018 , each employee or provider described in subsection (a) who enters into a contract with the Service on or after the date of such implementation shall, as a condition of employment, annually participate in and complete such training program. For purposes of the preceding sentence, participation in such training program may not be considered complete for the year involved until the individual satisfies each requirement, including testing, if applicable, of the training program for such year, as specified by the Secretary. . 108. Staffing demonstration project Title VIII of the Indian Health Care Improvement Act ( 25 U.S.C. 1671 et seq.) is amended by adding at the end the following: 833. Staffing demonstration project (a) In general The Secretary, acting through the Service, shall establish a demonstration project that authorizes the Service to provide federally managed Service units with additional staffing resources with the goal that the resources become self-sustaining. (b) Selection In selecting Service units for participation, the Secretary shall consider whether a Service unit services an Indian Tribe that— (1) has utilized or contributed substantial tribal funds to construct a health facility used by the Service or identified in the master plan for the Service unit; (2) is located in a State or States with Medicaid reimbursements plans or policies that will increase the likelihood that the staffing resources provided will be self-sustaining; and (3) is operating a health facility described in paragraph (1) under historical staffing ratios that have not been equalized or updated by the Service or any other Service program to reflect current staffing needs. (c) Duration Staffing resources provided to a Service unit under this section shall be for a duration that the Secretary, in consultation with the applicable Indian Tribe, determines appropriate, except that each staffing position provided shall be for a period of not less than 3 fiscal years. (d) Effect of staffing awards No staffing resources provided under this section shall reduce the recurring base funding for staffing for any Indian Tribe or federally managed Service unit. (e) Report Not later than 5 years after the Secretary ends the demonstration project under this section, the Secretary shall prepare and submit a report to the Committee on Indian Affairs and the Committee on Health, Education, Labor, and Pensions of the Senate, and the Committee on Natural Resources and the Committee on Energy and Commerce of the House of Representatives, regarding the project, including— (1) whether the staffing resources resulted in additional revenue for the Service unit sufficient to maintain the staff on a permanent basis; (2) the levels to which the staffing resources reduced the unmet staffing need for the Service unit; and (3) whether the demonstration project could be deployed to reduce unmet staffing needs throughout the Service. . 109. Rule establishing tribal consultation policy Title VIII of the Indian Health Care Improvement Act ( 25 U.S.C. 1671 et seq.), as amended by section 108, is further amended by adding at the end the following: 834. Rule establishing tribal consultation policy (a) In General Not later than 1 year after the date of enactment of the Restoring Accountability in the Indian Health Service Act of 2018 , the Secretary shall establish, after meaningful consultation with representatives of affected Indian Tribes, a rule establishing a tribal consultation policy for the Service. (b) Contents of tribal consultation policy The policy established under the rule described in subsection (a) shall— (1) update, and replace, the tribal consultation policy established under Circular No. 2006–01 of the Service, or any successor policy; and (2) include the following: (A) A process for determining when the Service will notify Indian Tribes, and a description of how the Indian Tribes should be notified. (B) A determination of what actions or agency decisions by the Service will trigger a requirement for meaningful consultation with Indian Tribes. (C) A determination of what actions constitute meaningful consultation with Indian Tribes. . 110. Treatment of certain hospitals The Parallel Low-Volume Hospital Payment Adjustment Regarding Hospitals Operated by the Indian Health Services (IHS) or a Tribe provisions described in the final rule published by the Centers for Medicare & Medicaid Services in the Federal Register on August 14, 2017, and entitled Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2018 Rates; Quality Reporting Requirements for Specific Providers; Medicare and Medicaid Electronic Health Record (EHR) Incentive Program Requirements for Eligible Hospitals, Critical Access Hospitals, and Eligible Professionals; Provider-Based Status of Indian Health Service and Tribal Facilities and Organizations; Costs Reporting and Provider Requirements; Agreement Termination Notices (82 Fed Reg. 37990; 38188–38189), shall apply with respect to discharges occurring in fiscal year 2011 and subsequent fiscal years. II Employee protections 201. Employee protections against retaliation (a) In general Title VI of the Indian Health Care Improvement Act ( 25 U.S.C. 1661 et seq.), as amended by sections 105 and 106, is further amended by adding at the end the following: 608. Employee protections against retaliation (a) Employee accountability (1) Agency reporting process requirement The Secretary shall designate an official in the Department who is not an employee of the Service to— (A) receive reports from an employee of the Service who witnesses retaliation against a whistleblower, a violation of a patient safety requirement, or other similar conduct; and (B) conduct active and ongoing outreach to all employees of the Service about— (i) Federal and Department systems for reporting retaliation against whistleblowers; and (ii) the duty of individual employees of the Service to report violations of patient safety requirements and other similar conduct. (2) Oversight Not later than 3 days after the date on which the official designated by the Secretary under paragraph (1) receives a report under paragraph (1)(A), the Secretary shall— (A) formally review the report; and (B) provide a copy of such report and any other relevant information to the Inspector General of the Department. (3) Removal for whistleblower retaliation The Secretary may remove for misconduct from the civil service (as defined in section 2101 of title 5, United States Code), in accordance with sections 606 and 607, an employee of the Service if the Secretary determines, after completing a report review described in paragraph (2), that the employee has retaliated against a whistleblower and warrants removal. (4) Enhancing protections for whistleblowers The Secretary shall carry out any actions determined necessary by the Secretary to enhance protection for whistleblowers, including identifying appropriate Service employees and requiring the employees to complete the Office of Special Counsel's Whistleblower Certification Program. (b) Definitions In this section: (1) Retaliation The term retaliation — (A) means an adverse employment action or any significantly adverse action against a whistleblower, such as the refusal or delay of care provided through the Service; and (B) includes instances where the adverse action described in subparagraph (A) is perpetrated against a family member or friend of the whistleblower because of the whistleblower’s disclosure of information. (2) Whistleblower The term whistleblower means an employee of Service who discloses information— (A) that the employee reasonably believes evidences— (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and (B) if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs. . 202. Right of Federal employees to petition Congress (a) Adverse action for violation of right To petition Congress Section 7211 of title 5, United States Code, is amended— (1) by striking The right of and inserting (a) In general .—The right of ; and (2) by adding at the end the following new subsection: (b) Adverse action An employee who interferes with or denies a right protected under subsection (a) shall be subject to any adverse action described in paragraphs (1) through (5) of section 7512, in accordance with the procedure described in section 7513 and any other applicable procedure. . (b) Electronic notification of right of employees of Indian Health Service (1) In general The Secretary of Health and Human Services (referred to in this subsection as the Secretary ), acting through the Director of the Indian Health Service, shall, in accordance with paragraphs (2) through (6), provide to each employee of the Indian Health Service, and electronically post, a memorandum providing notice of the right to petition Congress under section 7211 of title 5, United States Code. (2) Contents The memorandum described in paragraph (1) shall include the following statement: It is a violation of section 7211 of title 5, United States Code, for any Federal agency or employee to require a Federal employee to seek approval, guidance, or any other form of input prior to contacting Congress with information, even if that information is in relation to the job responsibilities of the employee. A Federal employee found to have interfered with or denied the right of another Federal employee under such section shall be subject to an adverse action described in paragraphs (1) through (5) of section 7512 of title 5, United States Code, including a suspension for more than 14 days without pay. . (3) Submission Not later than 30 days after the date of enactment of this Act, the Secretary shall submit the memorandum described in paragraph (1) to the Inspector General of the Department of Health and Human Services (referred to in this subsection as the Inspector General ) for approval. (4) Approval or disapproval Not later than 30 days after the submission of the memorandum under paragraph (3), or a revised memorandum under paragraph (6), the Inspector General shall approve or disapprove the memorandum or revised memorandum, as the case may be. (5) Notice In the case of an approval under paragraph (4), not later than 30 days after such approval, the Secretary shall— (A) provide to each employee of the Indian Health Service an electronic copy of the approved memorandum; and (B) post such memorandum in a clear and conspicuous place on the website of the Indian Health Service for a period not less than 120 days. (6) Revised memorandum In the case of a disapproval under paragraph (4), not later than 15 days after such disapproval, the Secretary shall submit a revised memorandum to the Inspector General for approval under paragraph (4). 203. Fiscal accountability Title VI of the Indian Health Care Improvement Act ( 25 U.S.C. 1661 et seq.), as amended by sections 105, 106, and 201, is further amended by adding at the end the following: 609. Fiscal accountability (a) Management of funds (1) In general If the Secretary fails to submit the professional housing plan under section 301(a) of the Restoring Accountability in the Indian Health Service Act of 2018 or the staffing plan under section 301(b) of that Act, the Secretary may not receive, obligate, transfer, or expend any amounts for a salary increase or bonus of an individual described in paragraph (2) until the professional housing plan or staffing plan, as the case may be, is submitted. (2) Individual described An individual described in this paragraph is an individual employed in a position in the Service that is a position— (A) described under sections 5312 through 5316 of title 5, United States Code; (B) placed in level IV or V of the Executive Schedule under section 5317 of title 5, United States Code; (C) as a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5, United States Code; or (D) under section 213.3301 or 213.3302 of title 5, Code of Federal Regulations. (b) Prioritization of patient care (1) In general Notwithstanding any other provision of law, the Secretary shall use amounts available to the Indian Health Service that are not obligated or expended, including base budget funding and third party collections, during the fiscal year for which the amounts are made available, and that remain available, only to support patient care by using such funds for the costs of— (A) essential medical equipment; (B) purchased or referred care; or (C) staffing. (2) Special rule In using amounts under paragraph (1), the Secretary shall ensure that, in any case where the amounts were originally made available for a particular Service unit, such amounts are used to benefit Indians served by that Service unit. (3) Restrictions The Secretary may not use amounts described in paragraph (1)— (A) to remodel or interior decorate any Area office; or (B) to increase the rate of pay of any employee of an Area office. (c) Spending reports Not later than 90 days after the end of each quarter of a fiscal year, the Secretary shall submit a report describing the authorizations, expenditures, outlays, transfers, reprogramming, and obligations of each level of the Service, including the headquarters, each Area office, each Service unit, and each health clinic or facility, to— (1) each Indian Tribe; (2) in the Senate— (A) the Committee on Indian Affairs; (B) the Committee on Health, Education, Labor, and Pensions; (C) the Committee on Appropriations; and (D) the Committee on the Budget; and (3) in the House of Representatives— (A) the Committee on Natural Resources; (B) the Committee on Energy and Commerce; (C) the Committee on Appropriations; and (D) the Committee on the Budget. (d) Status reports (1) In general Subject to paragraph (2), not later than 180 days after the end of each fiscal year, the Secretary shall provide to each entity described in paragraphs (1) through (3) of subsection (c) a report describing the safety, billing, certification, credential, and compliance statuses of each facility managed, operated, or otherwise supported by the Service. (2) Updates With respect to any change of a status described in paragraph (1), the Secretary shall immediately provide to each entity described in paragraphs (1) through (3) of subsection (c) an update describing such change. (e) Rule of construction Nothing in this section may be construed— (1) to negatively impact the right of an Indian Tribe to enter into a compact or contract under the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304 et seq.); and (2) to apply to such a compact or contract unless expressly agreed to by the Indian Tribe. . III Reports 301. Definitions In this title: (1) Secretary The term Secretary means the Secretary of Health and Human Services. (2) Service The term Service means the Indian Health Service. (3) Service unit The term Service unit has the meaning given the term in section 4 of the Indian Health Care Improvement Act ( 25 U.S.C. 1603 ). 302. Reports by the Secretary of Health and Human Services (a) IHS Professional housing plan Not later than 1 year after the date the Government Accountability Office releases their ongoing report about Indian Health Service housing needs, the Secretary shall develop, make publicly available, and submit to Congress and the Comptroller General of the United States a written plan to address the professional housing needs of employees of the Service that comports with the practices and recommendations of the Government Accountability Office relating to professional housing. (b) Plan relating to IHS staffing needs Not later than 1 year after the date the Government Accountability Office releases their ongoing report about Indian Health Service housing needs, the Secretary shall develop, make publicly available, and submit to Congress and the Comptroller General of the United States a written plan to address staffing needs in the Service that comports with the practices of the Government Accountability Office relating to workforce planning. (c) Indian Health Care Improvement Act report Not later than 1 year after the date of enactment of this Act, and each year thereafter for a period of 5 years, the Secretary shall develop, make publicly available, and submit to Congress a report on the data submitted under section 412(b) of the Indian Health Care Improvement Act, as amended by section 107. (d) Quality of Care and Staffing report Not later than 1 year after the date of enactment of this Act, and each year thereafter, the Secretary shall develop and submit to Congress a report on the data obtained under section 108, with an emphasis on quality of care and access to care. 303. Reports by the Comptroller General (a) IHS Housing needs report (1) In general Not later than 5 years after the date on which the Comptroller General of the United States receives the professional housing plan under section 302(a), the Comptroller General shall develop and submit to Congress a report. (2) Contents The report required under paragraph (1) shall include the following: (A) An evaluation of any existing, as of the date of the report, assessments and projections for the professional housing needs of employees of the Service, including discussion and conclusion as to whether existing assessments and projections accurately reflect the professional housing needs of employees of the Service. (B) An assessment of the professional housing needs of employees of the Service for each Service area (as defined in section 4 of the Indian Health Care Improvement Act ( 25 U.S.C. 1603 )). (C) An assessment of the professional housing plan developed by the Secretary under section 302(a). (b) IHS staffing needs report (1) In general Not later than 5 years after the date on which the Comptroller General receives the report under section 302(b), the Comptroller General shall prepare and submit to Congress a report on the staffing needs of the Service. (2) Contents The report required under paragraph (1) shall include the following: (A) A description of the number and type of full-time positions needed at each facility of the Service and the amount of funds necessary to maintain such positions. (B) An explanation of the various methodologies that the Service utilizes and has previously utilized to determine the number and type of full-time positions needed at federally managed Service units. (C) An assessment of the use of independent contractors, including the number of independent contractors hired to fill vacant full-time positions and amounts spent on independent contractors who provide health care services. (D) An assessment of the staffing plan developed by the Secretary under section 302(b). (c) Whistleblower protections report (1) In general Not later than 1 year after the date of enactment of this Act, the Comptroller General shall develop and submit to Congress a report on the efficacy of existing protections for whistleblowers in the Service. (2) Contents The report required under paragraph (1) shall include the following: (A) A discussion and conclusion as to whether the Service has taken proper steps to prevent retaliation against whistleblowers. (B) If applicable, any recommendations for changes to the policy of the Service with respect to whistleblowers. (C) A discussion and conclusion as to whether the official email accounts of employees of the Service are appropriately monitored. 304. Inspector General reports (a) Patient care reports (1) In general Not later than 2 years after the date of enactment of this Act, and not less than every 3 years thereafter, the Inspector General of the Department of Health and Human Services shall develop and submit to Congress and the Service a report on patient harm events occurring in Service units and deferrals and denials of care of patients of the Service. (2) Contents The report required under paragraph (1) shall include the following: (A) An evaluation of the number and kind of events that contribute to patient deaths in a Service unit and recommendations regarding reducing the number of patient deaths. (B) An evaluation of the Service’s tracking and reporting of, and response to, patient harm events and recommendations regarding how to improve such tracking, reporting, and response. (C) The effects of deferrals and denials of care on patients of the Service, including patient outcomes, and recommendations regarding how to reduce deferrals and denials of care. (b) Reporting systems audit Not later than 2 years after the date of enactment of this Act, the Inspector General shall— (1) conduct an audit of reporting systems of the Service, as of the date of enactment of this Act; and (2) provide to the Service recommendations and technical assistance regarding implementation of improved reporting systems, procedures, standards, and protocols. 305. Transparency in CMS surveys Section 1880 of the Social Security Act ( 42 U.S.C. 1395qq ) is amended by adding at the end the following: (g) (1) Not less frequently than once every 2 years, the Administrator of the Centers for Medicare & Medicaid Services shall conduct surveys of participating Indian Health Service facilities to assess the compliance of each hospital or skilled nursing facility of the Indian Health Service with— (A) section 1867; and (B) conditions of participation in the program under this title. (2) Each survey completed under this subsection shall be posted on the Internet website of the Centers for Medicare & Medicaid Services. Such posting shall comply with the Federal regulations concerning the privacy of individually identifiable health information promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996. . IV Technical amendments 401. Technical amendments The Indian Health Care Improvement Act ( 25 U.S.C. 1601 et seq.) is amended— (1) by striking contract health service each place such term appears (regardless of casing and typeface and including in the headings) and inserting purchased/referred care (with appropriate casing and typeface); and (2) by striking contract health services each place such term appears (regardless of casing and typeface and including in the headings) and inserting purchased/referred care (with appropriate casing and typeface).

December 28, 2018 Committees on Energy and Commerce , Ways and Means , and Oversight and Government Reform discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed