25 U.S.C. § 1631 — Consultation; closure of facilities; reports

Page 287 TITLE 25—INDIANS § 1631 (Pub. L. 94–437, title II, § 226, as added Pub. L. 111–148, title X, § 10221(a), Mar. 23, 2010, 124 Stat. 935.) Editorial Notes CODIFICATION Section 226 of Pub. L. 94–437 is based on section 137 of title I of S. 1790, One Hundred Eleventh Congress, as re- ported by the Committee on Indian Affairs of the Sen- ate in Dec. 2009, which was enacted into law by section 10221(a) of Pub. L. 111–148. § 1622. Transferred Editorial Notes CODIFICATION Section, Pub. L. 94–437, title IV, § 404, as added Pub. L. 96–537, § 6, Dec. 17, 1980, 94 Stat. 3176, which related to grants to and contracts with tribal organizations, was transferred to section 1644 of this title. § 1623. Special rules relating to Indians (a) No Cost-sharing for Indians with income at or below 300 percent of poverty enrolled in cov- erage through a State Exchange For provisions prohibiting cost sharing for In- dians enrolled in any qualified health plan in the individual market through an Exchange, see section 18071(d) of title 42. (b) Payer of last resort Health programs operated by the Indian Health Service, Indian tribes, tribal organiza- tions, and Urban Indian organizations (as those terms are defined in section 1603 of this title) shall be the payer of last resort for services pro- vided by such Service, tribes, or organizations to individuals eligible for services through such programs, notwithstanding any Federal, State, or local law to the contrary. (Pub. L. 111–148, title II, § 2901(a), (b), Mar. 23, 2010, 124 Stat. 333.) Editorial Notes CODIFICATION Section is comprised of subsecs. (a) and (b) of section 2901 of Pub. L. 111–148. Subsections (c) and (d) of section 2901 amended sections 1396a and 1320b–9, respectively, of Title 42, The Public Health and Welfare. Section was enacted as part of the Patient Protection and Affordable Care Act, and not as part of the Indian Health Care Improvement Act which comprises this chapter. SUBCHAPTER III—HEALTH FACILITIES § 1631. Consultation; closure of facilities; reports (a) Consultation; standards for accreditation Prior to the expenditure of, or the making of any firm commitment to expend, any funds ap- propriated for the planning, design, construc- tion, or renovation of facilities pursuant to sec- tion 13 of this title, the Secretary, acting through the Service, shall— (1) consult with any Indian tribe that would be significantly affected by such expenditure for the purpose of determining and, whenever practicable, honoring tribal preferences con- cerning size, location, type, and other charac- teristics of any facility on which such expendi- ture is to be made, and (2) ensure, whenever practicable, that such facility meets the standards of the Joint Com- mission on Accreditation of Health Care Orga- nizations by not later than 1 year after the date on which the construction or renovation of such facility is completed. (b) Closure; report on proposed closure (1) Notwithstanding any provision of law other than this subsection, no Service hospital or out- patient health care facility of the Service, or any portion of such a hospital or facility, may be closed if the Secretary has not submitted to the Congress at least 1 year prior to the date such hospital or facility (or portion thereof) is proposed to be closed an evaluation of the im- pact of such proposed closure which specifies, in addition to other considerations— (A) the accessibility of alternative health care resources for the population served by such hospital or facility; (B) the cost effectiveness of such closure; (C) the quality of health care to be provided to the population served by such hospital or facility after such closure; (D) the availability of contract health care funds to maintain existing levels of service; (E) the views of the Indian tribes served by such hospital or facility concerning such clo- sure; (F) the level of utilization of such hospital or facility by all eligible Indians; and (G) the distance between such hospital or fa- cility and the nearest operating Service hos- pital. (2) Paragraph (1) shall not apply to any tem- porary closure of a facility or of any portion of a facility if such closure is necessary for med- ical, environmental, or safety reasons. (c) Health care facility priority system (1) In general (A) Priority system The Secretary, acting through the Service, shall maintain a health care facility priority system, which— (i) shall be developed in consultation with Indian tribes and tribal organiza- tions; (ii) shall give Indian tribes’ needs the highest priority; (iii)(I) may include the lists required in paragraph (2)(B)(ii); and (II) shall include the methodology re- quired in paragraph (2)(B)(v); and (III) may include such health care facili- ties, and such renovation or expansion needs of any health care facility, as the Service may identify; and (iv) shall provide an opportunity for the nomination of planning, design, and con- struction projects by the Service, Indian tribes, and tribal organizations for consid- eration under the priority system at least once every 3 years, or more frequently as the Secretary determines to be appro- priate. Page 288 TITLE 25—INDIANS § 1631 1 See References in Text note below. (B) Needs of facilities under ISDEAA agree- ments The Secretary shall ensure that the plan- ning, design, construction, renovation, and expansion needs of Service and non-Service facilities operated under contracts or com- pacts in accordance with the Indian Self-De- termination and Education Assistance Act (25 U.S.C. 450 et seq.) 1 are fully and equi- tably integrated into the health care facility priority system. (C) Criteria for evaluating needs For purposes of this subsection, the Sec- retary, in evaluating the needs of facilities operated under a contract or compact under the Indian Self-Determination and Edu- cation Assistance Act (25 U.S.C. 450 et seq.),1 shall use the criteria used by the Secretary in evaluating the needs of facilities operated directly by the Service. (D) Priority of certain projects protected The priority of any project established under the construction priority system in ef- fect on March 23, 2010, shall not be affected by any change in the construction priority system taking place after that date if the project— (i) was identified in the fiscal year 2008 Service budget justification as— (I) 1 of the 10 top-priority inpatient projects; (II) 1 of the 10 top-priority outpatient projects; (III) 1 of the 10 top-priority staff quar- ters developments; or (IV) 1 of the 10 top-priority Youth Re- gional Treatment Centers; (ii) had completed both Phase I and Phase II of the construction priority sys- tem in effect on March 23, 2010; or (iii) is not included in clause (i) or (ii) and is selected, as determined by the Sec- retary— (I) on the initiative of the Secretary; or (II) pursuant to a request of an Indian tribe or tribal organization. (2) Report; contents (A) Initial comprehensive report (i) Definitions In this subparagraph: (I) Facilities Appropriation Advisory Board The term ‘‘Facilities Appropriation Advisory Board’’ means the advisory board, comprised of 12 members rep- resenting Indian tribes and 2 members representing the Service, established at the discretion of the Director— (aa) to provide advice and rec- ommendations for policies and proce- dures of the programs funded pursuant to facilities appropriations; and (bb) to address other facilities issues. (II) Facilities Needs Assessment Workgroup The term ‘‘Facilities Needs Assess- ment Workgroup’’ means the workgroup established at the discretion of the Di- rector— (aa) to review the health care facili- ties construction priority system; and (bb) to make recommendations to the Facilities Appropriation Advisory Board for revising the priority system. (ii) Initial report (I) In general Not later than 1 year after March 23, 2010, the Secretary shall submit to the Committee on Indian Affairs of the Sen- ate and the Committee on Natural Re- sources of the House of Representatives a report that describes the comprehen- sive, national, ranked list of all health care facilities needs for the Service, In- dian tribes, and tribal organizations (in- cluding inpatient health care facilities, outpatient health care facilities, special- ized health care facilities (such as for long-term care and alcohol and drug abuse treatment), wellness centers, and staff quarters, and the renovation and expansion needs, if any, of such facili- ties) developed by the Service, Indian tribes, and tribal organizations for the Facilities Needs Assessment Workgroup and the Facilities Appropriation Advi- sory Board. (II) Inclusions The initial report shall include— (aa) the methodology and criteria used by the Service in determining the needs and establishing the ranking of the facilities needs; and (bb) such other information as the Secretary determines to be appro- priate. (iii) Updates of report Beginning in calendar year 2011, the Sec- retary shall— (I) update the report under clause (ii) not less frequently that once every 5 years; and (II) include the updated report in the appropriate annual report under sub- paragraph (B) for submission to Congress under section 1671 of this title. (B) Annual reports The Secretary shall submit to the Presi- dent, for inclusion in the report required to be transmitted to Congress under section 1671 of this title, a report which sets forth the following: (i) A description of the health care facil- ity priority system of the Service estab- lished under paragraph (1). (ii) Health care facilities lists, which may include— (I) the 10 top-priority inpatient health care facilities; (II) the 10 top-priority outpatient health care facilities; Page 289 TITLE 25—INDIANS § 1631 2 So in original. Subsec. (g) is set out below. 3 So in original. Subsec. (h) is set out above. 4 So in original. Probably should be ‘‘paragraph (1) or (2)’’. (III) the 10 top-priority specialized health care facilities (such as long-term care and alcohol and drug abuse treat- ment); and (IV) the 10 top-priority staff quarters developments associated with health care facilities. (iii) The justification for such order of priority. (iv) The projected cost of such projects. (v) The methodology adopted by the Service in establishing priorities under its health care facility priority system. (3) Requirements for preparation of reports In preparing the report required under para- graph (2), the Secretary shall— (A) consult with and obtain information on all health care facilities needs from Indian tribes and tribal organizations; and (B) review the total unmet needs of all In- dian tribes and tribal organizations for health care facilities (including staff quar- ters), including needs for renovation and ex- pansion of existing facilities. (d) Review of methodology used for health facili- ties construction priority system (1) In general Not later than 1 year after the establish- ment of the priority system under subsection (c)(1)(A), the Comptroller General of the United States shall prepare and finalize a re- port reviewing the methodologies applied, and the processes followed, by the Service in mak- ing each assessment of needs for the list under subsection (c)(2)(A)(ii) and developing the pri- ority system under subsection (c)(1), including a review of— (A) the recommendations of the Facilities Appropriation Advisory Board and the Fa- cilities Needs Assessment Workgroup (as those terms are defined in subsection (c)(2)(A)(i)); and (B) the relevant criteria used in ranking or prioritizing facilities other than hospitals or clinics. (2) Submission to Congress The Comptroller General of the United States shall submit the report under para- graph (1) to— (A) the Committees on Indian Affairs and Appropriations of the Senate; (B) the Committees on Natural Resources and Appropriations of the House of Rep- resentatives; and (C) the Secretary. (e) Funding condition All funds appropriated under section 13 of this title, for the planning, design, construction, or renovation of health facilities for the benefit of 1 or more Indian Tribes shall be subject to the provisions of section 102 of the Indian Self-De- termination and Education Assistance Act (25 U.S.C. 450f) 1 or sections 504 and 505 of that Act (25 U.S.C. 458aaa–3, 458aaa–4).1 (f) Development of innovative approaches The Secretary shall consult and cooperate with Indian tribes and tribal organizations, and confer with urban Indian organizations, in de- veloping innovative approaches to address all or part of the total unmet need for construction of health facilities, that may include— (1) the establishment of an area distribution fund in which a portion of health facility con- struction funding could be devoted to all Serv- ice areas; (2) approaches provided for in other provi- sions of this subchapter; and (3) other approaches, as the Secretary deter- mines to be appropriate. (h) 2 Funds appropriated subject to section 5321 of this title All funds appropriated under section 13 of this title for the planning, design, construction, or renovation of health facilities for the benefit of an Indian tribe or tribes shall be subject to the provisions of section 102 of the Indian Self-De- termination Act [25 U.S.C. 5321]. (g) 3 Priority of certain projects protected The priority of any project established under the construction priority system in effect on March 23, 2010, shall not be affected by any change in the construction priority system tak- ing place after that date if the project— (1) was identified in the fiscal year 2008 Serv- ice budget justification as— (A) 1 of the 10 top-priority inpatient projects; (B) 1 of the 10 top-priority outpatient projects; (C) 1 of the 10 top-priority staff quarters developments; or (D) 1 of the 10 top-priority Youth Regional Treatment Centers; (2) had completed both Phase I and Phase II of the construction priority system in effect on March 23, 2010; or (3) is not included in clause (i) or (ii) 4 and is selected, as determined by the Secretary— (A) on the initiative of the Secretary; or (B) pursuant to a request of an Indian tribe or tribal organization. (Pub. L. 94–437, title III, § 301, Sept. 30, 1976, 90 Stat. 1406; Pub. L. 100–713, title III, § 301, Nov. 23, 1988, 102 Stat. 4812; Pub. L. 102–573, title III, § 301, title IX, § 902(4)(B), Oct. 29, 1992, 106 Stat. 4560, 4591; Pub. L. 111–148, title X, § 10221(a), Mar. 23, 2010, 124 Stat. 935.) Editorial Notes REFERENCES IN TEXT The Indian Self-Determination and Education Assist- ance Act, referred to in subsecs. (c)(1)(B), (C), (e), and (h), is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which was classified principally to subchapter II (§ 450 et seq.) of chapter 14 of this title prior to editorial reclassifica- tion as chapter 46 (§ 5301 et seq.) of this title. Sections 102, 504, and 505 of the Act were classified to sections 450f, 458aaa–3, and 458aaa–4 of this title prior to edi- torial reclassification as sections 5321, 5384, and 5385, respectively, of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. Page 290 TITLE 25—INDIANS § 1632 CODIFICATION Amendment by Pub. L. 111–148 is based on sections 141 and 142 of title I of S. 1790, One Hundred Eleventh Con- gress, as reported by the Committee on Indian Affairs of the Senate in Dec. 2009, which were enacted into law by section 10221(a) of Pub. L. 111–148. AMENDMENTS 2010—Pub. L. 111–148 added subsecs. (c) to (f), redesig- nated former subsec. (d) as (h), added subsec. (g) at end, and struck out former subsec. (c) which related to an- nual report on health facility priority system. 1992—Subsec. (a)(2). Pub. L. 102–573, § 301(1), sub- stituted ‘‘Health Care Organizations’’ for ‘‘Hospitals’’. Subsec. (b)(1). Pub. L. 102–573, § 301(2), struck out ‘‘other’’ before ‘‘outpatient health care facility’’ in in- troductory provisions and added subpars. (F) and (G). Subsec. (c). Pub. L. 102–573, § 301(3), redesignated sub- sec. (d) as (c) and struck out former subsec. (c) which read as follows: ‘‘The President shall include with the budget submitted under section 1105 of title 31, for each of the fiscal years 1990, 1991, and 1992, program informa- tion documents for the construction of 10 Indian health facilities which— ‘‘(1) comply with applicable construction standards, and ‘‘(2) have been approved by the Secretary.’’ Subsec. (c)(1). Pub. L. 102–573, § 301(4), amended intro- ductory provisions generally. Prior to amendment, in- troductory provisions read as follows: ‘‘The Secretary shall submit to the Congress an annual report which sets forth—’’. Subsec. (c)(2) to (5). Pub. L. 102–573, § 301(5), redesig- nated pars. (3) to (5) as (2) to (4), respectively, and struck out former par. (2) which read as follows: ‘‘The first report required under paragraph (1) shall be sub- mitted by no later than the date that is 180 days after November 23, 1988, and, beginning in 1990, each subse- quent annual report shall be submitted by the date that is 60 days after the date on which the President submits the budget to the Congress under section 1105 of title 31.’’ Subsecs. (d), (e). Pub. L. 102–573, §§ 301(3), 902(4)(B), re- designated subsec. (e) as (d) and substituted ‘‘section 102 of the Indian Self-Determination Act’’ for ‘‘sections 102 and 103(b) of the Indian Self-Determination Act’’. Former subsec. (d) redesignated (c). 1988—Pub. L. 100–713 amended section generally, sub- stituting subsecs. (a) to (e) relating to consultation, closure of facilities, and reports for former subsecs. (a) to (c) relating to construction and renovation of Serv- ice facilities. § 1632. Safe water and sanitary waste disposal fa- cilities (a) Congressional findings The Congress hereby finds and declares that— (1) the provision of safe water supply sys- tems and sanitary sewage and solid waste dis- posal systems is primarily a health consider- ation and function; (2) Indian people suffer an inordinately high incidence of disease, injury, and illness di- rectly attributable to the absence or inad- equacy of such systems; (3) the long-term cost to the United States of treating and curing such disease, injury, and illness is substantially greater than the short-term cost of providing such systems and other preventive health measures; (4) many Indian homes and communities still lack safe water supply systems and sani- tary sewage and solid waste disposal systems; and (5) it is in the interest of the United States, and it is the policy of the United States, that all Indian communities and Indian homes, new and existing, be provided with safe and ade- quate water supply systems and sanitary sew- age waste disposal systems as soon as possible. (b) Authority; assistance; transfer of funds (1) In furtherance of the findings and declara- tions made in subsection (a), Congress reaffirms the primary responsibility and authority of the Service to provide the necessary sanitation fa- cilities and services as provided in section 2004a of title 42. (2) The Secretary, acting through the Service, is authorized to provide under section 2004a of title 42— (A) financial and technical assistance to In- dian tribes and communities in the establish- ment, training, and equipping of utility orga- nizations to operate and maintain Indian sani- tation facilities; (B) ongoing technical assistance and train- ing in the management of utility organiza- tions which operate and maintain sanitation facilities; and (C) operation and maintenance assistance for, and emergency repairs to, tribal sanita- tion facilities when necessary to avoid a health hazard or to protect the Federal invest- ment in sanitation facilities. (3) Notwithstanding any other provision of law— (A) the Secretary of Housing and Urban Af- fairs is authorized to transfer funds appro- priated under the Housing and Community De- velopment Act of 1974 (42 U.S.C. 5301, et seq.) to the Secretary of Health and Human Serv- ices, and (B) the Secretary of Health and Human Services is authorized to accept and use such funds for the purpose of providing sanitation facilities and services for Indians under sec- tion 2004a of title 42. (c) 10-year plan Beginning in fiscal year 1990, the Secretary, acting through the Service, shall develop and begin implementation of a 10-year plan to pro- vide safe water supply and sanitation sewage and solid waste disposal facilities to existing In- dian homes and communities and to new and renovated Indian homes. (d) Tribal capability The financial and technical capability of an Indian tribe or community to safely operate and maintain a sanitation facility shall not be a pre- requisite to the provision or construction of sanitation facilities by the Secretary. (e) Amount of assistance (1) The Secretary is authorized to provide fi- nancial assistance to Indian tribes and commu- nities in an amount equal to the Federal share of the costs of operating, managing, and main- taining the facilities provided under the plan de- scribed in subsection (c). (2) For the purposes of paragraph (1), the term ‘‘Federal share’’ means 80 percent of the costs described in paragraph (1). (3) With respect to Indian tribes with fewer than 1,000 enrolled members, the non-Federal portion of the costs of operating, managing, and