25 U.S.C. § 1631

Consultation; closure of facilities; reports

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(a) Consultation; standards for accreditationPrior to the expenditure of, or the making of any firm commitment to expend, any funds appropriated for the planning, design, construction, or renovation of facilities pursuant to section 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 concerning size, location, type, and other characteristics of any facility on which such expenditure is to be made, and(2) ensure, whenever practicable, that such facility meets the standards of the Joint Commission on Accreditation of Health Care Organizations 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 outpatient 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 impact 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 closure;(F) the level of utilization of such hospital or facility by all eligible Indians; and(G) the distance between such hospital or facility and the nearest operating Service hospital.(2) Paragraph (1) shall not apply to any temporary closure of a facility or of any portion of a facility if such closure is necessary for medical, environmental, or safety reasons.(c) Health care facility priority system(1) In general(A) Priority systemThe 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 organizations;(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 required in paragraph (2)(B)(v); and(III) may include such health care facilities, 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 construction projects by the Service, Indian tribes, and tribal organizations for consideration under the priority system at least once every 3 years, or more frequently as the Secretary determines to be appropriate.(B) Needs of facilities under ISDEAA agreements

The Secretary shall ensure that the planning, design, construction, renovation, and expansion needs of Service and non-Service facilities operated under contracts or compacts in accordance with the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 11 See References in Text note below. are fully and equitably integrated into the health care facility priority system.

For purposes of this subsection, the Secretary, in evaluating the needs of facilities operated under a contract or compact under the Indian Self-Determination and Education 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 protectedThe 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 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 quarters developments; or(IV) 1 of the 10 top-priority Youth Regional Treatment Centers;(ii) had completed both Phase I and Phase II of the construction priority system in effect on March 23, 2010; or(iii) is not included in clause (i) or (ii) and is selected, as determined by the Secretary—(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) DefinitionsIn this subparagraph:(I) Facilities Appropriation Advisory BoardThe term “Facilities Appropriation Advisory Board” means the advisory board, comprised of 12 members representing Indian tribes and 2 members representing the Service, established at the discretion of the Director—(aa) to provide advice and recommendations for policies and procedures of the programs funded pursuant to facilities appropriations; and(bb) to address other facilities issues.(II) Facilities Needs Assessment WorkgroupThe term “Facilities Needs Assessment Workgroup” means the workgroup established at the discretion of the Director—(aa) to review the health care facilities 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 Senate and the Committee on Natural Resources of the House of Representatives a report that describes the comprehensive, national, ranked list of all health care facilities needs for the Service, Indian tribes, and tribal organizations (including inpatient health care facilities, outpatient health care facilities, specialized 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 facilities) developed by the Service, Indian tribes, and tribal organizations for the Facilities Needs Assessment Workgroup and the Facilities Appropriation Advisory Board.

(II) InclusionsThe 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 appropriate.(iii) Updates of reportBeginning in calendar year 2011, the Secretary 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 subparagraph (B) for submission to Congress under section 1671 of this title.(B) Annual reportsThe Secretary shall submit to the President, 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 facility priority system of the Service established 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;(III) the 10 top-priority specialized health care facilities (such as long-term care and alcohol and drug abuse treatment); 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 reportsIn preparing the report required under paragraph (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 Indian tribes and tribal organizations for health care facilities (including staff quarters), including needs for renovation and expansion of existing facilities.(d) Review of methodology used for health facilities construction priority system(1) In generalNot later than 1 year after the establishment of the priority system under subsection (c)(1)(A), the Comptroller General of the United States shall prepare and finalize a report reviewing the methodologies applied, and the processes followed, by the Service in making each assessment of needs for the list under subsection (c)(2)(A)(ii) and developing the priority system under subsection (c)(1), including a review of—(A) the recommendations of the Facilities Appropriation Advisory Board and the Facilities 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 CongressThe Comptroller General of the United States shall submit the report under paragraph (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 Representatives; 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-Determination 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 approachesThe Secretary shall consult and cooperate with Indian tribes and tribal organizations, and confer with urban Indian organizations, in developing 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 construction funding could be devoted to all Service areas;(2) approaches provided for in other provisions of this subchapter; and(3) other approaches, as the Secretary determines to be appropriate.(h) 22 So in original. Subsec. (g) is set out below. 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-Determination Act [25 U.S.C. 5321].

(g) 33 So in original. Subsec. (h) is set out above. Priority of certain projects protectedThe 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 taking place after that date if the project—(1) was identified in the fiscal year 2008 Service 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) 44 So in original. Probably should be “paragraph (1) or (2)”. 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 NotesReferences in Text

The Indian Self-Determination and Education Assistance 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 reclassification 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 editorial 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.

Codification

Amendment by Pub. L. 111–148 is based on sections 141 and 142 of title I of S. 1790, One Hundred Eleventh Congress, 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), redesignated former subsec. (d) as (h), added subsec. (g) at end, and struck out former subsec. (c) which related to annual report on health facility priority system.

1992—Subsec. (a)(2). Pub. L. 102–573, § 301(1), substituted “Health Care Organizations” for “Hospitals”.

Subsec. (b)(1). Pub. L. 102–573, § 301(2), struck out “other” before “outpatient health care facility” in introductory provisions and added subpars. (F) and (G).

Subsec. (c). Pub. L. 102–573, § 301(3), redesignated subsec. (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 information 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 introductory provisions generally. Prior to amendment, introductory 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), redesignated 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 submitted by no later than the date that is 180 days after November 23, 1988, and, beginning in 1990, each subsequent 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), redesignated 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, substituting subsecs. (a) to (e) relating to consultation, closure of facilities, and reports for former subsecs. (a) to (c) relating to construction and renovation of Service facilities.

Notes of Decisions

Cited in 7 cases, 1994–2019 · leading case: Yankton Sioux Tribe v. United States Dep't of Health & Human Servs., 496 F. Supp. 2d 1044 (D.S.D. 2007).

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Yankton Sioux Tribe v. United States Dep't of Health & Human Servs., 496 F. Supp. 2d 1044 (D.S.D. 2007). · cites it 18× “Following a court trial in Yankton I, the Court granted declaratory relief, a writ of mandamus and a permanent injunction, providing that: (1) plaintiffs were granted a declaratory judgment that the Defendants did not satisfy the requirements of 25 U.S.C. § 1631 (b)(1) before…”

Yankton Sioux Tribe v. United States Dep't of Health & Human Servs., 533 F.3d 634 (8th Cir. 2008). · cites it 3× “Following a bench trial the district court granted the Tribe a declaratory judgment that the defendants had not satisfied the requirements of 25 U.S.C. § 1631 (b)(1) when making the decision to close the Wagner emergency room.”

Yankton Sioux Tribe v. US DEPT. OF HLTH. & HUM., 869 F. Supp. 760 (D.S.D. 1994). · cites it 6× “Effective November 23, 1988, Congress enacted Public Law 100-713, Indian Health Care Amendments of 1988, which substantially altered and added to the provisions of 25 U.S.C. § 1631 . In addition to its previous direction to consult with Indian tribes regarding planned…”

Tribe v. United States Dep't of Health, 869 F. Supp. 760 (D.S.D. 1994). · cites it 6× “Effective November 23,1988, Congress enacted Public Law 100-713, Indian Health Care Amendments of 1988, which substantially altered and added to the provisions of 25 U.S.C. § 1631 . In addition to its previous direction to consult with Indian tribes regarding planned…”

United Keetoowah Band of Cherokee Indians v. Kempthorne, 630 F. Supp. 2d 1296 (E.D. Okla. 2009). “3 (b)(6) and 25 U.S.C. § 1631 has deprived the Tribe from fully participating in the management, planning, and administration of programs impacting its tribal members, in direct contravention to the stated purpose of the ISDEAA.”

Yankton Sioux Tribe v. U.S. Dep't of HHS (8th Cir. 2008). · cites it 3× “Following a bench trial the district court granted the Tribe a declaratory judgment that the defendants had not satisfied the requirements of 25 U.S.C. § 1631 (b)(1) when making the decision to close the Wagner emergency room.”

Rosebud Sioux Tribe v. United States of Am. Dep't of Health & Human Servs. (D.S.D. 2019). “Counts I and II of the Tribe’s Complaint are based on a provision of the Indian Health Care Improvement Act (THCIA), 25 U.S.C. § 1631 (b)(1), which requires a one-year notice to Congress before any IHS hospital, facility, or portion of such can be closed, in order to evaluate…”

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