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Self-Governance Negotiation Process
Jessica Smith-Kaprosy, Policy AnalystOffice of Tribal Self-Governance
Indian Health Service
April 2015
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Introduction to the Negotiation
Process
April 2015
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KEY FEATURES
April 2015
Respects Nation-to-Nation Relationship CollaborativeTribally-driven
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WHAT ARE NEGOTIATIONS?
Outcome: Compact and Funding Agreement
April 2015
1. Planning2. Pre-Negotiations 3. Negotiations 4. Processing & Payment/Post-Negotiations
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COMPACT AND FUNDING AGREEMENT?
• Both documents are necessary to participate in the IHS Tribal Self-Governance Program (TSGP)• Compact: Sets forth the general terms of the
nation-to-nation relationship between the Tribe and HHS• Funding Agreement: • Abbreviated FA or MYFA (multi-year FA)• Describes the length of the agreement• Identifies Programs, Services, Functions or Activities
(PSFAs), or portions thereof, that the Tribe will assume and funding associated with those PSFAs.
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COMPACT AND FUNDING AGREEMENT?
• Generally, each Tribe/Tribal Organization will have one compact and one funding agreement. • In some cases (Alaska and Navajo Areas) there
may be one compact with multiple cosigners, each with their own FA.
• Read together as the expression of the agreement between the Federal government and the Tribe.• There is no model compact or FA. Each is
drafted to fit the Tribe’s unique situation.
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WHO NEGOTIATES FOR THE GOVERNMENT?• IHS negotiation teams are lead by an Agency Lead
Negotiator (ALN). • The only person with authority to negotiate compacts
and FAs on behalf of the IHS Director.
• Supported by:• OTSG Program Analyst and Financial Analyst • Member of the Office of the General Counsel• IHS subject matter experts, as needed
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WHO NEGOTIATES FOR THE TRIBE/TO?
Who will be your lead negotiator?
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Examples: Tribal Chair, member of Tribal Council, Health Director/CEO
Who might be on your negotiation team?
Examples: In-house or outside legal counsel, finance, program directors, consultants, others?
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Negotiation Process Stages
April 2015
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4 STAGES OF THE NEGOTIATION PROCESS
1. Planning• Eligibility and mandatory planning phase for new Tribes• Program assessment and possible additional assumptions
2. Pre-Negotiation• Discuss, PSFAs, financial tables, and draft documents• Preparation of draft compact and FA
3. Final Negotiations• Resolution of remaining issues from pre-negotiation stage• Agreement on final documents
4. Post-Negotiations• Document processing & payment
April 2015
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PLANNING STAGE
Usually, this stage is the longest and most work.Title V of the ISDEAA requires completion of a planning phase to the satisfaction of the Tribe. Must Include:• legal and budgetary research• internal Tribal government planning and
organization preparation relating to the administration of health care programs.
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PRE-NEGOTIATIONSTAGE
• Drafting or editing the compact & FA• Active discussion by negotiation teams:
1. Issues identified during planning 2. Draft compact, FA, and funding tables
• “Pre-negotiations”: a meeting, in-person or by phone, with both negotiation teams meet to discuss any questions or concerns regarding the documents and tables prior to final negotiations.
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PRE-NEGOTIATIONSTAGE
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What does OTSG look for when reviewing draft documents?
Mandatory provisions Within IHS authority Are the PSFAs/associated funds
and other obligations clear? Does it make sense as a whole? Outdated language Level of detail— the FA is not a
scope of work Extra Title I provisions
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FINAL NEGOTIATIONS
• Negotiation teams work together to reach agreement on the final documents. • OTSG recommends in-person negotiations for
Tribes new to the program. • Once agreement on the final documents has
been reached, two final copies are signed by the Tribe and provided to the ALN.
April 2015
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POST NEGOTIATION
• The Tribe/TO signs the final documents and returns them to the ALN.• The ALN then:• Reviews the documents• Packages them with the supporting documents, • Submits package to HQ for processing and signature by
the IHS Director or a designee
• Once the compact and FA have been signed by both parties, they become legally binding and enforceable.
April 2015
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TSGP DOCUMENT PROCESSING
ALN packages documents and attachments and sends to OTSG.
OTSG reviews the package for completeness.
IHS-HQ Office of Finance and Accounting (OFA) validates the
amounts and certifies availability of HQ Tribal Shares.
OTSG submits the final package to the Office of the
Director for signature.
IHS Director (or designee) reviews and signs the
agreement if there are no outstanding issues.
Payment process begins
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OTSG sends a copy of the agreement to the Tribe.
OTSG retains the case file in compliance with Federal
recordkeeping procedures.
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TSGP PAYMENT PROCESS
April 2015
A signed compact and FA must be in place for the payment process to begin.
Congress passes an appropriations act or continuing resolution.
IHS-HQ OFA allots the funding to Areas.
OTSG prepares & approves payment docs in accordance with the most recent FA. Payment signed by OTSG financial analyst, HQ OFA, & OTSG Director (approved at Area for AK).
OMB apportions the appropriation into quarterly spending limits for the IHS.
Areas confirm recurring base amounts paid to TSGP Tribes.
OTSG sends signed payment document to Area Finance Office.
OTSG posts payment docs to OTSG database and
sends a copy to the Tribe.
Area finance obligates the funds and transmits payment to US Dept. of the Treasury.
US Dept. of the Treasury sends the funds to the
Tribe. Tribe receives funds.
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Tips and Best Practices
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3 Negotiation Stumbling Blocks
•Timing
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•Communication
•Version control and document flow
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RESOURCES
• Office of Tribal Self-Governance: www.ihs.gov/selfgovernance• Self-Governance Communication and Education Tribal
Consortium: www.tribalselfgov.org• Tribal Self-Governance Advisory Committee • Welcome to attend quarterly meetings. • Area representatives are excellent resources.
• Annual Tribal Self-Governance Consultation Conference
April 2015
