U.S. Department of Health and Human Services Indian Health Service Tribal Self-Governance Program

U.S. Department of Health and Human Services

Indian Health ServiceTribal Self-Governance Program

Indian Health Service Office of Tribal Self-Governance

• Primary liaison and advocate for Tribes participating in the IHS Self-Governance Program (TSGP)

• Oversees the implementation of Tribal Self-Governance legislation and authorities within the IHS under Title V of the Indian Self-Determination and Education Assistance Act

Roles of OTSG: Program Analysts

• Administer and Facilitate Self-Governance Negotiation process

• Analyzes and evaluates the PSFAs being considered for Self-Governance.

• Process completed Compacts and Funding Agreements

• Provides support and technical assistance on Self-Governance issues

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Roles of OTSG: Policy Analysts

• Works on a wide range of national issues• Administer OTSG Cooperative Agreements• Maintains and updates OTSG Policy Manuals• Review HHS Agency policy and regulations• Composes responses to Congressional inquires• Prepares briefing materials for OTSG and the

IHS Director• Conducts research and analysis

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Roles of OTSG: Financial Analysts

• Makes the payments to the Self-Governance Tribes at the beginning of the funding cycle (Fiscal, Calendar).

• Makes payments based on amendments to funding tables throughout the year.

• Audit Review for Self-Governance Eligibility

• OTSG Budget Activities6

OTSG Key Activities

• Reviewing eligibility requirements for Tribes to participate in the TSGP and applications for TSGP Planning and Negotiation Cooperative Agreements.

• Participating in nation-to-nation negotiations of ISDEAA Title V Compacts and Funding Agreements and providing oversight of the Agency Lead Negotiators (ALNs).

• Providing resources and technical assistance to Tribes and Tribal Organizations for the implementation of Tribal Self-Governance.

OTSG Key Activities

Coordinating Self-Governance Tribal Delegation Meetings

– Purpose: TDMs are an opportunity for Tribes to meet with the IHS Director or Senior Staff to address health related projects and issues

– Respect the nation-to-nation relationship: Strengthen and improve Tribal Partnerships by the government to government relationship

• Developing and recommending policies, administrative procedures, and guidelines for the IHS TSGP and advising the IHS Director on TSGP actions and activities.

• Collaborating with Tribal and Federal partners to address crosscutting issues and processes

• OTSG provides and partners with SGCE to provide national, regional and individual trainings on the IHS Tribal Self-Governance Program

OTSG Key Activities

Supporting the activities of the IHS Director's Tribal Self-Governance Advisory Committee (TSGAC).

• Provides advice to the IHS Director on issues and concerns pertaining to Self-Governance implementation within the IHS.

• Represents all Self-Governance Tribes.

• Works directly with the Office of Tribal Self-Governance (OTSG) to implement the Self-Governance Act.

• Meets with IHS Director on a quarterly basis.

OTSG Key Activities

Upcoming Meetings

IHS TSGAC Quarterly MeetingsJuly 21-22, 2015October 6-7, 2015Washington, DC

Annual Self-Governance ConferenceApril 24-29, 2016Orlando, FL

Self-Governance TrainingAugust 18-19Uncasville, CT

Annual Self-Governance Strategy SessionSeptember 9-10Catoosa, OK

Online Resources

For further information about the IHS Tribal Self-Governance Program, please visit these websites: IHS Office of Tribal Self-Governance

http://www.ihs.gov/SelfGovernance/

Self-Governance Communication & Education http://www.tribalselfgov.org/

Trust Responsibility

“The Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the United States

with respect to Indian tribes and individual Indians that exists under treaties,

Executive orders, other laws, or court decisions.”

Legislative History

2010 – ACA & IHCIA

2000 - ISDEAA Title V Statute;

2002 - ISDEAA Title V Regulations

Amendments

1994 – Technical Amendments to Title III

301 and 302(a)

1992 - Self-Governance Authority Extended to

IHS (P.L. 102-573)

1991 - IHS Funded to Perform Feasibility

Study (P.L. 102-184)

1988 - Tribal Self-Governance

Demonstration Project (P.L. 100-472)

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Participation in Title I and Title V

Title I:– 227 contracts and annual funding agreements– $900 million transferred through Title I contracts

Title V:– 87 compacts and 112 funding agreements– 350 Tribes participating directly or through tribal

organizations and intertribal consortia– Title V agreements transfer $1.8 billion, approximately

one-third of the IHS appropriation.

– Combined, these agreements transfer approximately $2.5 billion, over half the IHS appropriation.

Lump Sum Funding

Redesign & Rebudget

Recurring Base Funds

Savings, Interest, and

Use of Carryover Funds

Contract Support Costs & Start Up Costs

Access of Federal Sources

of Supply

Federal Torts Claims Act Coverage

Indian Health Care

Improvement Act

Terms of compact and

funding agreement

Examples of Benefits of the Indian Self-Determination and Education Assistance Act

Required Contractual Documents

• Title I: (1) A Contract that includes the model agreement in the ISDEAA and any other provisions agreed to by the parties, and (2) an Annual Funding Agreement (AFA) describing all PSFAs to be performed or administered, the associated funding, and method of payment.

• Title V: (1) A Compact that sets forth the general terms of the nation-to nation relationship between the Tribe or Tribal organization and the Secretary and (2) an annual or multi-year Funding Agreement (FA) that generally identifies the PSFAs to be performed or administered and describes financial terms and the responsibilities.

Common Features of ISDEAA Agreements:

Not Procurement Contracts

• In general, Federal contracting and cooperative agreement laws do not apply to ISDEAA agreements.

• Title I contracts must include the model contract included in the statute, but there are no model agreements in Title V. – Title V does specify a small number of

mandatory terms.


Funds Provided• Tribes can contract for any IHS program, service,

function, or activity (or portion thereof) that is not inherently federal or congressionally restricted (earmarked).

• The funding associated with these PSFAs includes: 1. Funding the Secretary would have otherwise spent, plus

2. “Contract support costs” which are an amount for the reasonable costs for activities which must be carried out by the contractor to ensure “compliance with the terms of the contract and prudent management.”


Funds Provided• Funds may only be reduced in subsequent years

pursuant to congressional action or tribal authorization.

• Tribes may supplement their ISDEAA funds to expand services while retaining the benefits of the ISDEAA.

• Any savings due to Tribal operation may be used to provide additional services or be expended to carry out the ISDEAA agreement in the succeeding fiscal year.

ISDEAA Title V OverviewTopic Discussion

ProgramSummary

Federally recognized Tribes or Tribal organizations compact with the IHS to assume full funding and control over programs, services, functions or activities (PSFAs), or portions thereof, that the IHS would otherwise provide for Indians because of their status as Indians.

25 U.S.C. § 458aaa-3-4(b)

Eligibility Eligibility for Title V requires that the Tribe or Tribal organization (1) successfully complete a planning phase,(2) request participation in Self-Governance by Tribal resolution or other official action by the governing body and (3) demonstrate three fiscal years of financial stability and financial management capability.

25 U.S.C. § 458aaa–2; 42 C.F.R. §§ 137.15-23


Process The Tribe or Tribal organization produces a draft Compact and FA. The IHS Agency Lead Negotiator (ALN) assembles a negotiation team and reviews the draft. Followingpre-negotiation discussions, the ALN negotiates with the Tribe or Tribal organization on behalf of the IHS Director.

See generally 25 U.S.C. § 458aaa et seq.; 42 C.F.R. § 137.1 et seq.

Appeals If issues arise on which the parties cannot reach agreement, the Tribe or Tribal organization may submit a Final Offer to the Agency. Within 45 days, the Agencymust make a determination on the offer in accordance with the ISDEAA.

25 U.S.C. §§ 458aaa-6(b)-(d); 42 C.F.R. §§ 137.131-150

Redesignand FundingReallocation

A Tribe or Tribal organization may redesign or consolidate PSFAs and reallocate or redirect funding without IHS approval in accordance with the ISDEAA.

25 U.S.C. §§ 458aaa-4 & 458aaa-5(e); 42 C.F.R. § 137.185


Oversight: Performance Monitoring

No routine monitoring is required.

MandatoryReporting

Annual single agency audit as required by the Single Agency Audit Act of 1984 and Health Status Reports.

25 U.S.C. §§ 458aaa-5(c) & 458aaa-6(a)(1); 42 C.F.R. §§ 137.165—173 & 137.200—207

Grants Statutorily-mandated grants may be included.

25 U.S.C. § 458aaa-4(b); 42 C.F.R. §§ 137.75-77


Retrocession A Tribe or Tribal organization may choose to partially or fully retrocede to the IHS.

25 U.S.C. § 458aaa-5(f); 42 C.F.R. § 137.185

Reassumptionby the IHS

The IHS may reassume operation of a PSFA and its associated funding if there is a specific finding of imminent endangerment of the public health caused by an act or omission of the Tribe or Tribal organization and arising out of a failure to carry out the Compact or FA or a finding of gross mismanagement of the funds transferred by the Compact and FA.

25 U.S.C. § 458aaa-6(a)(2); 42 C.F.R. §§ 137.255-265

FundingAvailable forPlanning andNegotiationActivities

Planning and Negotiation Cooperative Agreements are available.. Tribal Management Grants may not be used for Self-Governance planning or negotiation activities.

25 U.S.C. § 458aaa-2(e); 42 C.F.R. §§137.24-26

Benefits of Title V Compacting

• Participation in the TSGP affords Tribes the most flexibility to set its own health care priorities and tailor heath care services to the needs of their communities when assuming IHS PSFAs.

• A Tribe or Tribal Organization may redesign or consolidate PSFAs and reallocate or redirect funding without IHS approval in accordance with the ISDEAA.

• Strong Federal-Tribal partnerships have been critical to the continued success of Title V and the TSGP.

• No routine monitoring is required.

Title I and Title V: Differences Topic Discussion

Program Authority

Title I of the ISDEAA25 U.S.C. § 450 et seq.25 C.F.R. § 900 et seq. Title V of the ISDEAA25 U.S.C. § 458aaa et seq.42 C.F.R. § 137 et seq.

Program Summary

Under Title I, Federally recognized Tribes or Tribal Organizations contract with the IHS to plan, conduct, and administer one or more individual programs, functions, services, or activities (PSFAs), or portions thereof, that the IHS would otherwise provide for Indians because of their status as Indians.

Under Title V, Federally recognized Tribes or Tribal Organizations compact with the IHS to assume full funding and control over programs, functions, services, or activities (PSFAs), or portions thereof, that the IHS would otherwise provide for Indians because of their status as Indians.

Title I and Title V: Differences cont. Topic Discussion

Eligibility Under Title I, any Federally recognized Tribe or Tribal Organization is eligible for Title I contracting upon request of the Tribe by Tribal resolution. Eligibility for Title V requires that the Tribe or Tribal organization: (1) successfully complete a planning phase, (2) request participation in Self-Governance by Tribal resolution or other official action by the governing body and (3) demonstrate three fiscal years of financial stability and financial management capability.

Documents Required

Title I: (1) A Contract that includes the model agreement in the ISDEAA and any other provisions agreed to by the parties, and (2) an Annual Funding Agreement (AFA) describing all PSFAs to be performed or administered, the associated funding, and method of payment.

Title V: (1) A Compact that sets forth the general terms of the nation-to nation relationship between the Tribe or Tribal organization and the Secretary and (2) an annual or multi-year Funding Agreement (FA) that generally identifies the PSFAs to be performed or administered and describes financial terms and the responsibilities.


Process Under Title I, the eligible Tribe or Tribal Organization submits a letter or Notice of Intent. The Tribe or Tribal Organization submits a Self-Determination Contract proposal for review. A draft Contract and AFA are produced, and negotiations are held with the Tribe or Tribal Organization. Within 90 days after receipt of the proposal, the IHS Area contracting officer must either approve the proposal and award the Contract or provide written declination of the proposal.

Under Title V, The Tribe or Tribal organization produces a draft Compact and FA. The IHS Agency Lead Negotiator (ALN) assembles a negotiation team and reviews the draft. Following pre-negotiation discussions, the ALN negotiates with the Tribe or Tribal organization.


Redesign and Funding Reallocation

Under Title I, a Tribe or Tribal Organization may redesign PSFAs with IHS approval and may rebudget funding to meet Contract requirements without IHS approval in accordance with the ISDEAA.

Under Title V, a Tribe or Tribal organization may choose to partially or fully retrocede to the IHS.

Retrocession Under Title I, a Tribe or Tribal Organization may choose to retrocede individual PSFAs or the entire Contract award to the IHS.

Under Title V, a Tribe or Tribal organization may choose to partially or fully retrocede to the IHS.

Thank you!

Office of Tribal Self-Governance:301-443-7821

http://www.ihs.gov/selfgovernance