1. Self-Governance 101 Training Indian Health Service Office of Tribal Self-Governance May 10, 2016 Dakota Event Center Aberdeen, South Dakota

2. Overview of the Legislative History of the Indian Self-Determination and Education Assistance Act (ISDEAA) Tammy Clay Policy Analyst, OTSG Tamara.Clay@ihs.gov

3. Tribal Self-Determination, Sovereignty, and Self-Governance American Indians and Alaska Natives (AI/ANs) exercised their inherent rights to self-determination and self-governance long before the arrival of non- Indigenous peoples to the Americas.

4. Tribal Self-Determination, Sovereignty, and Self-Governance After centuries of Federal policies ranging from extermination and removal to assimilation and neglect, Tribal self-determination has become the hallmark of United States Indian policy. It is also a human right. (Strommer and Osborne, 2010)

5. The legal basis for Tribal sovereignty is found in the United States (U.S.) Constitution, treaties, Federal laws or statutes, court cases, executive orders, and administrative policies.

6. Through these Authorities, the U.S. Government:  Recognized Tribes as distinct political entities;  Reaffirmed Indian nations retain their inherent right to govern themselves and their territories subject only to limitations imposed by Federal law;  Engages in nation-to-nation relationships with Tribal governments; and  Requires all Federal agencies to interact with Tribes as governments.

7. Tribal Self-Governance “Self-Governance is a Tribally driven initiative fundamentally designed to incorporate the government to government relationship into a meaningful partnership process between the U.S. and Indian Tribes, founded on our political relationship with the U.S. by treaties and agreements.” - Dale Risling, Dr., Chairman Hoopa Valley Tribe of California, October 20, 1993

8. Indian Health Service (IHS) Authorities – Prior to 1975  Snyder Act of 1921, Public Law (Pub. L. 67-85) – Authorized appropriations and expenditures for health services and other purposes for AI/ANs.  Transfer Act of 1955, (Pub. L. 83-568) – Indian health care moved form the Department of Interior to the Public Health Service, IHS.

10. Indian Self-Determination and Education Assistance Act (ISDEAA) (Pub. L. 93-638)  Signed into Law in 1975, and reaffirmed Congressional support of the Nation-to-Nation relationship between the United States and each Tribal Nation.  Enacted to ensure “effective and meaningful participation by Indian People in the planning, conduct, and administration” of Federal services and programs provided to the Tribes and their members [25 U.S.C. 450a(b)].

11. ISDEAA (Pub. L. 93-638) Provided Tribes with the option to exercise their sovereignty by: (1) Assuming the administration and operation of Programs, Services, Functions and Activities (PSFAs) from the Indian Health Service (IHS), via contracting and/or compacting; and/or (2) Continuing to receive health care through the IHS- administered, direct-care health system.

12. The Indian Health Care Improvement Act (IHCIA) of 1976 (Pub. L. 94-437)  Implemented Federal trust responsibility for the care and education of Indian People.  Serves as the main legal authority for IHS.  The Patient Protection and Affordable Care Act (ACA) of 2010 (Pub. L. 111-148) amended IHCIA, and permanently reauthorized and expanded the IHCIA authorities, including new authorities for Tribes participating in Self-Governance.

13. 1988 ISDEAA Amendments (Pub. L. 100-472)  Revisions substantially removed many of the administrative and practical barriers that persisted under ISDEAA.  Authorized the Tribal Self-Governance Demonstration Project within the Bureau of Indian Affairs (BIA), Department of Interior (DOI), by adding Title III to ISDEAA.  Authorized BIA to negotiate compacts with Tribes; and gave Tribes more flexibility in operation of programs.

14. Tribal Self-Governance Extended to IHS  In 1991, IHS received funding to perform a feasibility study to explore extending Tribal Self-Governance to IHS (Pub. L. 102-184).  Following the success of the DOI Self-Governance Demonstration Project, Congress extended the same authority to IHS through the Indian Health Amendments of 1992 (Pub. L. 102-573).

15. IHS Tribal Self-Governance  In 1994, an amendment to Title III [Pub. L. 103- 435, §§ 301 and 302(a)] extended the Tribal Self- Governance Demonstration Project to 18 years; 30 Tribes per fiscal year to participate.  In 1996, Tribal leaders participated with Agency representatives in a negotiated rule making process to implement the Title I Self- Determination Contracting Program, now referred to as the IHS Office of Direct Service and Contracting Tribes program. (See 61 FR 32482)

16. In 1996, the Tribal Self-Governance Advisory Committee (TSGAC) was established, to:  Advise the Director, IHS, and provide assistance on issues of concern, regarding Tribal Self-Governance and its implementation.  The IHS Tribal Self-Governance Advisory Committee (TSGAC) membership consists of a Primary and an Alternate representative from each of the IHS Areas that have Self-Governance Tribes. http://tribalselfgov.org/resources/documents/ http://tribalselfgov.org/resources/documents/

17. ISDEAA Amendments  In 2000, Title V (Pub. L. 106-260) was passed, and created a permanent Tribal Self-Governance program for IHS.  In 2002, Title V [42 Code of Federal Regulations (C.F.R.) Part 137] Tribal Self Governance Regulations were promulgated via a rule-making process, with Tribal and Agency representatives to implement Title V. https://www.gpo.gov/fdsys/pkg/CFR-2007-title25- vol1/pdf/CFR-2007-title25-vol1-part900.pdf

18. Take Aways  The Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the U.S. with respect to Indian Tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions. (25 U.S.C. 458aaa-6(g))  Tribes are in the best position to administer their own health programs as they are most familiar with their Tribe’s health, social, economic, political, and cultural determinants, as well as their particular tribal history (i.e. historical trauma).

19. Take Aways Through participation in the IHS Tribal Self-Governance program, Tribes have the flexibility to shape their health programs to incorporate evidence-based practices with traditional health practices to meet Tribal member’s needs most effectively.

20. Overview of the Tribal Self-Governance Program and Office of Tribal Self-Governance

21. Options for Tribes Today Based on the needs of their communities, Tribes may choose one or a combination of the following options:  Receive health care services directly from the Indian Health Service (IHS);  Use the authority of the Indian Self-Determination and Education Assistance Act (ISDEAA) and either  Contract with the IHS to administer individual programs and services the IHS would otherwise provide (referred to as Title I Self-Determination Contracts); or  Compact with the IHS to assume full control over programs, services, functions or activities (PSFAs), or portions thereof, that the IHS would otherwise provided (referred to as Title V Self-Governance Compacts).

22. Participation in Title I and Title V Title I:  227 contracts and annual funding agreements  $900 million transferred through Title I contracts Title V:  352 Tribes participating directly or through tribal organizations and intertribal consortia in the Tribal Self-Governance Program (TSGP)  88 Compacts and 113 Funding Agreements  Title V agreements transfer $1.8 billion, approximately 1/3 of the IHS appropriation. Combined, these agreements transfer approximately $2.5 billion, over half the IHS appropriation.

23. 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.  Tribally-Driven Negotiations

24. Areas participating in the Tribal Self-Governance Program

25.  Self-Governance Implementation  Reviews eligibility requirements for Tribes to participate in the Tribal Self- Governance Program (TSGP) and applications for TSGP Planning and Negotiation Cooperative Agreements.  Participates in nation-to-nation negotiations of ISDEAA Title V Compacts and Funding Agreements and provide oversight and support of the Agency Lead Negotiators (ALNs).  Oversees funding to Self Governance Tribes  Agency Advisor on TSGP  Special Project Oversight  Nation-wide Self-Governance Education and Outreach  Tribal Consultation Office of Tribal Self-Governance (OTSG)

26. W HO NEGOTIATES FOR THE G OVERNMENT ?  IHS negotiation teams are lead by an Agency Lead Negotiator (ALN).  The only person with authority to negotiate Compacts and Funding Agreements 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 at Area and HQ Offices

27. Great Plains Area ISDEAA Title V Team  Area Point of Contact: Sandy Nelson  OTSG:  Program Analyst: Aaron Lane  Financial Analyst: Carla Mayo

29. Program and Management 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 29

30. 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 Activities 30

31. 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 31

32. Overview of Eligibility Requirements

33. Eligibility Overview: 3 Requirements To be eligible for the IHS Tribal Self-Governance Program, a Tribe must: 1. Successfully complete a planning phase; 2. Request participation in self-governance by resolution or other official action by the governing body of each Tribe to be served; and 3. Demonstrate, for 3 fiscal years, financial stability and financial management capability. (25 USC 458aaa-2(c)); 42 C.F.R. PART 137, Subpart C; 42 C.F.R. 137.15–26)

34. 1. Planning Phase  The planning phase shall be conducted to the satisfaction of the Tribe  Usually, this stage is the longest and most work.  It must include:  Legal and budgetary research  Internal Tribal government planning and organizational preparation  When complete, a “planning statement” is submitted to OTSG.

35. 2. Request Participation Request participation in self-governance by resolution or other official action by the governing body of each Tribe to be served; (25 USC 458aaa-2(c)); 42 C.F.R. PART 137, Subpart C; 42 C.F.R. 137.15–26)

36.  For the purposes of eligibility, “evidence that, during the 3-year period … an Indian tribe had no uncorrected significant and material audit exceptions in the required annual audit of the tribe’s self-determination contracts or self-governance funding agreements with any federal agency shall be conclusive evidence of the required stability and capability.” 25 USC 458aaa-2(c)(2)  The IHS Office of Tribal Self-Governance (OTSG) reviews the Tribe’s audits to determine whether this requirement has been met. 3. Financial Requirement

37.  3-year period: The most recent 3 years  Uncorrected: Title V does not include terms “clean audit” or “mature contract”  Audit exceptions: Usually from the Tribe’s auditor in the audit  Self-determination contracts or self-governance funding agreements with any federal agency:  The review only looks at the BIA and the IHS contracts/compacts findings, except for cross-cutting centralized functions (e.g. personnel, payroll, property management, etc.). (42 CFR 137.22)  It does not include casino, HUD, or DHHS/Child Care grant findings. 3. Financial Requirement: Key Features

38. Sample Eligibility Determination Memo Final step in the eligibility process: The IHS Office of Tribal Self-Governance produces an eligibility determination memo, which is sent to the Tribe.

39. FY 2016 Resources Office of Tribal Self-Governance and Office of Direct Service & Contracting Tribes

40. Presentation Overview  OTSG Planning and Negotiation Cooperative Agreements  Overview of Pre-award Resources  ODSCT Tribal Management Grants

41. Types of Funding Opportunities PLANNINGNEGOTIATION  Gather information on available PSFAs and related funding  Improve and enhance the healthcare delivery system to better meet the needs of the Tribal community  Identify PSFAs to be negotiated and included in Compact and Funding Agreement (FA)  Identify Tribal funding shares to be included in the FA  Develop terms and conditions of the FA 41

42. Planning Cooperative Agreements (available, not required)  Planning Cooperative Agreements provide resources to Tribes interested in entering Self-Governance and to existing Tribes interested in expanding their PSFAs.  Who can apply?  Tribes that have not received a Cooperative Agreement;  Tribes that received a Cooperative Agreement but chose not to enter into the Tribal Self-Governance Program;  Existing Self-Governance Tribes that are planning to assume and/or expand current Programs, Services, Functions and Activities (PSFAs). This includes Tribes that have already received a Cooperative Agreement. 42

43. Planning Activities Examples  Legal and Budgetary Research  Attend meetings  Hire consultants to conduct research and gather information  Conduct internal reviews by evaluating policies & procedures  Train and educate staff, Tribal Council, Board of Directors  Research & evaluate PSFAs at all organizational levels  Completed to the satisfaction of the Tribe. 43

44. Negotiation Cooperative Agreements (available, not required)  Negotiation Cooperative Agreements provide resources to Tribes to help defray costs related to preparing for and conducting Tribal Self-Governance Program negotiations.  Who can apply?  Tribes that plan to negotiate a Compact and Funding Agreement with the IHS, which includes:  Preparation and discussion each Program, Service, Function, and Activity (PSFA) in comparison to the current level of services so the Tribe can make an informed decision on new or expanded program assumption.  Identification of Tribal shares associated with PSFAs that will be included in the funding agreement.  Development of the terms and conditions that will be set forth in the Compact and Funding Agreement.

45. Negotiation Activities Examples  Attend or conduct trainings and meetings  Travel  Hire consultants to develop Compact and Funding Agreement  Review funding tables 45

46. Award Amounts and Process Five FY16 Planning Cooperative Agreement awards in the amount of $120,000 each will be issued, subject to the availability of appropriations and budgetary priorities of the IHS. Five FY16 Negotiation Cooperative Agreement awards in the amount of $48,000 each will be issued.

47. Key Dates  Application Deadline Date: June 3, 2016  Signed Tribal Resolution Due Date: June 3, 2016  Start of Objective Review Date: June 17, 2016  Earliest Anticipated Start Date: July 1, 2016

48. Announcements are made through a Federal Register Notice, the Grants.gov website (www.grants.gov) and the OTSG website (www.ihs.gov/selfgovernance). The announcement contains information on the number of agreements available, how to apply, deadlines, requirements and scoring criteria.www.grants.govwww.ihs.gov/selfgovernance

49. OTSG Cooperative Agreements  Planning Cooperative Agreement: http://www.grants.gov/web/grants/search-grants.html http://www.grants.gov/web/grants/search-grants.html  Negotiation Cooperative Agreement: http://www.grants.gov/web/grants/search-grants.html http://www.grants.gov/web/grants/search-grants.html

50. Point of Contact  Anna Johnson, Program Analyst, OTSG  Email: Anna.Johnson2@ihs.govAnna.Johnson2@ihs.gov  Office: (301) 443-7821

51. 51 ODSCT Resources  Feasibility – up to $70,000 and 1 year  Planning – up to $50,000 and 1 year  Evaluation – up to $50,000 and 1 year  Health Management Structure – average $100,000/year (not to exceed $300,000 for 3 years) Tribal Management Grants

52. 52 Eligibility Information Eligibility Information  Eligibility:  Any federally recognized Indian Tribe or Tribally sanctioned Tribal organization  Tribal organizations that operate mature contracts that are designated by a Tribe to provide technical assistance and/or training.  Cost Sharing or Matching: No requirement  Documentation Required:  Tribal Resolution – Draft may be submitted initially but a final ratified resolution is required  Priority I: FRN or letter from BIA verifying establishment of Tribe within last 5 years  Priority II: NEAR letter and attachment A or Financial Statement  Audit Definitions  Consortium Participation: Identify member Tribes Tribal Management Grants

53. 53 Key Dates  June 8, 2016 – Final Application Deadline (All applications must be received by this date.)  June 20-24 – Objective Review  September 1 – Earliest Anticipated Project Start Date Tribal Management Grants

54. ODSCT Point of Contact  Office of Direct Service and Contracting Tribes  301-443-1104

55. Pre-Award and Startup Information  Both are a one-time cost incurred reimbursement.  Pre-award costs are incurred prior to the award date of the contract/compact  Startup costs are incurred after the award date but during the initial year of operation

56. Pre-award and Startup Process  You must send a letter to the Area Director informing their office of your intent to start incurring Pre-award costs.  You must include an approximate amount of your costs you will incur for your planning  Check with Area regarding the reasonableness of your costs and availability of funds  Costs are negotiated before award

57. Thank You! Any Questions?