Self-Governance Negotiations Tribal Best Practices June 7, 2016

What are you negotiating? 25 U.S.C. § 458aaa-4(b)(1): “Each funding agreement…shall, as determined by the Indian tribe, authorize the Indian tribe to plan, conduct, consolidate, administer…all programs services, functions and activities (or portions thereof)…without regard to the agency or office of the Indian Health Service within which the program, service, function, or activity (or portion thereof) is performed.”

What are you negotiating? Programs, Services, Functions and Activities (PSFAs) Programs (high level) Activities (detailed level); and Describe all “contractible” operations of the IHS, both administrative and programmatic, at each organizational level Tribal Shares Associated with PSFAs

How do you decide which PSFAs to negotiate? Community and Tribal Leader direction Determining feasibility Consideration of opportunities and challenges Orderly transition to Tribal administration of health care programs Community and Tribal Leader direction – this should guide overall PSFA analysis and priority-setting. This will ensure that the resulting course of action will contain strategies to make health services more responsive to the articulated needs and desires of the Tribal community and its Leaders. Determining feasibility of assuming specific PSFAs, or portions thereof: Population to be served; Financial considerations; Opportunities and challenges; Internal management preparedness; Improvement of healthcare outcomes; “Phase-in” strategies. Consideration of opportunities and challenges: Review and consider strategies to capitalize on opportunities that may be available to the Tribe to leverage its health care services, such as third party billing; partnerships with IHS and other organizations and providers; Inter-Tribal partnerships; Affordable Care Act opportunities; and innovative health care delivery system models. Identify barriers and challenges and develop strategies to address such barriers.

Describing PSFAs in the FA How much detail must the PSFA description entail? Ranges from very detailed, to broad program titles. Considerations: Federal Tort Claims coverage, redesign authority, audit. Inclusion of PSFA description of retained or inherent federal functions in FA. Inclusion of PSFAs that are authorized under the Indian Health Care Improvement Act, but that IHS may not be conducting in your Area: Example: Enhanced dental care, preventative health and wellness; Example: Long-term Services and Supports; Example: Home and community based services.

Negotiations Compact Funding Agreement Processing & Payment Service Delivery Evaluation

Selecting the Tribal Negotiation Team Elected Tribal Leaders; Tribal Leader or Designee with decision making authority (Lead Negotiator); Financial representation; Legal representation; SG expert/SG coordinator; Health programmatic staff; Others based upon Tribal priorities.

Federal Negotiation Team Agency Lead Negotiator (ALN) – represents the Director of IHS; OTSG – office of record, provides technical assistance throughout (Program Analyst and Financial Analyst); HQ Staff – for financial and/or PSFA support; Area Staff – for financial and/or PSFA support; Office of General Counsel, HHS – for legal advice to the IHS.

Negotiation Purpose Enables a Tribe to set its own priorities to assume PSFAs; Observes the Nation-to-Nation relationship between the Unites States and each Tribe; Involves the active participation of both Tribal and Federal representatives; Goal: To achieve full agreement on a SG Compact and Funding Agreement that facilitates the Tribe’s vision for health care.

Products of Negotiation Compact – an umbrella agreement that contains provisions that continue year-to-year, effective until terminated; Funding Agreement – contains, at a minimum: PSFA description; The general budget category assigned (within the IHS budget); Funds to be provided; Time and method for transfer of funds Responsibilities of the Secretary (IHS); Any other provisions upon which the Tribe and the IHS agree. 25 U.S.C. § 458aaa—4(d)

4 Stages of the Negotiation Process Planning Eligibility and mandatory planning phase for new Tribes Program assessment and possible additional assumptions Pre-Negotiation Discuss, PSFAs, financial tables, and draft documents Preparation of draft compact and FA Final Negotiations Resolution of remaining issues from pre-negotiation stage Agreement on final documents Post-Negotiations Document processing & payment Negotiation is a four stage process, including planning, pre-negotiation, negotiations, and post negotiations.

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. This stage is the longest and usually takes the most work. Work done during this stage helps Tribes make informed decisions about which PSFAs to assume and what organizational changes or modifications are necessary to successfully support those PSFAs. Megan is going to tell you a lot more about it, but I can say that a thorough planning phase makes the rest of the process more timely and efficient. The ultimate goal of the planning stage is to ensure that the Tribe is fully prepared for the transfer of IHS PSFAs to the Tribal health program. IHS is involved during this stage by providing information about the programs, services, functions, and activities that the Tribe may assume and the associated funding, but most of the work is internal to the Tribe. There are no stupid questions when you’re planning. Get all your questions answered. How do you know when you’re done? When YOU think you’re done. Statute requires that the planning stage be completed to the satisfaction of the Tribe. Resources for assistance: Funding  Planning Cooperative Agreement; Best resource– other Tribes. OTSG, SGCE, or your ALN can help connect you with other Tribes in similar circumstances. TSGAC meetings are a great way to observe the types of issues that Self-Governance Tribes discuss when they meet with the Director (and are open to the public) and the Tribal Self-Governance conference.

Negotiation Process Information requests Negotiation Meetings Financial tables, billing and workload information; Any PSFA updates; Proposals for language from IHS (such as CSC or other issues); Transitional information such as for contracts, equipment/facilities and personnel. Negotiation Meetings

Pre-negotiation stage At Tribal request; Individual Tribe, group of Tribes, or entire Area Office; Review financial tables and gather more information about PSFAs. Drafting or editing the compact & FA Active discussion by negotiation teams: Issues identified during planning 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. After planning, the Tribe will produce a draft funding agreement and share it with both negotiation teams. Tribes are often willing to share their documents with other Tribes for reference. The ALN can help make appropriate referrals. Timing is ESSENTIAL. Trying to rush through this stage almost never goes well. Both teams need enough time to review, form questions, gather information, formalize positions on issues, and consider possible solutions. On the other hand, negotiation teams need to stay in regular communication. When months pass between calls or meetings, it is easy to lose track. Timely document exchange between meetings to keeps the process moving. Agree on action items and timelines at the end of meetings We strongly recommend one formal “pre-negotiation” meeting. This meeting and the subsequent discussion (often by email) are very important and worth the extra time. Working out most of the issues ahead of time reduces frustration during final negotiations.

Final Negotiations Full Tribal and Federal negotiation teams (face-to-face, conference call, etc); Teams work together to reach agreement on the final documents. Tribe should set the agenda and identify meeting goals; Exchange of draft documents ahead of time is helpful. Once agreement on the final documents has been reached, two final copies are signed by the Tribe and provided to the ALN. At final negotiations, both teams sit down, work out any remaining issues, and come together to reach agreement on the final documents. Generally we recommend in-person for Tribes new to the program. When done, two final copies are signed by the Tribe and sent to the ALN.

Negotiation Meetings A collaborative process, with mutual respect; Respects the Nation-to-Nation relationship; Oriented towards Tribal goals for Self-Governance; Secretary must exercise good faith “…to maximize implementation of the Self-Governance policy.” (25 U.S.C. § 458aaa—6(e)) Positively work towards mutual agreement wherever possible.

Negotiation Tips Get to know your Agency Lead Negotiator; Set the agenda – identify your negotiation issues; Ask a lot of questions – there are no ‘stupid’ questions! Submit and track information requests to IHS; Talk to experienced Tribes; Keep a running list of outstanding negotiation issues; Keep the document and proposal exchange moving, apart from formal meetings – update frequently;

Negotiation Tips Control the documents; Prepare follow up action lists, with agreed upon timelines; Be creative in problem-solving; Delegate selected items to ‘sub’ negotiation teams to report back to larger group (examples: IT, legal issues) Don’t forget to negotiate program coordination/implementation issues; Don’t take ‘no’ for an answer. Look at all alternatives for achieving Tribal goals.

Post-Negotiations 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. The ALN reviews the documents, packages them with supporting documents, and submits the whole thing to HQ for another review, processing, and signature by the Director or a designee.

Last Resort – Final Offer 25 U.S.C. § 458aaa—6(b) For disagreements, in whole or in part; Tribe formally submits to the ALN; IHS determination within 45 days; Failure to reject within 45 days is deemed agreement by IHS.

Rejection of Final Offers 25 U.S.C. § 458aaa—6(c) Amount of funds exceeds the applicable funding level the Tribe is entitled to; PSFA is an inherent federal function; Tribe cannot carry out PSFA without “significant danger or risk to the public health”; and Tribe is not eligible to participate in self-governance. IHS must provide: technical assistance, a hearing on the record, or an option for entering the several portions of the agreement(s) upon Tribal request.

What Happens After? IHS ALN must make a recommendation regarding the agreement(s) with the Tribe; Office of General Counsel disagreement does not necessarily mean IHS disagreement; Resulting agreements are maintained, tracked and coordinated by the Office of Tribal Self-Governance; Successor agreement provision – the Funding Agreement remains in full force and effect until a subsequent agreement is executed. (25 U.S.C. § 458aaa—4(e))

What if you Cannot Agree? Reach out – have any other Tribes experienced the same issue? Use SGCE and TSGAC networks. (Getting out of your IHS Area is key.) Request additional IHS information or involvement as necessary; Request technical assistance from OTSG; Use Tribally-acceptable alternatives and identify high priority issues.