Self-Governance Negotiation Process Jessica Smith-Kaprosy, Policy Analyst Office of Tribal Self-Governance Indian Health Service April 2015

Introduction to the Negotiation Process April 2015

Key Features Respects Nation-to-Nation Relationship Collaborative Tribally-driven April 2015

Outcome: Compact and Funding Agreement What are Negotiations? Planning Pre-Negotiations Negotiations Processing & Payment/Post-Negotiations Outcome: Compact and Funding Agreement April 2015

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. April 2015

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. April 2015

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 April 2015

Who negotiates for the Tribe/TO? Who will be your lead negotiator? 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? April 2015

Negotiation Process Stages April 2015

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 April 2015

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. April 2015

Pre-Negotiation Stage 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. April 2015

Pre-Negotiation Stage 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 April 2015

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. 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. April 2015

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

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 OTSG sends a copy of the agreement to the Tribe. OTSG retains the case file in compliance with Federal recordkeeping procedures. April 2015

TSGP Payment Process A signed compact and FA must be in place for the payment process to begin. Congress passes an appropriations act or continuing resolution. OMB apportions the appropriation into quarterly spending limits for the IHS. IHS-HQ OFA allots the funding to Areas. Areas confirm recurring base amounts paid to TSGP Tribes. 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). OTSG sends signed payment document to Area Finance Office. US Dept. of the Treasury sends the funds to the Tribe. Tribe receives funds. 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. April 2015

Tips and Best Practices April 2015

3 Negotiation Stumbling Blocks Timing Communication Version control and document flow April 2015

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