1 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Issues to Look Out for on ISDEAA Contracting/Compacting Geoffrey D. Strommer Hobbs, Straus, Dean, & Walker, LLP 806 S.W. Broadway, Suite 900 Portland, OR

2 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 10. Process: How to set up the best negotiation dynamic? Tribal negotiating team: political, administrative, legal and financial Groundwork: adequate planning, clear objectives, anticipate agency positions Identify key players on agency side

3 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 9. Process: How does the agency review proposals, and what can the Tribe do about rejections? Title I proposal review/declination process Title IV negotiation process: bootstrap declination process Title V proposal and final offer process

4 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 8. Contract/Compact FA provisions: What is the starting point? Title I – Section 108 (mandatory contract) Title IV – 25 CFR (compact) and Section 403 (funding Agreement) Title V – Section 504 (compact) and Section 505 (funding agreement)

5 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 7. Reporting and oversight requirements: How to minimize federal oversight. Title I: mature v. non-mature contract; audit, quarterly reports, negotiable additional reports Title IV: audit Title V: audit; data reporting

6 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 6. Reallocation of funds and redesign of programs: How to maximize flexibility. Title I: no unilateral redesign; unilateral reallocation Titles IV and V: unilateral redesign and reallocation

7 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 5. Funding: What should be on the table? Programs, Functions, Services & Activities §106 (a)(1) funds Area/Agency/HQ §106(a)(1)Tribal Shares Inherent Federal Functions Residual Tribal Share

8 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 4. Special considerations for IHS agreements. Construction programs Services to non-beneficiaries Use of third party reimbursements ACA and IHCIA provisions Buyback agreements

9 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 3. Special considerations for DOI/BIA agreements. Scope of Title I and Title IV: discretionary v. mandatory programs Construction, trust and Indian reservation roads programs Law enforcement programs

10 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 2. Scope of work: How to ensure maximum FTCA coverage. How FTCA works Supplemental insurance Importance of scope of work Friction points: –Funded v. unfunded programs –Authorized v. unauthorized programs

11 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA 1. Contract support costs: How to ensure full recovery. History of underfunding: litigation Current appropriation outlook Ongoing policy development IHS and BIA approaches to negotiations ISDEAA agreement language

12 HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC | PORTLAND, OR | OKLAHOMA CITY, OK | SACRAMENTO, CA Questions? Geoffrey D. Strommer Hobbs, Straus, Dean, & Walker, LLP 806 S.W. Broadway, Suite 900 Portland, OR