1. June 5, 2016 Silver Reef Hotel Ferndale, Washington
Self-Governance 101 Training Indian Health Service Office of Tribal Self-Governance
June 5, 2016
Silver Reef Hotel
Ferndale, Washington

2. Overview of the Legislative History of the Indian Self-Determination and Education Assistance Act
Tammy Clay
Policy Analyst, OTSG

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

4. Indian Self-Determination and Education Assistance Act (ISDEAA) (Pub. L. 93-638)
Signed into law in Under ISDEAA, a tribe can contract with the Bureau of Indian Affairs (BIA) or IHS to operate any program or portion of a program that these Agencies provide to the tribe.
Note: Created Title I, which is the Indian Self-Determination Act, and; Title II, which is the Indian Education Assistance Act)

5. 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.
Trust Responsibility and Tribal Self-Governance -
“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.”

6. Legislative History of the TSGP
Tribal Self-Governance Demonstration Project (P.L )
Self-Governance Authority Extended to IHS (P.L )
ISDEAA Title V Statute;
ISDEAA Title V Regulations
Amendments
Indian Self-Determination and Education Assistance Act (P.L ) Under this law, a tribe can contract with the BIA or IHS to operate any program or portion of a program that these Agencies provide to the tribe.
Tribal Self-Governance Demonstration Project (P.L ) This law authorized BIA to negotiate compacts with tribes and allows tribes greater flexibility in the operation of programs.
IHS funded to Perform Feasibility Study (P.L ) $500,000 was appropriated to conduct a feasibility study on extending Self-Governance to the IHS
Self-Governance Authority Extended to IHS (P.L ) This law authorized the IHS to negotiate compacts, but SG was still not permanent.
Technical Amendments to Title III Section 301 and Section 302 (a) (P.L ) This law extended the Self-Governance Demonstration Project to 18 years and directed the Secretary to select 30 tribes per fiscal year to participate in the project.
ISDEAA Title V Statute – Permanent Tribal Option Within IHS (August 18, 2000)
ISDEAA Title V Regulations – Negotiated rulemaking process and the Regulations promulgated (May, 17, 2002)
1994 – Technical Amendments to Title III 301 and 302(a)
2010 – IHCIA
IHS Funded to Perform Feasibility Study
(P.L )

7. 1988 ISDEAA Amendments (Pub. L. 100-472)
Authorized the Tribal Self-Governance Demonstration Project within the BIA, by adding Title III to ISDEAA.
Authorized BIA to negotiate compacts with Tribes; and gave Tribes more flexibility in operation of programs.

8. Tribal Self-Governance Extended to IHS
In $500,000 was appropriated to conduct a feasibility study on extending Self-Governance to the IHS (Pub. L ).
In Self-Governance Authority was extended to IHS. This law authorized the IHS to negotiate compacts (Pub. L ).

9. IHS Tribal Self-Governance
In Technical Amendments to Title III, Section 301 and Section 302 (a) (P.L ). This law extended the Self-Governance Demonstration Project to 18 years, and directed the Secretary to select 30 tribes per fiscal year to participate in the project.

10. ISDEAA Amendments
In 2000, Title V (Pub. L ) 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.
vol1/pdf/CFR-2007-title25-vol1-part900.pdf

11. The Patient Protection and Affordable Care Act (ACA) of 2010 (Pub. L
Amended IHCIA, and permanently reauthorized and expanded the IHCIA authorities, including new authorities for Tribes participating in Self- Governance.

12. Thank you!

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

14. 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). 
Tribes consider the needs and circumstances of their members when selecting from available health care options. Tribes may choose one or a combination of the following options:
Continue to receive health care services offered by the IHS to American Indians and Alaska Natives.
Use the authority of the Indian Self-Determination and Education Assistance Act (ISDEAA), Titles I and V, to assume responsibility for health care formerly offered by the federal government. Tribes may contract with the IHS through self-determination contracts and annual funding agreements under Title I or self-governance compacts and funding agreements under Title V.
Fund the establishment of their own programs or supplementation of ISDEAA programs. Tribes who supplement their ISDEAA funds with Tribal funds retain the benefits of the ISDEAA for those expanded services.
If it comes up: Tribal organization means the recognized governing body of any Indian Tribe; any legally established organization of Indians which is controlled,
sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities; provided, that in any case where a contract or compact is entered into, or a grant is made, to an organization to perform services benefitting more than one Indian Tribe, the approval of each such Indian Tribe shall be a prerequisite to the entering into or making of such contract, compact, or grant.

15. 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

16. Over 20 Years of IHS Self-Governance
Tribal Self-Governance Conference, Presentation: The Role of Tribal Consultation
10/30/2017
Over 20 Years of IHS Self-Governance
14 Tribes
14 compacts
14 funding agreements
2% of the IHS Budget
350+ Tribes
89 compacts
114 funding agreements
34% of the IHS Budget
1994
2016

17. Compact and Funding Agreement?
United States
Tribe/Tribal Organization
Neither the Compact of Funding Agreement can stand alone.
They can be negotiated separately, but both operate together to form the contract.
The Tribe produces a draft of the Compact and Funding Agreement and shares the drafts with the ALN prior to pre-negotiation.
Title V Relationship
Funding Agreement
Compact

18. Compact and Funding Agreement?
Compact: Sets forth the general terms of the nation-to- nation relationship between the Tribe and HHS
Funding Agreement (FA) (or Multi-Year FA (MYFA)):
(1) General identification of the PSFAs to be performed;
(2) the funds to be provided and the time and method of the transfer of those funds;
(3) the responsibilities of the Secretary;
(4) other terms to which the parties agree. Plus, a few mandatory provisions (e.g., provisions of Title V section 458aaa-6 regarding health status reports and resumption).
The compact sets forth the terms general terms of the nation-to-nation relationship; it is negotiated when the Tribe enters the program and thereafter only when needed.
The funding agreement describes what we’re actually transferring, when that will happen, and what funds are associated with the programs, services, functions, and activities being transferred. It is negotiated on an annual or periodic basis, as determined by the Tribe.
Note: Although a finite term is specified, in the IHS TSGP, if a Tribe chooses not to renegotiate at the conclusion of the term, the FA will remain in effect until a subsequent FA is executed or the Tribe withdraws from the TSGP.

19. ISDEAA Title V Relationship: General
Term: Title V Funding Agreements remain in effect until a subsequent funding agreement is negotiated. 25 U.S.C. 458aaa-4(d)(Title V).
Payments: Payments are processed by the Office of Tribal Self-Governance (OTSG) and paid by the Area in a lump sum. Payments under Title V must be made within 10 days following the Office of Management and Budget (OMB) apportionment unless otherwise agreed to in the funding agreement. 25 U.S.C. § 458aaa-7(a).

20. Office of Tribal Self-Governance (OTSG)
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

21. 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 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
Federal negotiation team led by an Agency Lead Negotiator
They are the only person with the delegated authority to negotiate on behalf of the Director
Supported by federal negotiation team including an OTSG Program and Financial Analyst, a member of the Office of the General Counsel, and other subject matter experts, as needed.

22. Great Plains Area ISDEAA Title V Team
Agency Lead Negotiator:
Denise Imholt
OTSG:
Program Analyst: Jeremy Marshall
Financial Analyst: Kevin Quinn

23. Investing in future leaders through Internships
OTSG has welcomed numerous interns over the past years including, Ms. Jessica Smith-Kaprosy through the American University Washington Internships for Native Students  . Law school – University of Chicago  HHS Emerging Leaders Program
Harvard Law graduates; Columbia University M.P.H. graduate; and a University of New Mexico working on a M.D.
IHS Pathways Internship replaced the federal Student Temporary Employment Program – Ashley Parkinson current attend Montgomery College

24. Program and Management Analysts
Tribal Self-Governance Conference, Presentation: The Role of Tribal Consultation
10/30/2017
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

25. Audit Review for Self-Governance Eligibility OTSG Budget Activities
Tribal Self-Governance Conference, Presentation: The Role of Tribal Consultation
10/30/2017
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

26. 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

27. Resources Office of Tribal Self-Governance: www.ihs.gov/selfgovernance
Self-Governance Communication and Education Tribal Consortium:
Tribal Self-Governance Advisory Committee (TSGAC)
Welcome to attend quarterly meetings.
Next meeting: July 20-21
Area representatives are excellent resources.
Annual Tribal Self-Governance Consultation Conference

28. Overview of Eligibility Requirements

29. Eligibility Overview: 3 Requirements
To be eligible for the IHS Tribal Self-Governance Program, a Tribe must:
Successfully complete a planning phase;
Request participation in self-governance by resolution or other official action by the governing body of each Tribe to be served; and
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 Sections15–26)

30. 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.
Assessment of existing systems and resources
Determination of Tribal priorities and goals
Community engagement
This stage is the longest and usually takes the most work, but a thorough planning phase makes the rest of the negotiations process more timely and efficient.
This phase helps Tribes make informed decisions about which PSFAs to assume and what organizational changes or modifications are necessary to successfully support those PSFAs. It ensures 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.
Resources for assistance: $$  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.

31. Planning Activities Examples
Hire consultants to conduct research and gather information;
Conduct internal reviews by evaluating policies & procedures;
Attend meetings, train and educate staff, Tribal Council, and Board of Directors; and
Research & evaluate PSFAs at all organizational levels. .

32. 2. Request Participation
The Tribe or Tribal Organization requests 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 –26)

33. 3. Financial Requirement
For the purpose of eligibility and to demonstrate financial stability and capability - a Tribe must provide evidence that during the most recent 3-year period they had no uncorrected significant and material audit exceptions in the required annual audit of their self-determination contracts or self-governance funding agreements with any federal agency.
(25 USC 458aaa-2(c)(2))

34. 3. Financial Requirement (Continued)
Uncorrected: Title V does not include terms “clean audit” or “mature contract”
Audit exceptions: Usually provided by a 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 )
It does not include casino, HUD, or DHHS/Child Care grant findings.

35. 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.

36. OTSG Funding Opportunities- Cooperative Agreements
PLANNING
NEGOTIATION
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

37. Thank You! Any Questions?