December 17, 2002

Tribal Self-Governance Study
Room 447D, Hubert H. Humphrey Bldg.
Office of the Assistant Secretary for Planning and Evaluation
Department of Health and Human Services
200 Independence Avenue, SW
Washington, D.C. 20201
Fax: 202-690-8252

Dear Dr. Lindal:

The Penobscot Indian Nation (PIN) is very supportive of a Self-Governance (SG) demonstration project for non-IHS agencies within the DHHS and is pleased to see that the Department's feasibility study does recommend a demonstration. PIN has been very successful with IHS Self-Governance. Self-Governance has enabled PIN to maintain services at a consistent level to our tribal community.

In reviewing the Department's Title VI recommendations, there are a number of points where PIN's views differ from those of DHHS and, since a SG demonstration is recommended, these separate views focus on the Department's detailed recommendations rather than on the study itself. While we recognize that PIN's perspective is, and must be, very different than the Department's, we believe these recommendations will help Congress shape a better demonstration for tribal governments and communities. Following are our recommendations.

1. Number of DHHS programs in demonstration - PIN appreciates the DHHS expanded recommendation of 11 programs in the first year and six more programs later in the demonstration. PIN's recommendations for the authorizing legislation is threefold: first, create a social services block grant and a substance abuse and mental health block grant for tribes and also make both available in the first year; second, open the additional six programs starting in demonstration year two; and, third, allow tribes that are selected to receive any other DHHS award during the demonstration to operate that award under their SG Title VI compact and funding agreement (FA) (e.g., Family Violence Prevention, Services and Adoption Opportunities, a CDC grant, or cooperative research agreement).
2. Number of tribes in the demonstration - PIN appreciates the DHHS recommendation for 50 tribes in the first year. PIN's further twofold recommendation is that: the initial 50 tribes and consortia represent a range of sizes, geographic locales, and community criteria; and, other interested tribes (that meet the eligibility criteria) be given opportunities to participate in each subsequent year of the demonstration with up to 25 tribes added per year.
3. Statutory/regulatory changes - PIN recommends the authorizing legislation waive any existing statutory/regulation requirements that restrict the following key SG and Indian Self-Determination principles: negotiate and operate the demonstration's programs under a government-to-government relationship; include continuing, year-to-year controlling rules in the compact and specify PSFA, funding, and mutual responsibilities in the FA; tribal authority to redesign programs and reallocate budgets with no required HHS approvals or prior approvals after tribes agree to follow statutory program purposes and SG allowable cost principles; no unilateral HHS restrictions or revisions to tribal Title VI programs; opportunities for tribal shares; streamlined financial and program reporting; lump sum transfer of funds with authority to earn and use interest.
4. Planning and negotiation grants - PIN supports the DHHS recommendation for planning and negotiation grants and, unless a tribe indicates its willingness to proceed without an award, PIN recommends the grants be provided to all participating tribes.
5. Application process - PIN supports the DHHS recommendation for a consolidated application form and further recommends the authorizing legislation outline the limited criteria/requirements that are to be addressed in a consolidated application.
6. Compacts and Funding Agreements - PIN recommends the authorizing legislation reaffirm Congress' SG policies as stated in Title V, require tribes to agree to follow SG OMB allowable costs principles and statutory purposes in operating Title VI programs, and authorize Title V tribes to negotiate Title VI programs into the existing compacts and FAs.
7. Program redesign, budget reallocation - after tribes agree to follow statutory program purposes and SG allowable cost principles, enable tribes to make program and budget revisions with no required HHS approvals or prior approvals within each compacted Title VI program. The authorizing legislation should direct that there will be no unilateral HHS restrictions or revisions to tribal Title VI programs, and there should be some provision for reallocating funds between compacted programs.
8. Indirect costs, matching costs, and short fall funds - PIN recommends the authorizing legislation allow tribes to charge their OIG negotiated indirect cost rates and that DHHS request appropriations that are sufficient to reimburse tribes for those required costs. PIN recommends the authorizing legislation waive matching cost requirements and authorize short fall funds (following established IHS procedures as a model) to temporarily cover any negotiated tribal shares, such as for tribal assumption of DHHS contracted training and technical assistance, or funds that are reallocated from states as Title VI tribal block grants are established for social services and mental health/substance abuse.
9. Tribal shares - while PIN recognizes that non-IHS programs generally do not provide direct services, we do recommend that the demonstration include opportunities for tribes to negotiate tribal shares; example, tribes should be able to take responsibility and the related funding for training and technical assistance that is provided under contracts.
10. Waivers - PIN recommends the authorizing legislation allow program waivers for anything that is not precluded by statute and the DHHS recommendation for "substantial harm to beneficiaries" be defined.
11. Withdrawal and termination - PIN recommends the authorizing legislation include processes with time frames for withdrawal and termination.
12. Audit Exceptions - PIN agrees that Single Agency Audit Act requirements should apply to the Title VI demonstration in the same manner as those requirements apply to reporting and eligibility in Titles IV and V. PIN recommends the authorizing legislation include the section 106(f) ISDEAA time limit and process for DHHS to begin the process for addressing any single audit exceptions.
13. Transfer of funds - PIN recommends the authorizing legislation authorize tribes to receive their Title VI funds in an annual lump sum payment made within 30 days of when OMB allocates appropriations to DHHS, to invest the lump sum payment following prudent management principles, and to use all interest earnings to further the purposes/services of the compacted Title VI programs.
14. Maintenance of effort - PIN recommends legislative direction that tribes follow statutory purposes and OMB SG allowable costs rules in operating each compacted program. With that requirement, PIN recommends tribes be allowed to make budget revisions with no required HHS approvals or prior approvals within each compacted Title VI program, that there will be no unilateral HHS restrictions or revisions to tribal Title VI programs, and that tribes be allowed to reprogram up to 80% of the funds from one compacted program to another that has similar statutory purposes.
15. Overall evaluation of the demonstration - PIN recommends the overall evaluation be conducted to: 1) verify that statutory purposes were met by tribal operations; 2) establish a baseline measure of services to beneficiaries that are provided by each tribe; 3) establish that key SG principles were carried out as tribes operated their programs; and, 4) identify federal views about the merger of Title VI programs with SG principles and the impact on beneficiaries.

That concludes our recommendations. PIN appreciates the opportunity to provide these views to Congress and the Department. PIN enthusiastically supports the expansion of SG into non-IHS programs in the DHHS and looks forward to participating in the demonstration.

Further, in recommending the demonstration to Congress, PIN urges the Department to do so with enthusiasm that parallels that of the tribes. SG has worked very well in the BIA and IHS, and tribes have expanded their services to beneficiaries. This tribal success was anticipated by Congress with its ISDEAA Title III legislation and has been solidified under Titles IV and V. While the Title VI demonstration will have some risk, its predecessors have shown that the resulting benefits to service participants have far outweighed any problems. Thank you again for this opportunity.

Sincerely

Chief Barry L. Dana

CC: Merle Boyd, Chairman, IHS TSGAC
Dr. Charles Grimm, Interim Director, IHS
Paula Williams, Director, IHS OTSG