CONSULTATION DISCUSSION OUTLINE
7/19/01
Outline Purpose: The following outline is a synthesis of findings and stakeholder recommendations to date and is meant only to serve as a basis for discussion.
References: Many of the design elements that follow are stakeholder recommendations that parallel Title V of the Indian Self-Determination and Education Assistance Act applicable to the tribal self-governance program of the Indian Health Service. A notation indicating this derivation is given where applicable.
Background
· Indian Self-Determination and Education Assistance Act of 1975 (hereafter referred to as the Act) allowed tribes, under a contractual relationship, to assume management of programs, functions, services and activities of the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) that previously were administered by these agencies on their behalf.
· Subsequent amendments to the Act increased the opportunity for self-governing tribes to assume management of programs in the BIA and IHS through negotiated tribal self- governance compacts and funding agreements - first under demonstrations, then permanent programs in both agencies.
· During this expansion, tribes also were authorized to propose self-governance compacts and funding agreements for programs in the Department of the Interior beyond those in the BIA.
· When tribal self-governance of IHS programs became permanent with the passage of Public Law 106-260 (Tribal Self-Governance Amendments of 2000), Congress considered, but decided against, an immediate extension of tribal self-governance to programs in the Department of Health and Human Services outside the IHS.
· P.L. 106-260 did, however, add Title VI to the Act which requires the DHHS to conduct a study of the feasibility of extending tribal self-governance to programs outside the IHS.
Purpose of the Study
· Title VI requires the Secretary of the DHHS to “conduct a study to determine the feasibility of a tribal self-governance demonstration project for appropriate programs, services, functions, and activities (or portions thereof) of the agency.”
· In conducting the study, the Secretary is required to recommend a list of programs which would be feasible to include in a tribal self-governance program and demonstration design elements, such as methods to assure quality and accountability.
· The Secretary also is required to assess the probable costs, savings and the impact on beneficiaries of a demonstration.
Methodology
In conducting the study, the HHS is:
· Carrying out extensive consultations with stakeholders to obtain information and to make recommendations on which programs to include in a demonstration, demonstration design issues and probable impact on beneficiaries. (Consultations are being conducted jointly in partnership with tribal representatives.)
· Reviewing existing General Accounting Office (GAO), Office of the Inspector General (OIG), and other evaluative studies that can provide information on the costs, savings, and impact of previous or current tribal self-governance projects.
The following list represents a preliminary selection of HHS programs that might be recommended for inclusion in a tribal self-governance demonstration project. Comment is needed on the feasibility of including any or all of these programs in a demonstration, including any specific barriers to including them that may be apparent.
A. Program List
1. Tribal Temporary Assistance for Needy Families
2. Child Support Enforcement
3. Low Income Home Energy Assistance Program
4. Community Services Block Grant
5. Child Development Block Grant
6. Tribal Work Grants
7. Head Start
8. Child Welfare (IV-B)
9. Promoting Safe and Stable Families (IV-B)
10. Family Violence- Battered Women’s Shelters
11. Indian Programs-Grants to Tribes (Aging Services)
12. Mental Health Block Grant
13. Substance Abuse Treatment Block Grant
B. It has also been recommended that a demonstration project include an authority for the Secretary, after consultation with Tribes and other stakeholders, to determine the feasibility and make up to six additional HHS programs available for inclusion in funding agreements in years 3-5 of the demonstration project.
C. It was also recommended that, to the extent that Tribes receive or have received grants under other HHS authorities, such grants may be added to funding agreements under the demonstration project.
The following are design elements that have emerged as important to stakeholders in constructing a tribal self-governance demonstration project. Further comment on these or suggestions of other elements is solicited.
· GOVERNMENT-TO-GOVERNMENT RELATIONSHIP
The government-to-government relationship that underpins tribal self-governance is seen by a number of stakeholders, particularly tribes, as a critical foundation for designing a self-governance demonstration. For example, the right of a tribe to redesign and adapt federal programs to meet specific tribal needs is an important element of self-governance that derives from the government-to-government principle, and is consequently an important element to tribes in the design of a demonstration project (see below). The principle also would guide the design of the demonstration to ensure that the demonstration did not diminish, modify or waive the trust responsibility of the federal government to tribes.
· TRIBAL ELIGIBILITY
It has been suggested that eligibility for a tribal self-governance demonstration shall be limited to tribes that have administered at least one mature Title I contract or at least one self-governance agreement under Titles III, IV or V (of the Act) and have demonstrated financial stability and financial management capacity for at least three years under any one or combination of these titles.
For tribes not meeting the primary eligibility criteria, it has been suggested that a limited number (to be specified) of additional federally-recognized tribes be eligible to participate in the demonstration if: 1) they receive training or technical assistance to prepare for project management; 2) successfully complete a planning process; and 3) have three years of demonstrated financial stability and financial management capacity.
Since a majority of all federally-recognized tribes would qualify for participation in a demonstration using the criteria suggested above, a concern is raised that a demonstration may be too unwieldy if all qualified tribes actually opt to participate. One suggestion to address this possibility is to limit participation in a demonstration to fifty (50) tribes. If the number of tribes requesting to participate exceeds 50, the tribes would be chosen by a lottery.
· NEGOTIATED COMPACT/FUNDING AGREEMENT
Under the current IHS self-governance program (Title V of the Act), negotiated compacts and annual funding agreements are the basic mechanisms for determining the terms and conditions of an individual tribal self-governance project. Tribes have found that this negotiation process works well, and recommended that this process be adopted for the demonstration project. This would mean that an eligible tribe would be able to propose a self-governance agreement to the HHS, designating the programs (from those available to tribes under the demonstration) for which it would like to assume responsibility. The HHS then would be required to negotiate an agreement to transfer responsibility for those programs to the tribes. The agreement would set the terms that would apply to the project year after year, including the responsibilities of both the tribe and the HHS. In addition, the HHS would negotiate a separate funding agreement (potentially on an annual basis), setting forth the amount of funds to be transferred directly to the tribe in a given fiscal year.
· LIMIT ON AUTHORITY OF SECRETARY TO DENY PROPOSED AGREEMENTS
Parallel to Title V of the Act, it is suggested that an important design element of a demonstration would be to spell out an appeal process should the Secretary reject a request by an eligible tribe to enter into a compact or funding agreement. Per Title V, the Secretary would be required to provide written notification and justification for that rejection. The justification would be constrained by specific criteria and evidentiary requirements. The right of the tribe to technical assistance to over come the objection, an appeal and hearing by the HHS or the right to file an appeal directly to a federal district court also would be provided.
· AUTHORITY TO CONSOLIDATE AND REDESIGN PROGRAM SERVICES
Title V of the Act allows tribal governments the flexibility to redesign programs and services to meet the needs of their local communities. Under Title V, tribes also have the ability to reallocate funds from one program to another following enactment of appropriations. It has been recommended that the authority to consolidate and redesign services, which is currently available under Title V of the Act to IHS self-governance projects, also apply to any future demonstration. This authority would allow a tribe to reprogram funds and redesign services in a manner that they determine best to serve tribal members and achieve the purposes of a negotiated agreement. However, this authority would be subject to any restrictions in law, regulations or terms of the negotiated agreement, unless a waiver is available and approved by the Secretary. This authority also is seen as a way to eliminate management duplication and achieve possible cost savings.
· REGULATORY WAIVER AUTHORITY
To facilitate the consolidation and redesign of programs, it would be necessary to provide the Secretary with the authority to waive regulatory provisions that impede consolidation and redesign to the extent a waiver is not otherwise prohibited by law (parallel to Title V of the Act).
· MAINTENANCE OF PROGRAM IDENTITY
Concern that the authority to consolidate and redesign programs under a demonstration might result in the loss of program services and the identity of programs under a compact prompted recommendations to clarify the parameters of the flexibility that would be available. Several ideas to provide for this maintenance of effort have emerged. These include limiting the amount of funds that may be moved between programs, guaranteeing program beneficiaries the right to the same or similar services they were previously entitled to, or addressing the balance of tribal self-governance and program integrity through compact negotiations.
All stakeholders agree on the importance of program identity and service delivery.
· FINANCIAL ACCOUNTABILITY
Recommendations to ensure financial accountability have been to adopt the Single Agency Audit Act and applicable Office of Management and Budget financial management circulars on auditing and accounting standards (per Title V). Additionally, it has been recommended that tribes be given due process protections against delay or suspension of payments because of late audit reports.
Under the Single Agency Audit Act, program-specific supplements to the more generic financial audit are often used to review whether funds for a particular program are spent only on authorized activities and eligible clients of that program. The ability to use of these supplements in conjunction with the single agency audit is seen, by some stakeholders, as an important element of accountability to include in the design of a demonstration.
· QUALITY ASSURANCE (PROGRAM ACCOUNTABILITY)
A key element of any demonstration is an evaluation to assess the impact of the experiment on program delivery and client outcomes. Recommendations have supported this concept as part of a demonstration design. For example, tribes have indicated that it is vital for their programs and services to provide useful baseline data and financial and program information. Also, recommendations support a performance measurement approach to evaluation with appropriate outcome measures, data collection and reporting requirements that are negotiated as part of compacts and funding agreements.
As part of a demonstration design, it also has been suggested that program accountability, with respect to tribal assumption of programs heretofore administered by other entities, be clarified. When tribes assume responsibility for programs formerly delivered by other organizations, the design should address the former service provider’s responsibility for providing services to tribal clients served by the demonstration project or for reporting performance information for those clients.
The tribes understand that it is vital for their programs and services to provide useful baseline data, financial and program information to the Administration and Congress. To address issues of program accountability and quality assurance, a reporting format could be mutually determined by the tribes and federal officials in the negotiation of compacts and funding agreements.
· LENGTH OF DEMONSTRATION
Recommendations to date suggest that a five-year demonstration would be needed to allow sufficient time for startup and evaluation.
· HHS PROJECT ADMINISTRATION
It is suggested that a demonstration be administered by the HHS through a single point of contact. The contact would provide a necessary point of coordination for the negotiation and consolidation of various programs into compacts and funding agreements. A single point of contact is also seen as easing the administrative burden on tribes and facilitating the resolution of questions and issues that arise during the demonstration.
· TRANSITION PERIOD
Under a demonstration, programs may devolve from current service providers to tribes. In these cases, it is suggested that current service providers be given sufficient notice before the devolution of a program to allow orderly adjustments to budgets and staffing and to address other transition needs.
· OTHER DESIGN ISSUES
Two additional design issues appear important. First, a number of recommendations stress that the coordination of programs under compacts and funding agreements would be easier and eliminate administrative burdens if the demonstration allowed for all programs under the demonstration to begin, and be renewed, on the same cycle, i.e., the first day of the federal fiscal year.
Second, recommendations support a design element that would allow access to all program funds at the beginning of a fiscal or calendar year (lump sum) rather than available on a proportional, periodic basis throughout the year (as is the case in some programs that are potentially part of a demonstration). Since most tribes do not have sufficient resources to provide services while waiting for federal funds to be drawn down, this “lump sum” provision is seen as protecting against possible delays in services to beneficiaries.
The following section of the discussion outline defines the probable costs of a self-governance demonstration project. At this point, dollar estimates have not been made. Rather, we are still in the process of defining what types of cost (cost elements) are likely under a demonstration, given particular design assumptions. Suggestions of additional cost elements that are likely under a demonstration project are solicited.
Project Development Costs (Pre-award and Startup)
· Creation of project office (e.g., recruitment of staff, equipment, furniture, supplies)
· Development of internal procedures
· Technical assistance to tribes
Project Operations Costs (Ongoing)
· Project office (e.g., staff salaries, supplies, travel)
· Project support (e.g., financial management, space, phones, computer, legal)
· Technical assistance to tribes
Direct Program Costs
Under a demonstration project, tribal shares of particular programs that would be included under a negotiated compact and funding agreement would be determined through the negotiation process. Since these negotiated shares would come out of existing appropriations, we assume there will be no additional direct costs associated with a demonstration. Since some programs under a demonstration may have cost sharing requirements, tribes assuming operation of these programs will incur either the responsibility for a share of the program costs, or additional federal funds will be needed to make up for the loss of matching funds.
Indirect Program Costs
It is recognized that various grant programs that might be included under a demonstration project may have legislative limits on reimbursement of full indirect costs. If this is the case, Congress will have to consider whether to maintain or waive these limits. If waived, either additional federal funding of indirect cost will be needed or direct program costs will erode as tribes begin to use proportionally more of the total program funds for indirect as opposed to direct cost. Recent studies suggest that it is difficult for tribes to manage programs without full indirect cost reimbursement. Therefore the indirect cost issue will be important to resolve. In turn, this may result in the need for waivers of indirect cost limits and additional cost to a demonstration to offset potential decreases in direct program costs.
Similar to estimating the probable cost of a demonstration, we will also be estimating potential savings. Again, no estimates are yet available. However, the following elements identified below, will be used to estimate dollar amounts. Suggestions of additional savings elements that are likely under a demonstration project are solicited.
Savings from Devolution of Responsibility - Federal
· Possible Federal direct cost (e.g., staffing) reductions
· Possible Federal indirect cost savings
Savings from Transfer of Responsibility - Current Service Providers
While it will not be possible to provide a specific estimate of savings in this study, there may be savings that will derive from the transfer of program responsibilities from current state and local service providers to tribes.
Savings from Program Efficiencies Gained
· Reduction in administrative requirements through program consolidation (e.g., reporting, program management consolidation) that could be used by tribes to enhance services under funding agreements.
ASPE is examining various studies and reports to determine the effects on program delivery and on beneficiaries in other areas (Titles I, III, IV and V of the Act) where tribes have assumed the responsibilities of delivering services. Studies found, to-date, provide primarily qualitative information regarding impact on beneficiaries. ASPE will summarize the conclusions of these studies with respect to the impact of self-governance in the report.
These various studies and reports may include, but are not limited to:
Indian Self-Determination Act: Shortfalls in Indian Contract Support costs Needs to be Addressed, GAORCED 99-150 (June 1999)
A Study of Contract Support Costs in the Bureau of Indian Affairs and Recommendations for Reform, Report of the BIA/Tribal Workgroup on Tribal Needs Assessment (June 1999)
Tribal Contract Support Cost: Hearing on H.R. 4148 before the House Committee on Resources, 106th Congress (May 16, 2000)
Report to Congress on Contract Support Cost Funding in Indian Self-Determination Contracts and Compacts (IHS May 1997)
Annual Self-Governance Reports (submitted by IHS and DOI)
National Indian Health Board Study/Report on Self-Governance
GAO Report on DOI Self-Governance
This is by no means a complete list and we welcome additional comments.