National Self-Governance
Feasibility Study
State and Local Government Consultation Session
Washington, DC
June 7, 2001
The National Self-Governance Feasibility Study held a consultation meeting with various non-governmental organization representatives on June 7, 2001, in Washington, D.C. Approximately 15 people attended the meeting, which was jointly chaired by the Department of Health and Human Services (DHHS) and the Tribal Self-Governance Advisory Committee (TSGAC).
Opening Remarks/Introduction
Dr. Delores Parron, Deputy Assistant Secretary for Planning and Evaluation, opened the session by summarizing the Tribal Self-Governance Amendments of 2000, stating that it asks DHHS to study whether self-governance will work for DHHS’ 300 programs since it works at the Department of Interior.
Dr. Parron said that the legislation requires DHHS to work in partnership with tribes during the feasibility study consultation process. The consultation today will focus on providing background on the feasibility study and tribal recommendations, as well as on receiving participant comments.
Background
Mickey Peercy, representing the TSGAC and the Choctaw Nation of Oklahoma, provided background information about tribal self-governance. He said that self-governance is not a concept, but a way of life, to tribes. He described the history of the federal government’s self-determination policy from the mid-1970’s through the enactment of self-governance legislation, indicating that the development of this policy was tribally-driven.
He said that self-governance is a step ahead of self-determination, with the main difference being the ability of tribes to contract to administer specific program functions versus the ability of tribes to run federal programs more flexibly. Today, approximately 265 tribes run their IHS health programs through self-governance compacts. He indicated that the Oklahoma Choctaw Nation’s experience with IHS self-governance has been successful.
Paul Alexander, Alexander & Karshmer, provided a legislative history beginning with the enactment of the Indian Self-Determination and Education Assistance Act and ending with the enactment of the Tribal Self-Governance Amendments of 2000, which created the Title VI feasibility study. He stated that self-governance legislation originally was conceived because of burdensome program regulations and reporting requirements that were eventually a part of self-determination contracting and described self-governance policy as the implementation of local control and local flexibility. He also indicated that, when the Interior Department self-governance regulations were developed, many non-BIA agencies were extremely resistant to allowing tribal governments to have more control over programs, which he believes is relevant to the Title VI process. He said that the feasibility study is in fact a compromise by tribes that was reached after non-IHS agencies rejected a proposal to move to a self-governance demonstration project but that it is a good thing because it will allow tribes and DHHS agencies to become more familiar with each other.
Self-Governance Feasibility Study Description
Dr. Parron described the study protocol as being based on the government-to-government partnership between DHHS and tribes. She then outlined the consultation process and introduced Michael Herrell, Office of Assistant Secretary for Planning and Evaluation, DHHS, who outlined the details of the feasibility study.
Mr. Herrell stated that, until last summer, DHHS self-governance was limited to IHS programs. During the debate on the TSGA of 2000, tribes asked Congress to expand self-governance to some or all other DHHS programs. DHHS said that it was not ready to move forward, but agreed to work with tribes on a feasibility study to see whether self-governance should be expanded to some or all DHHS programs. These findings are due in a report to Congress in February 2002.
Mr. Herrell said that Congress set forth specific study requirements, including:
He stated that the report will contain the Secretary’s recommendations, but that the legislation authorizes any other interested entities can submit separate views to the report.
Gale Arden, HCFA, asked how specific programs will be “parsed out.” Mr. Herrell replied that DHHS is working with tribes to answer this question, based on tribal experience with running certain programs. Hopefully, this process will narrow the scope for DHHS so that it can talk more concretely both within DHHS and with other outside entities about this. Mr. Peercy added that he does not believe that tribes will become involved in programs that will result in failure, so people will likely move forward cautiously.
Peggy Bailey, Office of Maternal and Child Health Programs, asked for a description of the DHHS programs under consideration, which Mr. Herrell provided.
Tribal Recommendations
Mr. Herrell provided an overview of the tribal recommendations compiled during the regional consultation meetings. The tribal recommendations, accompanied by any discussion that occurred during the June 7 meeting, follow.
Tribal Recommendation: The government-to-government relationship would underpin the demonstration project, which means that the federal government and tribes would be equal in terms of negotiating the terms of self-governance agreements.
Tribal Recommendation: Direct operation of selected programs of the 300 DHHS programs would be assumed under negotiated agreements.
Tribal Recommendation: These negotiated agreements would provide for the direct transfer of both program and support funds through annual funding agreements.
Tribal Recommendation: Secretarial waiver authority and tribal program redesign/consolidation authority are key design features.
Mr. Herrell stated that DHHS received many comments on this issue during the June 6 meeting with state and local governmental representatives. He said that these authorities are very flexible in terms of giving tribes leeway in program operation.
Mary Ellen Hayes, National Head Start Association, asked whether consolidation authority would allow tribes to commingle tribes between self-governance agreements. Mr. Herrell responded that funds could be commingled between programs contained in the single funding agreement for DHHS programs. Mr. Alexander added that there are some authorizations for this type of commingling of funds through intergovernmental agreements, so this should be considered an open issue for areas in which it makes sense (e.g., BIA justice funds and DHHS juvenile justice funds). Ms. Hayes followed up by asking whether Head Start funds could be used to build a jail, and Mr. Alexander replied that this is not the type of thing that tribes are seeking, but reiterated that there would be certain types of appropriate commingling funds. Mr. Herrell cited the Title V provision that prevents eligible individuals from receiving services under a self-governance agreement as a protection. Andrew Rock also cited the P.L. 102-477 program as one that allows the re-programming of a certain percentage of funds from different agencies for employment and training activities.
Ms. Locke asked whether Mississippi Choctaw would be able to do a single compact for DHHS and IHS programs. Mr. Herrell said that this is something that tribes might want to look at this.
Ms. Hayes raised the possibility of Head Start being moved to the Education Department as part of the upcoming reauthorization. Mr. Herrell replied that this would need to be dealt with as part of a reauthorization bill.
Tribal Recommendation: There should be a limitation on the Secretary’s ability to deny self-governance proposals, based on existing Title V language.
Tribal Recommendation: Financial accountability should be ensured by Single Audit Act and OMB Circular compliance.
Tribal Recommendation: Program accountability should be ensured by including performance measures in negotiated agreements, based on existing accountability systems. He added that tribes are seeking a single accountability system, rather than multiple reporting requirements.
A question was asked whether DHHS would check on whether tribes had established accountability measures and whether tribes would be willing to negotiate with DHHS on accountability measures. Mr. Peercy said that tribes are doing this with the BIA, and that tribes are willing to negotiate reporting requirements. Ms. Hayes asked whether tribes would be willing to accept current review process, and Mr. Peercy replied that tribes are willing to undergo good review standards. Mr. Alexander said that the fear is that, if the legislation is left ambiguous, then the reporting requirements will be too burdensome and will not be funded. Gena Tyner-Dawson, DHHS Office of Intergovernmental Affairs, added that the Title V negotiation process has focused on what data is needed to make budget proposals to Congress, identify funding shortfalls, and develop health status reports.
Tribal Recommendation: The evaluation of the demonstration project should be based on current levels of services.
Tribal Recommendation: Current interest focuses on programs currently run by tribes and for which they receive funding, as well as a limited number of programs not currently run by tribes but that address significant tribal needs. He added that criteria would also include identifiable tribal shares and a neutral or positive impact on beneficiaries. Beyond this, Mr. Herrell said that DHHS does not specifically know which programs will be identified at this point. Mr. Alexander stated that Head Start is high on the list, if not number one, and Mr. Herrell said that TANF and child welfare also are high interest programs.
Tribal Recommendation: Eligibility for participation should be based on the following: Tribes with current Title I, IV, or V contracts or compacts; tribes with three years of demonstrated financial stability and management capacity; or, tribes that acquire capacity through a technical assistance and planning process. Mr. Peercy reiterated that participation in self-governance is voluntary.
Tribal Recommendation: The length of the demonstration should be five years, which will allow for implementation and evaluation.
Tribal Recommendation: There should be a single point of contact within DHHS for the management of the demonstration project. Mr. Herrell indicated that he does not know how this recommendation will play out within DHHS, though the suggestion does make sense.
Ms. Arden, HCFA, asked whether tribes discussed Medicare and Medicaid. Mr. Herrell said that it was mentioned, but that it was determined that it would likely be too complex to administer as part of a demonstration project at this point. Mr. Alexander said that the Indian Health Care Improvement Act contains several provisions dealing with Medicare and Medicaid access, and that the reauthorization debate this Congress will be the forum for dealing with Medicare and Medicaid issues.
Congressionally Mandated Assessments
Mr. Herrell then reviewed the congressionally mandated assessments to be included in the report, which include the following: costs (start up, federal administrative, program); savings (efficiencies, devolution of federal functions); potential impact on beneficiaries; and, legal barriers.
He mentioned the ongoing BIA and IHS contract support cost shortfalls as an issue that will need to be considered in the context of providing administrative costs for DHHS programs. Mr. Peercy agreed that this issue will need to be examined and that administrative overhead should be shifted to tribes when they assume program administration.
He also mentioned that program savings and impact on beneficiaries may be difficult to quantify. Mr. Peercy stated that tribes in Oklahoma have been able to use their lump sum funding for IHS programs (including service dollars, interest, and tribal shares) and tribal resources to provide better services. He added that these improvements are more than could have been achieved under the federal system. Mr. Herrell stated that there are some qualitative studies and anecdotal evidence that show a neutral or positive impact on beneficiaries.
Elaine Locke, American College of Obstetricians and Gynecologists, raised the issue of tort reform in the context of legal barriers. Mr. Herrell replied that the DHHS General Counsel’s Office is looking at this issue, and Mr. Alexander said that tribes are also very concerned about because of coverage issues. He stated that he does not know whether a legislative fix is possible in the context of Title VI. He said that some of these issues, such as state licensure, are dealt with as part of the Indian Health Care Improvement Act.
Dinah Wiley, Office of Civil Rights, asked whether there has been an analysis of legal barriers affecting civil rights laws. Mr. Herrell said that DHHS needs to identify the program list first, then it will consult with General Counsel’s Office and the Office of Civil Rights. Mr. Alexander said that the only civil rights issue that has been considered so far is to encourage tribal-state partnerships on coverage issues as part of Title V, and that this is an issue that should be looked at. Mr. Herrell added that, during the June 6 consultation, some state representatives raised the issue of the possible impact on non-Indian beneficiaries.
Next Steps
Mr. Herrell concluded by outlining the next steps in the consultation process. On June 14, there will be a consultation meeting in Washington, D.C., for all interested parties. This consultation meeting will incorporate the tribal recommendations and the state/local comments.
The working document will be circulated in September for comment, with the possibility of an additional Washington, D.C., meeting to discuss it. The final report will be completed by December 1, 2001, and must be submitted to Congress on February 18, 2002.