National Self-Governance Feasibility Study
Regional Consultation Session
Anchorage, AK
May 3, 2001
The fourth and final Tribal Self-Governance Feasibility Study regional consultation was held on May 3, 2001, in Anchorage, Alaska. Approximately 55 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
Michael Herrell, DHHS Office of Planning and Evaluation, opened the meeting by reviewing the agenda and summarizing the Title VI feasibility study required by the Tribal Self-Governance Amendments of 2000. He explained that the consultation process, required by the Act, includes meetings with tribal, state, and local governments, as well as national constituency organizations, and said that the impact of the demonstration project could be large both for tribes and for DHHS programs. He stated that the previous three regional consultation meetings produced meaningful recommendations from participants.
Mr. Herrell then introduced W. Ron Allen, Chairman, Jamestown S’Klallam Tribe, Chair DOI TSGAC, and co-Chair of the Tribal Title VI Team representing the IHS Tribal Self-Governance Advisory Committee (TSGAC). Co-Chair Allen described the historical development of self-governance policy, stating that it originated in the late 1970’s in the Interior Department and that its concept has slowly evolved within other Departments. He said that self-governance has always moved forward methodically and that it is about empowering to exercise tribal governmental authority.
Co-Chair Allen explained that the original intent of tribes was to create a Title VI demonstration phase, but that they had to first move forward with a feasibility study due to concerns raised within DHHS. The feasibility study will then provide a set of recommendations about how to advance the demonstration project at a level that is comfortable for everyone concerned.
Feasibility Discussion
Mr. Herrell began the discussion by stating that DHHS’ central task is to create a list of feasible programs out of the more than 300 administered by the Department. He said that DHHS has developed the following feasibility criteria for discussion:
Tribal Interest
Mr. Herrell asked for comments and received consensus that tribal interest should be a criterion for determining whether a program should be included in the demonstration project.
Ken Brewer, CEO, Southeast Alaska Regional Health Consortium, said that many of the non-IHS programs within DHHS are difficult to access because there are so many bureaucratic layers that have to be pierced. Therefore, tribes need to be able to access programs that they do not currently administer.
Eileen Norbert, Executive Vice President, Kawerak, Inc., said that her organization supports the feasibility study as one of the first 30 self-governance tribes. She said her tribe operates Head Start, child care, and many family services programs. She explained that Head Start and other programs have dual reporting requirements between the state and federal governments, so she would like a more seamless process that could be achieved by including programs in a self-governance compact.
Brenda Akelkok, Bristol Bay Native Association, said that she supports two models for the demonstration project. The first would include HCFA programs in IHS compacts, while the second would include social services programs. She said that Bristol Bay contracts several DHHS programs directly, in addition to more than $1 million in DHHS programs subcontracted through the state, for a total of $4 million and 17 programs. She said that duplicative reporting requirements and administrative caps are hurting the ability of staff to serve beneficiaries, and recommended that 52 programs within ACF, SAMHSA, and other agencies be included in a demonstration project. She added that tribal shares of discretionary programs should be identified. Mr. Herrell said that the demonstration project could be designed to eliminate the state pass-through for programs, which could eliminate the dual reporting requirements issue.
Connie Wirz, Director, Kenzitze Head Start, said that one reason that the feasibility study is of vital interest is because Alaska is so unique. She added that tribes are forced to push their service populations into a “cookie-cutter” mold, despite cultural differences. She said that self-governance would help to alleviate this problem.
Helen Bolen, Contract Officer, Maniilaq Association, stated that she is interested in programs that would help to improve services, such as those within ACF and AoA. She then said that the state match requirement is a problem and recommended that the match be eliminated or otherwise modified.
Nancy Dufraine, Director of Children and Family Services, Chehalis Tribe, said that the compartmentalization of the state and federal governments, particularly within ACF programs, is a problem and recommended that service delivery be more flexible so that direct services can be enhanced and service gaps can be identified. She also suggested that there be one basic fiscal year instead of different state, federal, and tribal fiscal years.
Potential To Manage Programs
Mr. Herrell said that tribal potential to manage programs makes sense as a criterion and asked for suggestions for measuring this.
Dorthea Adams, Self-Governance Coordinator, Tanana Chiefs Conference, Inc., said that Alaska tribes need more contract support dollars than those in the lower 48 in order to be able to manage programs to their full potential. Mr. Brewer agreed, stating that there should be recognition of local demographics when developing performance expectations.
Mr. Herrell said that, during other consultation meetings, participants said that the potential to manage programs could be demonstrated through clean audits. Co-Chair Allen said that this issue has been a problem in Alaska because some programs are managed through consortia whose member tribes have not had the ability to conduct audits. Ms. Akelkok said that this is less of a problem now because NAHASDA and EPA programs require audits even of smaller tribes, and she concurred with Mr. Herrell’s statement that audits could be used as a measurement of capacity.
Impact on Beneficiaries
Mr. Herrell asked participants to provide data that shows that self-governance has a positive impact on beneficiaries. Mr. Brewer said that positive impact could be obtained through the administration of programs in a culturally sensitive way. Cynthia Navarrette, President/CEO, Alaska Native Health Board, described an EPA demonstration project in Alaska that showed positive results when ANHB provided sub-grants to tribes for operations and maintenance programs, which allowed for fewer local reporting requirements and more local flexibility in program administration.
Ms. Wirz said that her tribe has implemented a new “shadow” program for at-risk children without federally mandated performance standards, and then the federal reviewers said that they should be used as a model. She explained that tribes are accountable to internal expectations for services without federal mandates.
Ms. Akelkok stated that DHHS regional tribal shares should be identified so that tribes can use the funding to improve services and cited P.L. 102-477, Indian Employment, Training and Related Services Demonstration Act of 1992, as an example of this approach.
Ken Selby, Human Services Director, Aleutian/Pribilof Association, said that one potential impact is the expansion of the service population, something that has happened when other programs have been contracted. Mr. Herrell said that he has reviewed GAO reports that supported this statement.
Mr. Allen said that positive impact on beneficiaries should be combined with evaluation tools so that tribes are not penalized for being successful when it comes to funding.
Cost
Mr. Herrell said there is a recognition that cost could increase because smaller tribes have higher overhead, but said that Congress has required that DHHS look at the potential cost or savings of a demonstration project.
Mr. Brewer said that his tribe has found that consolidation under one administrative umbrella has allowed for more funding for program delivery, which leads to more successful programs. He said that the issue of administrative overhead versus program delivery is important, which is why coalitions such as those that exist in Alaska have been successful. He also stated that tribes have to absorb indirect costs, which should be taken into consideration by having the federal government reduce its costs commensurately.
Mr. Herrell explained that most DHHS programs do not provide service delivery, so administrative costs are included as part of the funding award. Co-Chair Allen said that programs that do provide direct services to tribes should have a proportionate reduction at the federal level when tribes take over an activity.
Mr. Brewer then stated that, if there is an underlying premise of cost neutrality with the demonstration project, then a cost reduction would have to come from somewhere if tribes have to absorb administrative costs. Mr. Herrell responded that there is not necessarily a premise of cost neutrality.
Patrick Samson, Social Services Director, Association of Village Council Presidents, Inc., stated that cost should be compared to impact of beneficiaries. Chris Bragg, Finance Administrator, Yukon Kuskokwim Health Corp., agreed and said that meeting the current unmet need will increase costs.
Robert Clark, President/CEO, Bristol Bay Area Health Corporation, said that tribes in Alaska also serve non-Natives and that the federal government should reimburse the tribes for those costs incurred. He also said that there might be tribal set-asides under each program that will allow for flexible program administration. He also said that he supports the idea of bypassing the state when it makes sense to do so.
Ms. Wirz said that many villages in Alaska are provided Head Start services through RCAP, which grossly underpays its employees. This leads to poverty in the community, which would have a direct impact on the cost issue if tribes take over Head Start and then pay its employees a higher salary. Mr. Herrell then asked for her reaction if Congress authorizes a demonstration project but does not increase a tribal share. She replied that it would still be worth it to have the ability and authority to run a program even if there were not additional funding. Mary Ellen Fritz, Head Start Director, Southcentral Foundation, said that because RCAP serves approximately 30 native villages, cost would be a huge consideration if each of these villages begins to administer their own Head Start programs.
Tribal Shares
Mr. Herrell explained that many of DHHS’s 300 programs are small, competitive, national discretionary programs. He asked how to begin to define and calculate tribal shares for these programs.
Ms. Akelkok said that Alaska could be characterized in several ways in terms of tribal shares. First, Alaska Native Corporations could be allowed to provide services to all of their shareholders. Second, federally recognized tribes could be allowed to provide services to their members. Third, services could be provided on a population basis. Mr. Herrell said that using population could be difficult for programs that are not targeted to AI/AN populations.
Ms. Dufraine suggested that population figures be combined with data showing need and current program use. Chairman Allen said that internal tribal data could be used carefully to show the greater proportionate need of Indian communities. He also said that it would be interesting to show how much of the current program dollars that pass through state governments are actually received by tribes.
Ms. Wirz then said that, for competitive programs, tribes could still compete for funding under a self-governance program rather than receiving a separate set-aside. Another participant said that there are inequitable funding distributions between tribes when population figures are used so that need should be included as a factor.
Ms. Akelkok said that part of the problem with discretionary programs is that review panels do not include AI/AN and others who are familiar with the unique issues facing tribes. Ms. Wirz agreed, citing transportation issues facing Head Start under a “full-day, full-year” mandate.
Rosalie Tepp, Council Member-Chairperson, Kenaitze Indian Tribe, said that her tribe provides services to AI/AN’s from throughout the country and asked what would happen if other tribes claimed those shares during self-governance negotiations. Co-Chair Allen recommended that she file written comments regarding this issue.
Cooperation of Stakeholders
Mr. Herrell explained that other consultation meeting participants oppose using the cooperation of stakeholders as a factor for determining feasibility.
Ms. Wirz said that the capability of other stakeholders to successfully operate programs should be taken into consideration.
H. Sally Smith, Chair, Alaska Native Health Board, said that much of the self-governance discussion is the result of work done by the Tribes during previous Administrations and expressed hope that the current Administration is willing to move the process forward. Eugenia Tyner-Dawson, Senior Advisor for Tribal Affairs, DHHS Office of Intergovernmental Affairs, said that the Secretary has spoken publicly of his commitment to the government-to-government relationship with the Tribes, and he has gone on the record in support of looking at new ways of doing business and that he will welcome tribal comments on this demonstration process because it is designed to look at a new method for doing business.
Co-Chair Allen said that the next step in advancing the demonstration project phase would have to include a discussion about getting all interested parties on board.
Legal Issues
Mr. Herrell stated that many programs could not be moved to self-governance without statutory changes. DHHS must identify those barriers, and then Congress will need to decide whether to remove these statutory barriers.
Program Discussion
Andrew Rock, DHHS Office of Planning and Evaluation, began the discussion by reviewing DHHS’s process for categorizing its more than 300 programs for the purpose of the self-governance feasibility study. He stated that there are approximately 200 social services and public health services programs, in addition to Medicare and Medicaid, and research programs. Mr. Rock then broke down DHHS programs based on eight eligibility categories:
Mr. Rock stated that the largest amount of attention involves the first category. He added that there had been comments during previous consultation regarding the creation of tribal set-asides or required collaboration on research projects that affect tribes, as well as regarding certain refugee and migrant programs under the direct benefits category that could benefit tribes.
He then explained that block grants are found within all three of these categories, and asked for input about how to handle block grant versus discretionary grant funds. He stated that block grants could be viewed as more conceptually simple in terms of determining tribal shares, since funding already is distributed on a formula basis.
Mr. Rock encouraged participants to submit comments that include specific programs within the aggregate categories that are of interest to tribes. Mr. Brewer asked if DHHS has made an effort to determine whether there are other programs that could be of interest to tribes. Mr. Rock responded that his office has encouraged DHHS agencies and programs to think about this issue and also described the DHHS self-governance website’s program catalogue, which is a result of questions to program personnel regarding tribal participation. He said that the feeling of most program personnel is to wait and see what the tribal response is, particularly among those programs that have not historically worked with tribes.
A participant asked what is keeping DHHS and other Departments from following the Executive Order on Consultation, and said that discrimination has not lessened. Mr. Herrell said that one of the benefits of self-governance is that tribal governments can use it to show how effective they can be and that the Office of Planning and Evaluation will work to explain self-governance to other DHHS agencies. Chairman Allen added that racism will always exist among a minority, but that self-governance will help to educate and gain support from the silent majority and federal departments. He also said that tribes are still asking the new Administration whether it will support the Executive Order but that there is still no response from the Administration. However, he said DHHS is embracing self-governance through the demonstration project consultation.
Ms. Akelkok said that there are some DHHS staff who would transition very well to self-governance, who would be able to assist with program consolidation, and who would be able to build bridges within DHHS.
Ms. Dufraine asked how new programs that are not included on the current DHHS list would be included in self-governance compacts. Mr. Rock said that part of the issue that needs to be discussed is how to chose programs, such as through a tiered approach that ranges from those programs that are already administered by tribes to those that need more evaluation. Ms. Dufraine then said that not all tribes are going to want to use the same program set, so maybe all 300 programs should be left on the table.
Co-Chair Allen said that tribal comments would help to guide the list and how a tiered approach could be structured. Mr. Rock said that it would not necessarily be inappropriate to file comments about how DHHS could practically administer a demonstration project involving all 300 programs.
Mr. Rock asked participants to comment on the minimum criteria that would be needed to move programs into self-governance. Mr. Brewer replied that administrative streamlining would be a factor.
Mr. Rock said that some programs may not be easy to move into self-governance and asked whether all ACF programs could be moved under self-governance or whether there are sub-groups that could be moved into a self-governance demonstration project. Mr. Brewer responded that ACF programs should remain under ACF even if they are included in self-governance compacts in order to demonstrate accountability. Mr. Rock said that, if a series of programs are combined, the question becomes whether there are potential problems in showing Congress that program objectives are being met. Ms. Norbert said that Alaska tribes already are administering diverse programs under compacts and therefore there should not be a problem with compacting other DHHS programs that currently are operated by tribes.
One participant said that compacts require a single audit act under OMB Circular A-110, so tribes are already meeting the basic requirements of program management and accountability. He asked why the Single Audit Act could not be submitted in lieu of other reporting requirements. Mr. Brewer added that
tribes list their scope of program performance (functions, services, and activities) in their IHS negotiated funding agreements, so other DHHS programs could be handled in the same way in order to demonstrate accountability.
Mr. Rock asked how negotiations would occur in Alaska, and Mr. Brewer responded that it would depend on whether the tribe had authorized regional non-profit organizations to administer their health care programs. Ms. Akelkok added that some authorizing statutes specifically state that only the regional non-profit organizations may administer the programs. Mr. Rock said that these programs would need to be identified in terms of potential legal barriers.
Zack Brink, Vice President of Operations, Association of Village Council Presidents, said that his tribe has been looking at including tribal TANF and Head Start in its “477” (P.L. 102-477, Indian Employment, Training and Relations Services Demonstration Act of 1992) program, but that it would rather include these in a compact. To follow up, Mr. Rock asked participants to comment on tribal TANF administration. Mr. Brink replied that the issue is using compacting to increase funding.
Ms. Akelkok added that there are a number of tribal members that need job training, and Head Start could be used to provide these employment opportunities because TANF funds are so limited and the time limit does not apply in her area.
Design Discussion
Estelle Bowman, Consultant, DHHS, described categories developed by DHHS in terms of demonstration project design:
Regulatory Waiver Authority
Mr. Brewer asked whether DHHS is looking for comments regarding which regulations would need to be waived for the demonstration project. Ms. Bowman replied that this is what DHHS would like information about. He also said that the IHS self-governance demonstration project had a regulatory waiver authority, but some IHS departments were extremely reluctant to grant it. Geoffrey Strommer, Attorney, Hobbs, Straus, Dean & Walker, said that the Title V regulatory waiver authority had strict criteria based on this past experience.
Mr. Clark said that his concern is that the Secretary should have waiver authority, not have it distributed to different agencies.
Program Redesign Consolidation Authority
Ms. Bowman said that Alaska tribes are already using program redesign in its IHS self-governance compacts.
Self-Governance Eligibility
Ms. Bowman indicated that San Francisco consultation participants expressed strong support for using the Title V definition in determining eligibility under the demonstration project because it is such a broad definition. Mr. Herrell said that the definition requires that the organization have several years of unaccepted audits and that the organization must be a federally recognized tribe.
Ms. Adams recommended that there be a step-by-step outline of eligibility requirements. Mr. Strommer said that regulations will deal with this issue, as it is being currently discussed during the Title V rulemaking process. However, there is some tension between those tribes that do not want narrow regulations and those that want more specific guidelines. Paula Williams, Director, IHS Self-Governance Office, also referred her to the Self-Governance Communication and Education Committee website for technical assistance.
Mr. Clark recommended that there be programs within each category included in the demonstration project, such as refugee assistance and research. Ms. Bowman responded that a similar suggestion was made at San Francisco, in which the first two categories would have all programs included in the demonstration project, with a program in each of the other categories included, as well.
Length of Demonstration
Ms. Bowman said that most feedback involves a tiered approach that would allow for some programs to move more quickly than others, and asked for comments regarding this issue. Ms. Akelkok said that five years or longer would be better. Ms. Bowman responded that some tribes feel that they need technical assistance first, which would make the demonstration project longer, and that other tribes have indicated that they wanted a shorter window so that they could move forward. This situation is the impetus for the tiered approach. Mr. Brewer said that the tiered approach would make sense both on a tribal basis and for a tribe’s own programs.
Mr. Brewer asked about the start date of a demonstration project. Ms. Bowman explained that the feasibility study recommendations will be submitted to Congress in February 2002 but that Congress would need to pass enacting legislation before it could begin. C. Juliet Pittman, President, SENSE, Inc., added that tribes probably would be ready to present draft legislation by the time the report is submitted to Congress.
Ms. Akelkok recommended that a Federal Register notice be published when the demonstration project is authorized.
Ms. Dufraine asked whether there would be a limited number of participants under the demonstration project and whether there will be political problems with enacting the legislation. Mr. Strommer and Ms. Pittman said that it is too soon to tell, and these issues would need to be discussed as the implementing legislation is drafted. Mr. Herrell said that it would be up to Congress to decide what to do with the list of programs that DHHS develops, but Mr. Strommer indicated that Congress historically has adopted recommendations if tribes and DHHS come forward with a consensus recommendation.
Quality Assurance/Accountability
Ms. Bowman said that most of the participants have already said that they are incorporating quality assurance in their negotiated funding agreements and that the current Single Audit Act requirement provides accountability.
She also said that other regional consultation meetings have recommended that there be a single point of contact within DHHS for the demonstration project in order to provide federal accountability.
Ms. Wirz recommended that programs within the region form quality assurance and accountability teams for objective review.
Other
Mr. Clark asked what efforts are underway to educate Congress about the demonstration project. Mr. Herrell replied that DHHS likely would provide briefings to the relevant Committees before the final report is submitted to Congress. Mr. Rock explained that federal employees can not lobby Congress, though they can provide educational briefings. Co-Chair Allen stated that there would be a tribal caucus at the end of the report drafting process, at which point a tribal advocacy team will be established for working to advance the proposal on Capitol Hill.
Ms. Bragg asked about technical assistance for tribes under federally funded grant programs. She also inquired about the relationship between tribes and federal project officers, and said that there will need to be education within DHHS regarding self-governance in addition to Congress. Mr. Herrell asked what type of administrative structure would work best for tribes and that the technical assistance that already exists as part of grant programs could be part of the demonstration project. Ms. Bragg replied that she wasn’t sure of the answer.
Co-Chair Allen said that the success of the project will depend on pushing the envelope and reminding federal officials at all levels about the commitment to self-governance.
Ms. Adams raised a concern about block grants, saying that her organization, which represents more than 40 tribes, could see reduced funding because it currently receives 17 different program grants but might not be eligible for funding under a block grant. Mr. Rock said that, if the “477” program were used as a model, then there would be a stipulation that tribes could not receive any less funding. Co-Chair Allen said that a block grant approach could be structured differently under a Title VI block grant and asked for additional written comments on this issue. He also said that there may need to be differences regarding the federal-tribal and state-tribal components of DHHS program administration in order to meet local needs.
Wrap-Up
Mr. Herrell concluded the meeting by describing what will occur next. The state and local government and beneficiary representatives meetings will be held June 6th-7th in Washington, D.C. Then, there will be a national wrap-up consultation meeting with all interested parties on June 14th in Washington, D.C.
He indicated that the state and local governments and constituency groups will want to see tribal views before making comments on the demonstration project, so DHHS will provide a summary to them prior to the June 6th & 7th meetings.
Written comments will be accepted until July 1st and should be submitted to:
Dr. Delores Parron
Office of the Assistant Secretary for Planning and Evaluation
Room 447D
201 Independence Avenue SW
Washington, DC 20201
Email: SELF-GOVERNANCE@OSASPE.DHHS.GOV
Comments will be posted as they are received on the DHHS self-governance website: http://aspe.hhs.gov/SelfGovernance
Comments on the draft report will be due in September 2001, with the submission of separate views to the final report due in December. The final report will be submitted to Congress by February 18, 2002.
Ms. Wirz recommended that DHHS attends the tribal Head Start directors meeting in July since there are more than 400 attendees at the conference who will be interested in this issue. Co-Chair Allen recommended that there be an opportunity for DHHS to present a Title VI summary on the agenda.
One of the participants expressed a concern that state and local governments are being consulted. Co-Chair Allen said that states and beneficiaries have to be consulted because the programs affect them. He said that the objective is to alleviate fears on their part.
Co-Chair Allen then ended the meeting by saying that Alaska tribal views will be very important because of the experience of the tribes in running their own programs. He then said that he supports “aggressive incrementalism” as a way to move forward and that the demonstration phase is just the beginning of the process