National Self-Governance Feasibility Study
Regional Consultation Session
San Francisco, CA

May 1, 2001

The third Tribal Self-Governance Feasibility Study regional consultation was held on May 1, 2001, in San Francisco, California. Approximately 50 people attended the consultation, which was jointly chaired by the Department of Health and Human Services (DHHS) and the TribalSelf-Governance Advisory Committee (TSGAC).

Opening Remarks

Mike Herrell opened the meeting by providing an overview of the agenda and introducing the meeting’s co-chairs, Dr. Delores Parron, Assistant Secretary for Planning and Evaluation, and W. Ron Allen, Chairman, Jamestown S’Klallam Tribe, DOI TSGAC Chairman, and co-Chair of the Tribal Title VI Team.

Dr. Parron welcomed the participants and described self-governance as a fairly new concept for most of DHHS. She said that the feasibility study is timely to the extent that DHHS has not fully met tribal needs and that Secretary Thompson has demonstrated interest in tribal concerns. Several weeks ago, Secretary Thompson and his senior staff met with tribal organizations and committed to involving them in the budget formulation process of the Secretary.

Dr. Parron described the feasibility study as a partnership with the TSGAC and said that the purpose of the consultation meetings is to begin a dialogue with tribes. She indicated that DHHS is committed to making sure that all opinions are heard, and the Department will create an objective record that will be used to make a checklist of recommendations that are made during the regional consultations.

Co-Chair Allen described the development of the self-governance policy as an empowerment initiative that began approximately 12 years ago and said that self-governance has proceeded in small steps, first with the BIA and Interior Department, then with the Indian Health Service. When Title V was made permanent last year, Congress wanted to conduct a study about moving self-governance to other DHHS programs to make sure that all parties are comfortable with how to proceed. He said that, because DHHS is uncharted water, the consultation meetings are designed to look at how to shape the demonstration project. He stated that the process will occur one step at a time, which moves tribes further toward empowering tribal governments by providing them with more resources and more discretion for program administration.

Mr. Herrell then talked about the feasibility study, stating that Congress asked DHHS to recommend whether there should be a self-governance demonstration project and which programs should be included in it.

Feasibility Discussion

Mr. Herrell began the discussion by stating that DHHS must first determine how to create a list of feasible programs out of the more than 300 administered by DHHS. He outlined the feasibility criteria developed by DHHS for tribal discussion:

Tribal Interest

Mr. Herrell asked whether there was consensus that tribal interest should be the starting point for determining feasibility. Ed Fox, Executive Director, Northwest Portland Area Indian Health Board, asked whether programs would be excluded from the list if no tribes commented on them and said that the default position should not be exclusion. Mr. Herrell said that DHHS must create a list at some point and the default might be needed to exclude programs unless tribal comments have been made regarding them. He added that this approach might be reasonable for a demonstration project, but that it would not necessarily prevent additional programs from being included in a permanent program. Mr. Fox suggested that tribes might want to look at the programs that provide the most resources to tribes.

Jim Crouch, Executive Director, California Rural Indian Health Board, followed up on Mr. Fox’s comments by asking if legal barriers will continue to be in place during a demonstration phase, even if they are identified by DHHS in the report to Congress. Mr. Herrell responded that Congress likely would either need to build in statutory or regulatory waiver authority into a demonstration project implementation bill.

Jean Fleury, HCFA Region IX AI/AN Advisor, raised a concern that tribes are talking about approaching the demonstration project on a program-by-program basis rather than in terms of a global DHHS mission.

Daniel Belcourt, Attorney, Chippewa Cree Tribe, asked how the list of programs would be included in the report and whether excluding a program from the demonstration project list would preclude a tribe from compacting that program in the future. Dr. Parron replied that exclusion from the demonstration project would not close the door on future program assumption. Mr. Herrell added that tribes will have the opportunity to comment on the list of programs in the draft report. Chairman Allen cautioned that tribes will have to work within practical impediments, such as those surrounding the ANA, which has a small amount of money and which serves non-tribes in addition to tribal governments. He said that tribes will need to ask how many tribes currently access particular programs and then how to divide up the funding received in tribal shares.

Mr. Herrell said that there may be several types of programs that might not be practical to include in the demonstration project. He described small competitive demonstration programs, saying that it may be difficult to determine tribal shares in these programs. Other programs, such as Maternal and Child Health, have “grandfathered” grant amounts which makes it difficult to identify tribal resources.

Charles Calica, Chief Operating Officer, Confederated Tribes of Warm Springs, said that part of the landscape with respect to tribal interest is understanding tribal governments. One end of the spectrum involves legal principles, treaty principles, sovereignty, and the trust relationship, while the other end is the need to provide services to tribal members. He stated that current federal funding levels and forcing tribes into relationships with states are not meeting tribal needs. He said that one approach in Indian Country is to use joint ventures, the P.L. 93-638 contracting process, and self-governance to make sure that programs are efficient and effective in delivering services.

Cooperation of Non-Tribal Stakeholders

Mr. Herrell postulated that there may be opposition from existing stakeholders and asked how much tribes are willing to dig in if powerful interests oppose a particular program from being included.

Daniel Jordan, Self-Governance Coordinator, Hoopa Valley Tribe, said that tribes are used to dealing with this issue and feasibility should depend on statutory eligibility and intent, not on political interests. Geoff Strommer, Attorney, Hobbs-Strauss, said that one Title IV lesson is that a demonstration project could be structured so that a program assumption be mandatory if certain requirements are met. General feeling is that opposition should not be a basis for feasibility.

Cost

Mr. Herrell said that Congress asked DHHS to look at the potential costs and savings of a demonstration project, and DHHS is attempting to collect data on cost based on past self-governance initiatives. He asked whether cost should be a factor, if DHHS concludes that there would be a significant federal cost to moving a program into the demonstration project.

Mr. Jordan asked that cost be combined with impact on beneficiaries.

Mr. Crouch said that cost is a historical problem of P.L. 93-638 policy, because some people talk about it in terms of potential federal savings, then the indirect cost issue allows some to say that contracting increases federal costs. He recommended that DHHS consider the economic reality of low efficiency associated with smaller tribes and said that cost savings are not necessarily true.

Ms. Fleury said that the consistent under-funding of tribal programs must be taken into consideration. Robert Brisbois, Council Member, Spokane Tribe, echoed this view by talking about health status in relation to DHHS programs that do not have AI/AN beneficiaries.

C-Chair Allen was asked for his views regarding contract support in the context of the demonstration project and replied that the report will include a section that discusses contract support so that there will be recommendations on how tribes can access contract support funding for demonstration project. Mr. Herrell said that some programs have indirect costs caps, while others use negotiated rates, and that start-up costs will be another issue that will need to be discussed.

Mr. Brisbois asked whether DHHS agencies are involved in the demonstration project, and Mr. Herrell replied that there is an interagency workgroup, but, that it is not making written recommendations. Dr. Parron said that the self-governance demonstration project will require a different kind of distribution of existing resources in terms of technical assistance, partnerships, and program design/eligibility requirements. She further stated that the bottom line is increasing the ability of tribes to access programs, because this will make a difference to tribes in the future.

Mr. Jordan said that the government-to-government relationship is unique, so DHHS should look at cost-sharing from a different perspective or at least continue to authorize tribes to use federal funds to meet matching requirements. Co-Chair Allen then urged participants to submit written comments so that there is documentation regarding this issue as the process moves forward.

Tribal Potential to Manage Programs

Mr. Herrell asked participants to define the tribal potential to manage programs. Robert Scabby, Self-Governance Coordinator, Salt River Pima-Maricopa Indian Community, said that tribes have experience in managing IHS and BIA programs and described his Tribe’s Bureau of Reclamation project as an example.

Co-Chair Allen commented that the notion of self-governance is a Republican theme, and tribes need to balance the empowerment of tribes with the federal trust responsibility. Some tribes are very sophisticated, but others are just now establishing their governmental capacity, so there is a need to make sure that tribes can move at their own speed.

Program Discussion

Andrew Rock, Self-Governance Analyst, Office of the Secretary, DHHS, began the discussion by describing the process by which DHHS has categorized its 300-plus programs for the purposes of the self-governance feasibility study.

Mr. Rock said that there are approximately 200 social services programs within DHHS, as well as public health services programs, Medicare and Medicaid, research programs. He asked participants to state the number of DHHS programs that they currently participate in, and several respondents said that they participate in between 50 and 100 programs. Mr. Rock then described DHHS programs based on eight eligibility categories:

Mr. Rock said that it will be a challenge to work with programs that are smaller and those that have a small number of AI/AN participants. Mr. Jordon raised a concern regarding the ability of tribes to assume programs that are so small that the funding provided will make it extremely difficult to administer the programs successfully. Mr. Crouch added that reporting requirements should be commensurate with the amount of funding provided to tribes.

Mr. Rock said that the largest amount of attention is focused on the first category, followed by the second, then the third category. He indicated that, with respect to the first two categories, some authorizing statutes do not specifically mention tribes but instead they have been deemed eligible under “local government” eligibility.

Mr. Rock asked participants to provide their perspective on how to handle state block grant funds versus discretionary grant funds. One participant asked whether the programs in the third category specifically authorize only states as applicants and whether there are comparable programs for tribes. Mr. Rock said that, though TANF and some other programs have a tribal program parallel, that this is not the norm.

Mr. Brisbois said that state pass-through funds create another layer of bureaucracy and that such funds should be provided directly to tribes based on the government-to-government relationship. He also said that, unless tribal governments have a good relationship with the state, it is difficult to obtain discretionary funds that are allocated through states. Mr. Crouch said that tribal set-asides could be calculated and distributed based on a per-capita basis with additional weight based on need and burden. Mr. Rock asked whether data to support these types of calculations would be available. In response, Steven Gobin, Government Affairs Liaison, Tulalip Tribes, said that there is a lack of reliable data because state programs have failed to penetrate Indian Country, so it will be difficult to ascertain true tribal need.

Mr. Fox asked whether the demonstration project could authorize tribes to negotiate with states to enter into set-asides with tribes? Mr. Rock responded by asking for written comments. Mr. Strommer stated that he thinks that a series of issues involving set-asides would need to be carefully considered, because set-asides would affect self-determination contractors and direct service tribes.

Charles Bleskan, Consultant, Mississippi Band of Choctaw Indians, said that programs should be put into block grants and then tribes should be allowed to choose which block grants to participate in. He recommended that DHHS consider making tribes a 51st state for a block grant that would then be administered by IHS. Dr. Parron said that this concept would need to be further developed as the process moves forward.

Mr. Rock asked whether, for Title I contractors, would it be advantageous to move to self-governance. Mr. Bleskan replied that his clients looked at self-governance because they were already successful at 638 contracting and wanted to determine if there would be benefits under self-governance to the tribal government and its service population. Mr. Jordan said that a historical difference between self-governance and Title I is the attitude of agencies and that, if agencies are reluctant to do business under Title I, then tribes consider self-governance because it is more flexible.

One participant said that border tribes, such as the Tohono O’odham Nation, work with refugees and entrants, so they should be eligible for funding.

Mr. Bleskan said that tribes might want to be included in research programs because there have been instances of CDC involvement with tribes when there are disease outbreaks. He also said that one Nevada tribe has a cooperative agreement with CDC to administer a “downwind” program on behalf of a number of tribes. He said that some tribes would be interested, but that they would need to be reasonable in terms of program administration. Mr. Brisbois said that tribes in the Hanford Reach Area have worked with the CDC on similar issues and that there are other research areas of interest to tribes in the Pacific Northwest. Mr. Crouch said that another kind of research that resonates with tribes is health delivery systems and outcomes research. Mr. Rock asked for additional advice on how research would be administered under self-governance, where there are specific areas of interest by certain tribes. He said that it would be easier to integrate social services programs administratively than to do this with research programs, because the activities are different. Another possible outcome would be to advance this idea to work on a separate effort to facilitate additional tribal research. Mr. Bleskan recommended additional coordination between NIH and the DHHS Intergovernmental Affairs Office to promote research in Indian Country. Eugenia Tyner-Dawson, Senior Advisor on Tribal Affairs, DHHS Intergovernmental Affairs Office, said that tribes should consider including this issue in their budget formulation discussions with Secretary Thompson.

Design Discussion

Estelle Bowman, Consultant, DHHS, outlined the following categories developed by DHHS for consideration in developing the design of a demonstration project:

Regulatory Waiver Authority

Ms. Bowman said that she had heard from tribes attending previous consultation meetings that a regulatory waiver authority is necessary. This position was reiterated by the tribal participants.

Joni Ramos, Accounting Manager, Salt River Pima-Maricopa Indian Community, asked whether some current reporting requirements would be continued under the demonstration project. Ms. Bowman responded that tribes should submit comments regarding reporting requirements that could be streamlined under a waiver authority.

Mr. Bleskan asked whether regulatory waiver authority could be used to change eligibility requirements for service populations. Mr. Herrell said that, generically, participants in the previous consultation meeting have viewed waiver authority as very important, and encouraged specific comments on this issue.

Self-Governance Eligibility

Ms. Bowman stated that an attorney attending the Nashville regional consultation session recommended that the Title V definition be used for the demonstration project because it is sufficiently broad, and sought comments from participants.

Ms. Bowman also discussed a proposal from the Nashville consultation meeting to create separate tiers for the demonstration program. The first would include those programs already operated by tribes, such as Head Start. The second level would include DHHS programs that mirror programs that are already administered by tribes. The final level would include those programs that would need technical assistance to move forward. In Minneapolis, a different tier approach was discussed. The first tier would include those programs that are already run by tribes, while the second would include all programs that tribes have expressed an interest in administering.

Ms. Bowman said that there seems to be consensus from the tribes that they should be able to pick programs freely from the list of DHHS programs and asked whether there are recommendations about the number of programs to include in a demonstration project. Mr. Crouch recommended that all programs in the first two categories be included, along with one from each of the other categories.

Mr. Brisbois asked if the Title V language that encourages states to work with tribes on self-governance could be used for the third program category. Mr. Strommer said that it may be used as a vehicle to transfer funds to tribes, but cautioned that, because the Title V language is discretionary, it depends on state support to be effective.

[Comments by Mr. Stephens. Need to follow-up to clarify his comments.]

Quality Assurance and Accountability

Ms. Bowman said that many tribes have stated that they already have quality assurance and accountability tools and that they would like to develop their own measures. She asked participants to submit data to support this statement, since Congress required quality assurance and accountability to be examined as part of the feasibility study. John Stephens, Programs Administrator, Swinomish Tribe, said that Title VI requires the Secretary to consider quality assurance but it doesn’t mandate that additional quality assurance provisions be drafted. Mr. Herrell and Ms. Bowman agreed with the assessment.

Other Project Design Issues

Ms. Ramos asked whether various program cycles could be included in one agreement. Ms. Bowman responded that this issue would need to be discussed in the context of redesign authority.

Anselm Roanhorse, Special Assistant to the IHS Navajo Area Director, raised issues regarding the establishment of tri-state Medicaid agency and the Tuba City Service Unit Managed Care demonstration project, asking if these projects could be implemented administratively as part of a demonstration project. Ms. Bowman asked that they submit written comments on this.

Mr. Bleskan said that one of the advantages of self-governance is that tribes can draw down their lump-sum funding at one time, which allows tribes to use interest for program purposes. He recommended that this authority be included in a demonstration project.

Mr. Crouch said that the project design issues should not even be discussed, because they all need to be included in a demonstration project, for example waiver authority, annual funding agreements, and eligibility. He then said that it is not tribal intention to give up anything with respect to self-governance. Ms. Bowman reiterated that DHHS was required by Congress to look at these issues.

Alma Pearson, Salt River Pima-Maricopa Indian Community, raised a concern that, because Head Start has an annual base funding increase, any locked-in funding level could be a problem. Mr. Herrell replied that, if the Title V process is used, then an increase to the base could be negotiated annually.

Ms. Fleury stated that she is concerned that DHHS is not looking broadly at Indian health and that the program design questions are designed to impose the current DHHS administrative structure on tribes. She then proposed the creation of a new administrative structure that would essentially be a “tribal DHHS” component to coordinate all DHHS programs.

More issues involving base funding, administrative and overhead costs, and divisibility were brought up by participants, particularly with respect to the ability of tribes to access administrative dollars except those used for inherent federal functions. DHHS said that there is no clear interpretation within the Department regarding inherently federal functions. Co-Chair Allen said that every one of the functions in the Interior Department has to be reviewed by the Solicitor before determining tribal shares, and hopes that this process will be avoided by DHHS. He also urged tribes to submit written comments regarding divisibility and other related issues.

Mr. Crouch expressed a concern that it will be difficult for tribes to try to access discretionary funding that other constituencies already receive and asked under what basis a California tribe could make a claim for accessing a discretionary grant program that it has never applied for. Co-Chair Allen replied that first, there would need to be a determination that the tribe had a legitimate right to access such funds. Then, the next step would be to determine how those funds could be accessed, since it would necessarily reduce the availability of competitive discretionary funds. He also said that tribes will need to work on this issue after the feasibility study is complete and the legislative drafting phase begins.

Evaluation

Mr. Jordan said that two independent evaluations of self-governance were performed, which helped to show the different approaches taken by tribes and to show that tribes have adapted self-governance successfully to meet their own needs.

Mr. Scabby discussed BIA annual trust evaluations and stated that it is difficult for BIA to perform its duty. He recommended that there be one evaluation for the demonstration project period, a view that was echoed by Mr. Jordan. Paul Alexander, Attorney, Alexander & Karshmer, said that the BIA system is very different because it deals with physical trust assets and that it has no application at DHHS.

Program Redesign Authority

Several participants said that it is important to include the flexibility to combine programs with similar functions and goals, and Mr. Jordan recommended a single accountability and reporting system for multiple programs. Greg Anderson, Port Gamble S’Klallam Tribe, said that overhead costs would be too large if there were separate reporting requirements for multiple programs included in a demonstration program.

Wrap-Up

Mr. Herrell concluded the meeting by describing what will occur after the regional consultation meetings conclude on Thursday, May 3rd. 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.

Mr. Roanhorse raised a concern that there was not a consultation meeting in the Southwest, and asked that one be scheduled. Cecile Greenway, Human Services Director, Lower Elwha Klallam Tribe, expressed her concern that tribes are not being provided with information about the constituency group meetings in Washington, D.C. Another participant said that non-self-governance tribes should be given more information about the feasibility study and be told that all tribes are invited to participate in the process.

Co-Chair Allen ended the meeting by stating that each consultation meeting has improved the discussion surrounding the feasibility study and that this issue is about creating opportunity, not about taking anything away from anybody.

Dr. Parron closed by stating that she would like to see the feasibility study result in a process that allows tribes to design a program that will serve tribes best. She urged participants to file written comments that contain specific examples and recommendations.

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: SELFGOVERNANCE@OSASPE.DHHS.GOV

As they are received, comments will be posted 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.