National Self-Governance Feasibility Study
Regional Consultation Session
Minneapolis, MN
April 13, 2001
The first Tribal Self-Governance Feasibility Study regional consultation session was held on April 13, 2001, in Minneapolis, Minnesota. Approximately 60 individuals participated in the meeting, which was jointly chaired by the Department of Health and Human Services (DHHS) and the tribal chairs of the Tribal Self-Governance Advisory Committee (TSGAC).
Opening Remarks
Michael Herrell, DHHS Division of Planning and Evaluation, opened the meeting by reviewing the consultation agenda and summarizing Title VI of the Tribal Self-Governance Amendments of 2000, which requires DHHS to study the feasibility of a self-governance demonstration project covering non-Indian Health Service programs administered by DHHS. He stressed that the series of regional meetings are consultation sessions designed to receive feedback from tribes on this issue.
Dr. Delores Parron, Deputy Assistant Secretary for Planning and Evaluation, provided welcome remarks. She described the purpose of the consultation meetings as two-fold. First, she said that they are designed to inform tribes about the feasibility study and its potential impact on tribal governments. Second, she said that the consultation process will open a dialogue with tribes on how DHHS will determine feasibility, program inclusion, and project design.
Dr. Parron also outlined the process by which the self-governance feasibility study will proceed. Following the consultation meetings, she will recommend a course of action to Secretary Thompson, who will issue the final Title VI report to Congress. Congress then will ultimately decide whether to expand self-governance.
In his opening remarks, Merle Boyd, Second Chief, Sac & Fox Nation, IHS TSGAC Chair and Co-Chair, Title VI Tribal Team, said that he believes that DHHS wants to open doors wider than any other agency on consultation. As such, he encouraged tribal participation throughout the Title VI consultation process, including the submission of written comments.
W. Ron Allen, Chairman, Jamestown S’Klallam Tribe, DOI TSGAC Chair and Co-Chair, Title VI Tribal Team, echoed these sentiments and provided additional background information about the legislative history of the feasibility study. He indicated that Title VI includes a feasibility study for a self-governance demonstration project due to hesitation by Congress and DHHS that tribes were ready to administer other DHHS programs under a demonstration project. He indicated that, while the study report probably will include “baby steps” on how a demonstration project can proceed, these steps will be progressive and productive for tribes.
Feasibility Discussion
Mr. Herrell began the discussion by stating that DHHS needs a basis to judge whether it is feasible for other DHHS programs to be included under self-governance, using child welfare programs as an example. He then outlined the following ideas for feasibility criteria developed by DHHS:
Potential To Manage Programs
Oran Beaulieu, Health Planner of the Red Lake Band of Chippewa, outlined a number of DHHS programs currently administered by his Tribe, such as Head Start and alcohol and substance abuse programs, and said that all programs that tribal governments already operate should be included in a demonstration project because tribes have shown the potential to manage them. He also indicated that programs under which tribes are not receiving funds, but under which they are eligible for funds, should be included.
In response to a DHHS question regarding whether to include programs under which tribes are not eligible for funding, several tribal officials commented that the programs should be included if tribes could manage them more efficiently than the federal government due to the potential to consolidate and integrate programs.
Consensus was reached among participants regarding the potential to manage targeted programs as criteria for determining feasibility.
William Jones, Chairman of the Lummi Nation, raised the issue of including “need” as an element of tribal potential to operate programs. He also said that tribes might need assistance to make a smooth transition to self-governance for other DHHS programs, regardless of a tribe’s capability to manage them. Mr. Herrell responded that, if tribes are not experienced in running a particular program, but there is tribal need to operate that program, there could a design element on technical assistance.
Rhonda Butcher, representing the Citizen Potawatomi Nation, suggested that the demonstration project include two tiers of participants. The first tier would include tribes that have already operated non-DHHS programs, because they could show programmatic and administrative capacity. The second tier would be comprised of tribes that have not administered DHHS programs in the past, who would submit a document that outlines past history and a capacity-building plan.
Impact on Beneficiaries
With respect to the issue of impact on beneficiaries, Mr. Herrell said that it would be up to DHHS to determinate the veracity of information received through additional consultation meetings with stakeholders regarding whether the potential impact on beneficiaries could be negative.
In response, Norberto Sanchez, Executive Health Director, Council of Athabascan Governments, said that many current ways of measuring the impact of programs on beneficiaries are not feasible or practical for tribes and encouraged that any impact be measured in a way that is relevant to tribes.
Cost
Mr. Herrell discussed cost issues as a potential factor in determining feasibility. As an example, he raised the possibility of tribes’ needing additional start-up costs for programs that would be included in a demonstration project. He asked whether cost neutrality to the federal government should be required.
Patricia Stanley, Executive Director, Council of Athabascan Tribal Governments, said that consolidation of DHHS programs would lower costs to tribes and to DHHS because of streamlined administrative requirements.
Co-Chair Boyd said that, for those programs with high costs, maybe grant set-aside for tribes should be considered as an alternative to inclusion in a self-governance demonstration project.
Several tribal participants raised objections to the inclusion of cost neutrality as a factor in determining feasibility. Mr. Sanchez recommended that a weight system be applied to factors with beneficiary impact having the greatest weight.
Consensus was reached that a positive impact on beneficiaries should outweigh cost.
Legal Barriers
Mr. Herrell asked whether tribes would like DHHS to consider modifying legal barriers that make some programs unavailable to tribes in the context of the Title VI demonstration project or whether they would prefer that DHHS focus on programs that will be easier to include.
Several tribal representatives recommended that waivers be examined as a way to overcome legal barriers.
Tribal Shares
Mr. Herrell indicated that it would be difficult to identify tribal shares in very small DHHS programs and asked whether DHHS should include them in a demonstration program.
Dan Duame, Counsel, Aleutian/Pribilof Island Association, recommended that, when looking at small programs, DHHS consider how to reprogram and redesign them. This would allow DHHS to identify tribal shares through the consolidation with other programs while giving tribes more flexibility in administering them.
Cooperation of Other Stakeholders
Consensus was reached that the views of other stakeholders should not be used as a factor in determining whether a program is feasible for inclusion in a self-governance demonstration program.
Program Category Discussion
Andrew Rock, Self-Governance Analyst, Office of the Secretary, DHHS, described the process by which DHHS has categorized its programs in order to evaluate whether they should be included in a self-governance demonstration program.
DHHS operates more than 300 programs that spend one of every four federal dollars. Of DHHS programs, 200 programs are identified as “services;” 117 are “research;” and seven are “financing.” Of these, programs included under the broad category of “services” comprise the major block of what tribes are already administering.
Mr. Rock also described DHHS programs in terms of eligibility. Of all DHHS programs, 190 have American Indian/Alaska Native (AI/AN) beneficiaries. The following broad eligibility categories were described, with sample programs identified for each category.
After summarizing each program category, Mr. Rock asked to what extent DHHS should consider programs included in each category. Based on the feasibility discussion, he said that those programs under which tribes currently receive funding would be the highest target of opportunity, followed by those programs with AI/AN eligibility under which tribes currently do not receive funding. The first category includes 40 programs, and the second includes 60.
Chairman Jones raised the issue of state block granting and said that tribes should not have to go through states to receive funding. His comments were reinforced by Mr. Beaulieu expressed concerns about funding mechanisms under the social services block grant program as well as the Children’s Health Insurance Program.
Mr. Sanchez supported the recommendation to include programs under which only states are eligible to apply and said that Medicare and Medicaid managed care programs should be included in the demonstration project because tribes have established provider networks, client population, community-wide focus, and the necessary infrastructure.
Laurel Keenan, Health Director, Bay Mills Indian Community, expressed support for including Administration on Aging long-term care and Head Start programs in a demonstration program.
In summarizing tribal comments, Mr. Rock stated that it is unclear whether DHHS would need to take into account the size of a tribe in determining its ability to operate a Medicaid managed care program.
Myra Munson, Attorney, Sonosky, Chambers, Endreson, Sasche, Miller & Munson, stated that, while there have been many hurdles to tribes’ taking over Medicaid, there have been significant improvements in terms of how tribes and states interact on this issue. However, she also indicated that, because many Health Care Financing Administration (HCFA) rules fail to deal with the uniqueness of tribes and tribal health programs, it becomes virtually impossible for tribes to meet HCFA criteria. Because of this problem, she suggested that the feasibility study look at HCFA rules to examine whether they should be modified to provide tribes with more meaningful participation in Medicaid and with the ability to provide culturally appropriate services.
In conclusion, Mr. Rock said that he had heard strong points in favor of including all programs under which tribes currently receive funds and those under which they are potential beneficiaries, as well as programs that currently include states as the only eligible applicant but that include AI/AN’s as eligible beneficiaries. Taken together, these categories include 189 programs, so he asked tribes to consider whether and how to narrow this list down for an initial demonstration project.
Project Design Discussion
Estelle Bowman, Consultant, DHHS outlined the following categories developed by DHHS for consideration in developing the design of a tribal self-governance demonstration program:
Length of Demonstration Program
Mr. Sanchez suggested that the demonstration project should last for not less than three, but no more than five, years.
In response, Co-Chair Allen concurred with the recommendation of a three-year minimum, stating that both the Interior Department and IHS self-governance demonstration projects showed that several years of experience on data and programs are necessary. However, he expressed concern with a five-year maximum length, because some tribes might be ready to operate permanent DHHS self-governance programs prior to that time. He also said that one of the early problems with self-governance was that insufficient time was allocated to conduct the demonstration phase, gather information for a report, and then enact permanent legislation. As such, he urged DHHS to think through how long it will take to gather data, issue a report, and enact permanent legislation before setting a sunset date.
Program Redesign Consolidation Authority
Co-Chair Allen also stated that redesign authority is a fundamental tenet of self-governance and that tribes need the ability to adjust programs to make them more effective. This, he said, ties in to quality assurance, accountability, and evaluation.
Eligibility
Gary Williams, Organized Village of Kake, recommended that eligibility be expanded so that all tribes that are ready to participate in a demonstration program can do so.
Co-Chair Allen said the he believes that eligibility criteria should be straightforward. As such, current self-governance tribes should automatically be included. However, while he does not necessarily believe the number of eligible tribes should be narrowed, Co-Chair Allen asked whether DHHS should constrain how many should be eligible for a particular DHHS program based on the capacity of that program to negotiate funding agreements.
Ms. Keenan recommended that Title I contractors should be able to participate in the demonstration program and that the demonstration program be open to all tribes, regardless of their size.
In response to a question about whether tribes would be required to participate in IHS self-governance to enter into self-governance agreements for other DHHS programs, Co-Chair Allen said that the criteria should be whether a tribe has a clean audit record, not whether it chooses to operate BIA or IHS programs through self-governance.
Mr. Herrell asked that tribes continue to consider eligibility design and forward their recommendations regarding this issue to DHHS.
Quality Assurance/Accountability
Mr. Sanchez said that tribes already have mechanisms in place to administer programs and that DHHS should use existing evaluation criteria for the demonstration program. In response, Ms. Bowman asked that tribes provide DHHS with information about quality assurance/accountability mechanisms currently used by tribes.
Mr. Herrell asked whether the Single Audit Act should be used to measure accountability.
In response, Co-Chair Allen said that the issue with using the Single Audit Act is that it fails to include information about whether funds were used to meet needs effectively, instead only showing whether funds were spent legally. He said that the additional information is needed in order to argue for additional resources.
Mr. Williams concurred with this comment and said that extra attention should be devoted to accountability in order to develop the best way to advance interests through a reporting mechanism.
Ms. Bowman stated that, because the Secretary is mandated by law to consider accountability, more weight is provided to this issue. She asked tribes to provide additional comments either through participation at the consultation meetings or through written comments.
Ms. Munson said that one way to think about accountability would be for tribes to adopt equivalent standards showing that they have implemented similar programs without jeopardizing health and safety.
Chairman Jones stated that, as sovereign nations, tribes have their own accountability measures built in.
Evaluation
Co-Chair Allen said that, when tribes began to administer BIA programs under self-governance, they seemed to be held to higher standards then the BIA itself. He, and other meeting participants, felt that tribes should not be held to higher standard than the federal government.
Chairman Jones said that existing programs should be evaluated so that tribes can measure their effectiveness prior to assuming them under a self-governance demonstration program. He recommended that programs be looked at holistically by asking how they can be strengthened and corrected.
Ms. Munson said that it is important for DHHS to recognize the level of services to tribal members before a tribe takes over a program. She said that, in many cases, tribal relations with states are so poor that states will satisfy their legal requirements to include Indian beneficiaries without including them in a meaningful way. Then, when tribes take over programs, they are immediately held to a standard as if the services had already been provided by the state.
Ms. Bowman said she is hearing that DHHS might need to compare/contrast with prior and post services when determining evaluations. She also said that DHHS might want to look at different entities (current providers, DHHS, beneficiaries, or a combination) to evaluate performance.
Regulatory Waiver Authority
Co-Chair Allen stated that the demonstration program must include a defined process to apply for waivers of existing regulations. He said that there should be a recognition of tribal authority to administer resources as they see fit.
Mr. Herrell responded that, while DHHS and tribes will need flexibility to modify regulations, constituent groups are apprehensive about relaxing them.
Other
Several meeting participants recommended that there be single self-governance point of contact within DHHS. Ms. Munson also raised the possibility of a single compact that covers different program funding sources with respect to accountability, with separate negotiated funding agreements for each program covered under the bigger compact.
Mr. Williams expressed a concern that there might be a tendency to try to drive things through the IHS Office of Tribal Self-Governance. He asked whether DHHS would create new self-governance offices.
Wrap-Up
Mr. Herrell provided information regarding what will occur after the regional consultation meetings conclude. Written views, which will be accepted until July 1, 2001, 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, written comments will be posted on the self-governance website: http://aspe.hhs.gov/SelfGovernance
There will be consultation meetings with state/local governments and constituent/beneficiary representatives in Washington, D.C., on June 6th-7th.
Following these meetings, a wrap-up meeting with all interested parties will be held in Washington, DC on June 14th.
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.
Co-Chair Allen concluded the meeting, stating that tribes will need to be reasonable as the Title VI process moves forward, especially because the DHHS budget includes $480 billion in program spending. He urged tribes not to underestimate interest groups with a stake in these programs, stating that tribes will need to build coalitions as self-governance is moved into other programs.