The "Tribal Self-Governance Amendments of 2000" requires the Department of Health and Human Services to conduct a study to determine the feasibility of a tribal self-governance demonstration for appropriate programs, services, functions, and activities
(or portions thereof) of the agency (other than the Indian Health Service). In conducting the study, the Department is to consult with Indian tribes, States, counties, municipalities, program beneficiaries, and interested public interest groups. Additionally, before undertaking the consultation, the Department must develop a consultation protocol in consultation with the Indian tribes. At a minimum, the protocol is to provide that: (a) the protocol be based on a government-to- government relationship between Indian Tribes and HHS; (b) Tribes and the Secretary jointly conduct the consultations; and (c) the consultation process allows for separate and direct recommendations from the Indian tribes and other entities.
This document sets forth the consultation protocol for the study. Consultation will be carried out in terms of the principles and processes set forth in this document.
The United States recognizes a special government-to-government relationship with Indian Tribes, including the right of Indian Tribes to self-governance.
Although progress has been made, Congress has found that centralized rules and regulations of the Federal bureaucracy erodes tribal self-governance and dominates tribal affairs.
Tribal self-governance has been demonstrated to improve and perpetuate the government-to- government relationship and strengthen tribal control over Federal funding and program management.
To the maximum extent possible, the goal of the feasibility study is to identify ways to reduce and eliminate barriers that prevent Tribes and Tribal organizations from assuming responsibility for Department of Health and Social Services programs.
The Feasibility Study shall be conducted consistent with the government-to-government relationship and the principles of self-governance.
Tribal consultation required through the Feasibility Study shall be carried out consistent with the Executive Order 13175 regarding Consultation and Coordination with Indian Tribal Governments.
CONSULTATION - GENERAL
Formal consultations with designated entities will take place at three important junctures of the study: 1) at the outset of the study; 2) following the development of a draft report; and 3) following the development of a final report before transmittal to Congress. Details on the consultation process follow.
As required by Section 603(a)(2)(B) of the Tribal Self-Governance Amendments of 2000, consultations will be jointly conducted by the Department and the Indian tribes. With respect to this requirement, the Title VI Feasibility Study Team of the HHS Tribal Self-Governance Advisory Committee and the Deputy Assistant Secretary for Planning and Evaluation (Special Policy Initiatives and Planning) are jointly responsible for the management of the study consultation process.
CONSULTATION - PROCESS
Consultation with statutorily designated entities will take place in four phases.
Phase One: Consultation with tribal entities will be held at the start of the study to determine tribal views on the feasibility and scope of a possible demonstration project. The results of consultation with tribal entities at this early stage will be used to focus the scope of initial consultations with non-tribal entities (see below). Consultation questions at this stage will be:
Do tribal entities believe a self-governance demonstration project is feasible for appropriate Department programs outside the Indian Health Service? If no, why not?
If so, which programs would be appropriate for inclusion in a demonstration?
Should the financial, quality, accountability, eligibility, and process rules (design) that govern tribal self-governance under Title V of the Indian Self-Determination and Education Assistance Act apply to a demonstration project?
If not, what other design options are recommended?
The phase one consultation process will include a written request for recommendations followed by a series of geographically diverse regional meetings (number and location to be decided). Subsequent to the consultations, tribal recommendations will be analyzed jointly by the tribal study team and the Department to focus the scope of initial consultations with non-tribal entities in terms of programs that might be included in a demonstration project and the design of the project.
Phase Two: Consultation with statutorily designated non-tribal entities will be based on the results of the phase one consultation with tribes. Tribal views on programs to be included and design options for a demonstration will be presented to non-tribal entities who are stakeholders interested in the programs recommended for inclusion. Consultation questions at this stage will be:
Are the programs for inclusion and project design options recommended by the tribes feasible for inclusion in a demonstration program. If not, why?
Are there particular design options that would be better or overcome problems?
The phase two consultation process will include a written request for recommendations from the following entities: national organizations representing states, counties, and municipalities and national organizations representing program beneficiaries and public interest groups. The written request will be followed by a meeting in Washington with the organizations representing states, counties, and municipalities. A parallel meeting will also be held with beneficiary and public interest groups.
Phase Three: Following the phase one and two consultations, the Department will prepare a draft report to Congress. The draft report will assess the feasibility of a demonstration and, if found to be feasible, provide recommendations on the specific programs to be included in the demonstration, the design of the demonstration (financial, quality, accountability, eligibility, and process rules), and any statutory, regulatory, or other impediments to the implementation of a demonstration. A written request for comments on the draft will be sent to tribal and other entities participating in the phase one and two consultations. In particular, the request will solicit views on the probable effects (positive or negative) of a recommended demonstration on the specific programs to be included in the demonstration and on the program beneficiaries of such programs.
If necessary, a followup meeting may be held with national and regional tribal organizations to discuss reactions to the draft report. A similar opportunity will be available to non-tribal entities.
Phase Four: Section 602(c)(5) of the Tribal Self-Governance Amendments requires that the Department report to Congress contain any separate views of tribes and other entities consulted. To address this requirement, a written request for separate views on the Department's final report will be sent to tribal and other entities prior to transmittal of the report to Congress. Any entity wishing to submit a separate view of the report may do so on the understanding that it will be included in an appendix to the report.
CONSULTATION - IMPLEMENTATION
Information: In order to facilitate consultation with tribes, HHS will provide an inventory of its programs, services, activities and functions with as much information as feasible, including program descriptions, recipients, beneficiaries and funding levels. HHS will also provide as much information as possible on particular program activities underway with tribal entities. In addition, HHS will maintain a website where it will post information on the study.
Logistical Responsibility: The Department may provide contractor support to handle the logistics of consultation meetings and mailings. Any contractor thus acquired should be knowledgeable in tribal consultation.
Meeting Leadership: Meetings will be jointly chaired by the head of the tribal study team and the Deputy Assistant Secretary for Planning and Evaluation or their designees. A facilitator may assist in conducting the meetings at the direction of the joint chairs.
Recording Meeting Recommendations: Minutes of the meeting will be kept by note takers and an audio recording made for later reference if clarification is needed.
Written Communications: Written request for comments during the consultation process will be jointly made by the head of the tribal study team and the Deputy Assistant Secretary for Planning and Evaluation.
Availability of Comments: Written comments received at various stages of the study will be placed on the study website to the extent feasible.