Tribal Self-governance Demonstration Feasibility Study. Appendix E

03/01/2003

Design Provision Design Recommendation Required Changes to Authorizing Statutes and Regulations
Application Process Secretary authorized to consolidate and adopt a single, application process and application form covering all programs in the self-governance demonstration. Key components of existing application requirements in program legislation would be retained, e.g., required assurances. Legislative authority needed to allow Secretary to consolidate separate program application/plan requirements for programs in the demonstration.
Redesign & Consolidation Tribes authorized to redesign and consolidate program activities under compacts and funding agreements, including the authority to transfer up to 20% of the funds of a program. Authority limited only by maintenance of effort provision. All statutes authorizing grant programs are subject to an implicit requirement that the funds which they authorize cannot be spent for purposes other than those authorized by the statute. Consequently, consolidation and transfer of funds between targeted programs must be specifically authorized either in the legislation authorizing the funds in question or the legislation authorizing the Demonstration project.

Head Start, 42 U.S.C. Sections 9835(a)(2), specifically prohibits combining Head Start funds with other program funds. LIHEAP, 42 U.S.C. Section 8624(b)(1), prohibits use of program funds for non-program purposes. CCDBG, 42 U.S.C. Section 9858m(e)(4), may also prohibit use of funds for non-program purposes.

Modification to these statutory requirements is needed to implement redesign and consolidation authority. TANF, 42 U.S.C. Section 604, prohibits the use of TANF funds for purposes not "reasonably calculated to accomplish the purposes" of the program. The TANF regulations limit authorized transfers of TANF funds to the Child Care and Development Block Grant and the Social Services Block Grant programs, subject to certain restrictions.

Carryover of Funds Tribes would be authorized to carryover funds from one year to the next until expended. No federal approval is required. 42 U.S.C. Section 9907 (a)(2) permits CSBG funds to be carried over by grantees into the succeeding fiscal year. 45 CFR Part 92.23(a) requires HHS grantees in programs covered by the regulation, including the Head Start program, to obtain permission to carryforward unobligated funds. 45 CFR Part 96.81 limits requests for carryover to 10% of LIHEAP award. Both Child Welfare Services and Promoting Safe and Stable Families require expenditure of funds within fiscal year. 45 CFR Parts 1357.40(d)(5)(C)(iv) and 1357.50(h). 45 CFR Part 98.60(e)(1) of the CCDBG program regulation require tribal grantees to obligate all funds "by the end of the fiscal year following the fiscal year for which the grant is awarded. Any funds not obligated during this period will revert to the Federal government." Modification to each of these statutes and regulations will be needed to implement the design recommendation.
Sec. 509. Construction Projects Tribes would be authorized to use funds under compacts and funding agreements for construction in accordance with Title V of the Act (which would be adopted for the demonstration). Under the redesign and consolidation authority, funds could be moved between programs and program activities, including into construction activities. Program statutes and regulations would need to be modified to permit use of funds for construction unless limits are placed on redesign and consolidation authority under the demonstration. 42.U.S.C. Section 9839(g) set conditions for the use of funds to construct Head Start facilities. 42 U.S.C. Section 9918 generally prohibits the use of CSBG funds for construction, absent the Secretary granting a waiver. The statute should be amended to clarify that tribes participating in the demonstration project will be authorized to use CSBG funds for construction projects. 42 U.S.C. Section 9858m( c)(6)(C) places limitation use of CCD funds for construction. 42 U.S.C. Section 8628 prohibits use of LIHEAP funds for construction. 45 CFR Part 1357.40(d)(5)(iii) explicitly prohibits use of Child Welfare Services funds for construction. 45 CFR Part 286.45(e) prohibits the use of TANF funds for construction or purchase of facilities.