ATTORNEYS AT LAW
851 S. W. SIXTH AVENUE - SUITE 1650 - PORTLAND, OR 97204
TEL: 503 242 1745 • FAX: 503 242 1072
December 23, 2002
Via Overnight Mail
Dr. Bobby Jindal. Assistant Secretary for Planning and Evaluation
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Room 447D, Hubert H. Humphrey Bldg.
200 Independence Avenue, SW
Washington, D.C. 20201
Re: The Final Tribal Self-Governance Feasibility Study
Dear Dr. Jindal:
We write on behalf of our tribal clients, the Bristol Bay Area Health Corporation, the Council of Athabascan Tribal Governments, the Las Vegas Paiute Tribe, the Menominee Tribe of Indians of Wisconsin, the Metlakatla Indian Community, the Mississippi Band of Choctaw Indians. the St. Regis Mohawk Tribe, the Seminole Tribe of Florida, the Shoalwater Bay Indian Tribe, the Suquamish Tribe and the Washoe Tribe of Nevada and California, to provide you with comments on the Department of Health and Human Services' (DHHS) final Tribal Self-Governance Feasibility Study, which was prepared in accordance with Title VI of the Indian Self-Determination and Education Assistance Act, as amended by Public Law 106-260. Our tribal clients are extremely supportive of a self-governance demonstration program for non-Indian Health Service (IHS) agencies within the DHHS and are encouraged by the Department's recommendation to pursue such a program. Our tribal clients are enthusiastic about participating in a demonstration and they appreciate the DHHS' commitment to raising the status of health care for Indian people.
While our tribal clients support the findings and recommendations of the study, they offer comments and recommendations as follows:
1. Number of Programs. Our clients appreciate that the demonstration project vVIII include not only the 11 programs listed under the study recommendations, but also six additional programs to be added later. In addition. Our clients recommend that the authorizing legislation make a social services block grant and a substance abuse/mental health block grant available in the first year of the demonstration, and allow tribes to include any other DI I1IS award for which they are selected in their self-governance Title VI compact and funding agreement.
2. Indirect Costs and Contract Support. The final Feasibility Study recommends that caps on administrative (or "indirect") costs be maintained. I lowever, the financial burden on tribes to cover indirect costs would deplete the resources needed to support the direct programs and could discourage tribes from participating in the demonstration project. Our clients recommend that the authorizing legislation permit waivers of the indirect cost limits. Also, additional funding should be appropriated to offset what would othervyise result in potential erosion of-spending on direct programs.
3. Funding. Funding formulas, in addition to the specific terms and conditions governing the Minding agreements. should be the subject of mutual negotiations. additionally, our tribal clients recommend that the legislation authorizing the dcnnoiisiration program alloww tribes to receive the funding due to there under the negotiated Title VI funding agreement in an annual lump sum payment made within thirty (30) days from when the Office of Management and Budget allocates the DHHS appropriations. Tribes should he allowed to invest the lump sum payment using prudent investment principles and to spend the interest earnings to further the compacted Title VI programs.
4. Matching Requirements. While many of the programs to be included in the l itle VI demonstration allow a full or partial waiver of matching requirements, tribes with limited resources may nevertheless find it difficult to secure their own funds for matching purposes. Our tribal clients thus recommend that the authorizing legislation include an opportunity to secure full waivers of-the matching requirements for any programs included in the demonstration.
5. Redesign and Consolidation. Our tribal clients agree with the DHHS that "[r]edesign and consolidation authority is a principal tenet and inseparable from the definition of self-government." Therefore, if tribes in the demonstration agree to follow a program's statutory purposes and self-governance allowable cost principles, tribes should he allowed to make program and budget revisions within each compacted Title VI program vwith no required approvals from the DHHS. Out tribal clients also recommend that tribes he allowed to reallocate funds between compacted programs.
6. Waivers. Our tribal clients appreciate the DH HS' commitment to providing tribes with due process vwhenever the Secretary decides to withdraw a waiver that has already been authorized. However, the DHHS would place the burden of proof in the administrative appeal on the participating tribe. The standard should instead be modeled on the appeals provisions pertaining to reassumption of programs under Title V of the ISDFAA. Section 507(a)(2) of Title V provides, "In any hearing or appeal involving a decision to reassume operation ofa program ... the Secretary shall have the burden of proof' of' demonstrating by clear and convincing evidence the validity of the grounds for reassumption." 25 U.S.C. § 4S8aaa-6(a)(2). Additionally, tribes should be given proper notice and evidence regarding what conditions constitute "substantial harm to the beneficiaries" as the trigger for withdrawing a waiver, and be allowed an opportunity to correct anv deficiencies prior to the withdrawal being made.
7. Appeals. Like the concern regarding the burden of proof pertaining to waivers discussed above, the burden of proof in an appeal of a final offer under the demonstration program should remain with the DHHS, as is the case under Title V. See 25 U.S.C. § 458aaa-6(d) (requiring the Secretary to provide a tribe whose final offer has been rejected with a hearing on the record and an opportunity to appeal, where the Secretary must demonstrate the validity of the grounds for rejecting the final offer by clear and convincing evidence).
8. Program Accountability. Suggestions made throughout the Feasibility Study place significance on the need for quantitative data to demonstrate program outcomes and benefits. However, many of the benefits gained by tribal governments and their communities are not easily represented by quantitative data. Instead, our tribal clients recommend that an evaluation of the demonstration program consist of the following:
- A verification that the participating tribes met the statutory purposes of the compacted programs;
- A baseline measure of the services provided to beneficiaries,
- A confirmation that key self-governance principles were carried out as tribes operated the Title VI programs, and
- Federal viewpoints regarding the merger of Title VI programs and selfgovernance principles, as well as the impact on program beneficiaries.
The study suggests that tribes should be allowed to use compact funds to cover anv data collection or reporting requirements, but our tribal clients are concerned that this would result in further erosion of funding needed for the direct programs, particularly in Light of the situation involving indirect costs, as addressed above. Additional funding should be provided for tribes to complete the overall evaluation.
We appreciate the opportunity to provide you with the above comments on behalf of our tribal clients. Tribes have a proven track record of being capable, innovative, efficient managers of programs. Our clients look forward to the opportunity to participate in the demonstration program.
Should you have any questions about these comments, or if you wish to discuss any of these issues turther, please do not hesitate to contact Geoff Strommer or Starla Rods at 503/242-1745: or email@example.com, firstname.lastname@example.org.
HOBBS, STRAUS, DEAN & WALKER, LLP
By: Geoffrey D. Strommer
cc: Merle Boyd. Chairman, IHS TSGAC
Dr. Charles Grimm, Interim Director, IHS
Paula Williams, Director, IHS OTSG
Robert Clark, CEO, Bristol Bay Area Health Corporation
Anna Huntington-Kriska, Exec. Director, Council of Athabascan Tribal Govts.
Tim Strong, Director of Health & Human Services, Las Vegas Paiute Tribe
Jerry Waukau, Health Administrator, Menominee Tribe of Indians of Wisconsin
Victor Wellington, Chairman, Metlakatla Indian Community
Nell Rogers, Mississippi Band of Choctaw Indians
Rita LaFrance, Health Director, St. Regis Mohawk Tribe
Terry Sweat, Health Administrator, Seminole Tribe of Florida
Pam Norris, Self-Governance Coordinator, Shoalwater Bay Indian Tribe
Linda Holt, Health Director, Suquamish Tribe
Leah Exendine, Health Director, Washoe Tribe of Nevada and California