Tribal Self-governance Demonstration Feasibility Study. Native Village of Eyak

03/01/2003

Tommy Thompson, Secretary
US Department of Health and Social Services
200 Independence Ave. S.W.
Washington, D.C. 20201

November 21, 2002

Dear Secretary Thompson

The Native Village of Eyak thanks you for the opportunity to comment on the Tribal Self Governance Feasibility Study prepared by the office of the assistant secretary for planning and evaluation and distributed at the Self Governance Conference in San Diego on November 6, 2002.

We appreciate the hard work that went into this report and its timely issuance. We have comments that we hope will make it an even better document.

Thank you for the opportunity to comment.

Sincerely:

Native Village of Eyak

Robert Henrichs, President

cc: Merle Boyd, Chairman, Tribal Self-Governance Advisory Committee
Bobby Jindal Assistant Secretary for Planning and Evaluation

Native Village of Eyak
P.O. Box 1388
Cordova, AK 99574
907-424-7738 Fax 907-424-7739

Comments on the Tribal Self-Governance Feasibility Study issued by Office of the Assistant
Secretary for planning and Evaluation Dated November 5, 2002.

Note: Comments are organized in the same order as the document:

A: Introduction

We believe consultation with Tribes could improve the report.

1: Consultation policy creates a tribal advisory group. This does not consult with Tribes and does not meet the requirements of government to government consultation specified in section 603 (a)(1) of the act. It also has not complied with executive orders on government to government consultation.

We recognize the value of the advisory group. However, we believe that direct consultation with Tribes on a government to government basis must be the methodology used. Recommendations of a sub group or task force can be a helpful tool, but it must be done to support Tribes in their decision making role and comments such at this document from a Tribe, on the work product should bear the weight of true consultation. Clarifications should be made directly with commenting Tribes and not by the advisory group or task force.

We have several additional comments and suggestions for improvement on the consultation policy that we will be sending under a separate document.

2: The consultation process describes four regional consultation meetings and a national wrap up session in Washington DC. The Native Village of Eyak did not participate in these meetings. We are not aware of being notified or invited to these meetings.

In the future, we recommend that notice, invitations and assistance with travel expenses be provided to tribes to allow us the ability to attend and participate in the consultation meetings.

B: Findings Section

1: The second to last paragraph on page 6 refers to a GAO study (GAO/HEHS-98-134) of Individual tribal community health contracts and its conclusions that:

A: service levels were not greatly affected by a switch from regional health organizations to community run programs and

B: problems with adequate reimbursement of indirect costs have the potential to reduce service levels.

WE DISAGREE WITH THIS FINDING AND THE ASSUMPTIONS MADE FROM ACCEPTING IT.

A: We run our health programs and since we have taken over our programs from our regional consortium. our health care has improved a thousand percent. We used to only have health care available for a few days of the month and then a NO IHS sign would be put out in the hospital for the rest of the month. We now have our own clinic with to mid level practitioners and we have health care all the time. We did this all within existing funding levels.

B: NVE has an indirect cost rate of 27.8%. Our regional consortium has an indirect cost rate of 48%. We put a lot more of our dollars to work on program services. Our administrative costs are much less and we are committed to running a lean responsive administrative structure. In short, tribes do a better job providing more services for less.

2: The conclusions in GAO/HENS-98-134 are opposite of our experience and we would caution HHS or any other agencies from relying on it. We believe it is a biased study, was not done in consultation with the Tribes studied and was done to accomplish an end, not to objectively determine the efficiency with which Tribes in Alaska can or cannot operate as compared to a regional consortium.

3: The second to last paragraph on page 7 refers to GAO/RCED-99-150 conclusions.

WE DISAGREE WITH THE CONCLUSIONS AND ASSUMPTIONS EXPRESSED IN THIS PARAGRAPH.

This paragraph is worded negatively and seems derogatory to Tribes who are running our own programs.

The paragraph summarizes the findings of this report that Tribes had begun to reduce services to members as a result of indirect shortfalls. The reduction in services in the cases cited in the study resulted from a disproportionately low allocation of program funds during the funding break out from the regional consortiums to the Tribes. In all cases, well-funded consortiums had all the money, attorney's, professionals and information. An honest study of this situation would reveal about half of the resources were allocated on an active user basis to the Tribes as opposed to the regional consortiums. However, in most cases in spite of this fact, the Tribes still improved services because of better-directed management at the local level.

We caution HHS or any other agency from relying on the conclusions of GAO/RCED-99-150. We believe it is a biased study, was not done in consultation with the Tribes studied and was done to accomplish an end, not to objectively determine the efficiency with which Tribes in Alaska can or cannot operate as compared to a regional consortium.

4: Conclusion that Costs will likely outweigh potential savings under a demonstration projection on page 8.

We give this a HUH? We don't understand this conclusion. It seems to us that cost savings or increased services with the same dollars should accrue.

5: Last paragraph on page 9 describes BIA and IHS self-governance offices and suggest that this demonstration project will require a similar level of staffing in a new single office in HHS.

The offices of self-governance in both BIA and IHS are a big part of the success story of the selfgovernance project.

Both offices are staffed by highly qualified and empowered individuals who are doing the work with a few staff that would (and still does) take staffs of hundreds within the BIA and IHS. These offices deserve a good hard look at their success, and the success of the "People in Charge" concept of how to do something right.

We observed from conversations at the Self-Governance Conference in San Diego, that the staffs in both OSG and OTSG are burned out. We suggest providing more support for any new office of self governance in this project and we suggest doing more to support the talented people in the existing OSG and OTSG who have given us their lives to make this project work.

6: Page 10 first paragraph. Does not include the legal and travel costs of Tribes unless we are missing something.

7: Page 11: Recommendation in the last paragraph states:

"What is recommended to help balance the potential tribal need for indirect costs is to allow tribes to consolidate indirect costs funds up to the total allowable from all programs and use those funds to cover any allowable indirect costs."

Great concept, however, we believe this is going to be very tough to implement. Better include some serious policy development and training costs. If it isn't done right (and it is very doubtful it can be), Tribes will have a lot of confusion, auditors are going to question costs and there is a potential for disallowed costs and increased audit costs.

Better: Maintain status quo and implement a policy and training to allow special rates in negotiated rate agreements that reflect the statutory caps on programs that are assumed in the demonstration project.

8: Page 12: Program Efficiencies

States there is no clear evidence to support the conclusion that savings in management costs will accrue by consolidating programs.

We have experienced this. Use our evidence, it is pretty clear.

C: Recommendations Section

1: Programs recommended page 15.

NVE has a Title 6 grant and a family violence grant. If these become pooled and reallocated, it should not reduce funding to NVE or other existing grantees please.

2: Definition of Indian Tribe Page 16 bottom.

This definition should not include inter-Tribal Consortia as Tribes. There is no need to do this. This is what keeps eroding the status of Tribes. WE STRONGLY DISAGREE WITH THIS WORDING.

Better: "For the purpose of a demonstration project, it is recommended that the definition of an Indian tribe include Federally-recognize Indian tribes." PERIOD.

Then add the following section "Eligible Applicants/Participants

For the purpose of a demonstration project, it is recommended that eligible applicants/participants include federally recognized Indian tribes or where authorized by an Indian tribe, an inter-tribal consortium or a tribal organization acting on its behalf."

This will end the confusion of multiple definition of Tribes. Tribes are already defined. Use this. There is no need to redefine Tribes all over the place. Just state you are using Federally recognized tribes and then do a good job of defining eligible applicants/participants.

3: Selection of participating Tribes Page 17

Change this to selection of participating applicants

The Native Village of Eyak has been running our health programs through a MOU with our regional consortium for 5 years. We have been prohibited by law from participating directly in the Tribal Self-Governance program (we are a Federally recognized Tribe but section 325 has kept us from participating directly in this program)

We have the capacity to participate and the project needs to be specific in allowing Tribes in Alaska the opportunity to participate. Please word any recommendation to allow Tribes in Alaska the ability to fairly participate and take into account the moratorium we have been restricted under during most of the projects duration.

We have a self-governance agreement with BIA. We should be allowed to participate. The only reason we don't have a compact funding agreement under Title V is because of section 325 which was enacted in an appropriations rider without our (or anyone else's) input.

4: Planning and Negotiation Grants, Page 17

Native Village of Eyak has completed a planning grant for Title V but we have never been allowed to receive a negotiation because of section 325. We would like to be able to participate in the planning grant for 70,000 because most of the programs proposed in the demonstration project are new to us. We would also like to have the negotiation grant that we have been excluded from receiving. Please word the limitation on demonstrated need to allow us and other Tribes in Alaska to participate directly if we so choose.

5: Changes in Funding Page 22

NVE has a Title 6 grant and a family violence grant. If these become pooled and reallocated, it should not reduce funding to NVE or other existing grantees please.

6: Program Duplication Page 24

Last sentence on page 24 it is suggested that Tribes identify dually eligible members and indicate which election they have made to receive service.

This is a good idea. It might take some tweaking on HIPPA to keep people from getting in trouble with confidentiality and sharing information.

D: Appendix E, Existing legal barriers and recommendations

l: REVISE ALL ELIGIBILITY SECTIONS OF EACH PROGRAM TO BE CONSISTENT. TAKE OUT ALL REFERENCES THAT DEFINE TRIBES OR CHANGE THEM ALL TO BE CONSISTENT AND USE THE ONE CONSISTENT DEFINITION IN THE FEDERALLY RECOGNIZED TRIBES LIST ACT.

ADD A SECTION ON ELIGIBLE APPLICANT DEFINITION IN EACH PROGRAM STATUTE/REGULATION TO READ AS FOLLOWS:

Eligible applicants/participants include federally recognized Indian tribes or where authorized by an Indian tribe, an inter-tribal consortium or a tribal organization acting on its behalf.