Tribal Self-Governance Health Care and Social Services Delivery Effectiveness Evaluation Feasibility Study: Legislative History and Development of Tribal Self-Governance and Contracting. 4.8.1 Title V – Tribal Self-Governance


The Tribal Self-Governance Amendments of 2000 added Title V, Tribal Self-Governance, to the Indian Self-Determination Act [107] establishing the Tribal Self-Governance program of the Indian Health Service, a permanent authority (the Act repealed Title III, the demonstration authority for IHS health service).  Program requirements, related provisions, and appropriations were authorized.  Some definitions concerning construction projects, Federal functions, consortium, self-governance, tribal shares, and Indian Tribe were added to provide greater clarity.

In addition to those Tribes already participating in IHS health self-governance programs, the Act authorized participation of up to 50 additional Tribes per year.  The Amendments also clarifies certain processes and characteristics of “Compacts” [108] and “Funding Agreements. [109]   The Single Agency Audit Act applies to funding agreements by the Amendments. [110]   Moreover, Cost Principles under the appropriate Office of Management and Budget circulars are required. [111]   With this exception, no other auditing or accounting standards may be required.  Tribal contractors are “authorized to redesign or consolidate programs and to reallocate or redirect funds in any manner” provided that those eligible for services were not otherwise denied. [112]

Tribes are to be permitted to make final offers to the government when there is no agreement on terms or on amount, in contrast to an earlier statutory provision.  If the Secretary fails to make a timely review and determination, the Tribe’s final offer is deemed accepted. [113]   Administrative due process is also provided to Tribes if the Secretary rejects their final offers.

The Prompt Payment Act is applied to fund transfers. [114]   Program income received by Tribes from Medicare and Medicaid reimbursements is treated as supplemental and not subject to offset or reduction in the funding agreement.  Reimbursements are still subject to the Indian Health Care Improvement Act. [115]   Section 509 incorporates building codes and standards applicable to construction projects as well as Davis Bacon Act wages and standards, [116] but Federal procurement law and regulations are not. [117]   Procurement law and regulations, however, may be selectively incorporated into annual funding agreements when there is mutual agreement. [118]    The Secretary must approve or deny a request for waiver of regulations within 90 days, or the subject of the request is deemed waived. [119]    Significant provisions are made for the acquisition, management, replacement, and donation of Federal excess and surplus property. [120]   The President’s budget request to Congress cannot be for less than the tribal base budgets. The Secretary cannot impose reporting requirements upon Tribes, yet he is required to provide a detailed level of need funded (LNF) and unfunded for each Tribe, according to ISD contracts and TSG compacts. [121]   Moreover, the report must disclose the funding formula and calculation methods used to determine each Tribe’s share of funds for administrative and support costs.  The report must be submitted to Tribes before it is submitted to Congress, and it must contain their views.  Individual Indians are also provided a statutory entitlement for health services due to them in respect of their status as Indians, irrespective of economic means testing. [122]

The Secretary was also directed to undertake negotiated rulemaking under Section 517 Regulations.  Rules were to have been published in the Federal Register one year later.  Final regulations were published on May 17, 2002. 

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