Tribal Self-Governance Health Care and Social Services Delivery Effectiveness Evaluation Feasibility Study: Legislative History and Development of Tribal Self-Governance and Contracting. 4.8.2 Title VI – Tribal Self-Governance – DHHS

01/24/2003

The Tribal Self-Governance Amendments of 2000 also added Title VI – Tribal Self- Governance – Department of Health and Human Services.  Title VI is organized into Sections 601-604, which provides direction for a feasibility study, and Sections 6-13 that makes technical changes to the ISDEA. [123]

Title VI Section 602(a) directs the Secretary of Health and Human Services [124] to conduct a study to determine the feasibility of a tribal self-governance demonstration project for appropriate programs, services, functions, and activities (or portions thereof) of the agency.   The term “agency” means any agency or other organizational unit of the Department of Health and Human Services other than the Indian Health Service. [125]   Section 602(b) states considerations for the study.  These considerations are:

1.       the probable effects on specific programs and program beneficiaries of such a demonstration project;

2.       statutory, regulatory, or other impediments to implementation of such a demonstration project;

3.       strategies for implementing such a demonstration project;

4.       probably costs or savings associated with such a demonstration project;

5.       methods to assure quality and accountability in such a demonstration project; and

6.       such other issues that may be determined by the Secretary or developed through consultation pursuant to section 603. [126]

            Section 602(c) required the Secretary to submit a report to the Senate Committee on Indian Affairs and the House Committee on Resources, no later than 18 months after the date of enactment of Title VI.  The contents of the report required are:

1.       the results of the study under Section 602;

2.       a list of programs, services, functions, and activities (or portions thereof) within each agency with respect to which it would be feasible to include in a tribal self-governance demonstration project;

3.       a list of programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) that could be included in a tribal self-governance demonstration project without amending statutes, or waiving regulations that the Secretary may not waive;

4.       a list of legislative actions required in order to include those programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) but not included in the list provided pursuant to paragraph (3) in a tribal self-governance demonstration project; and

5.       any separate views of Tribes and other entities consulted pursuant to section 603 related to the information provided pursuant to paragraphs (1) through (4).

Section 603 directed the Secretary to determine a consultation protocol [127] for consulting with Indian Tribes [128] during the course of the Section 602 Study.  Section 603(a)(2) sets forth specific requirements for the Study protocol:

    1. the government-to-government relationship with Indian Tribes forms the basis for the consultation process;
    2. the Indian Tribes and the Secretary jointly conduct the consultations required by this section; and
    3. the consultation process allows for separate and direct recommendations from the Indian Tribes and other entities described in subsection (b).

Section 603(b) directs the Secretary to consult with Indian Tribes, States, counties, municipalities, program beneficiaries, and interested public interest groups.  The Secretary may also consult with other entities as appropriate.  Finally, Section 604 provides an authorization for funding the feasibility study.

The Department of Health and Human Services has made information about the Tribal Self Governance Feasibility Study and its Consultation Protocol Agreement available to the public on its website: www.aspe.hhs.gov/SelfGovernance.  The Consultation process is organized into four phases.  Phase one focuses on consultation with tribal entities on the feasibility and scope of a possible demonstration project.  It also asks for recommendations.  Phase two involves consultation with statutorily designated non-tribal entities and requests recommendations.  Phase three concerns the preparation of a draft report to Congress that assesses the feasibility of a demonstration project, makes recommendations, and responds to the requirements of Section 602.  Finally, Phase four involves preparation of a report to Congress that contains the separate views of Tribes and other entities consulted.  The Department also provides information on steps that it is taking to implement the Study as well as a Consultation Timeline.

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