Self-Governance Negotiations - PowerPoint Presentation

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Self-Governance NegotiationsTribal Best PracticesJune 7, 2016

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What are you negotiating?25 U.S.C. § 458aaa-4(b)(1):

“Each funding agreement…shall,

as determined by the Indian tribe

, authorize the Indian tribe to plan, conduct, consolidate, administer…all programs services, functions and activities (or portions thereof)…without regard to the agency or office of the Indian Health Service within which the program, service, function, or activity (or portion thereof) is performed.”Slide3

What are you negotiating?Programs, Services, Functions and Activities (PSFAs)Programs (high level) Activities (detailed level); and

Describe all “contractible” operations of the IHS, both administrative and programmatic, at each organizational level

Tribal Shares Associated with PSFAsSlide4

How do you decide which PSFAs to negotiate?Community and Tribal Leader direction

Determining feasibility

Consideration of opportunities and challenges

Orderly transition to Tribal administration of health care programsSlide5

How much detail must the PSFA description entail?Ranges from very detailed, to broad program titles.Considerations: Federal Tort Claims coverage, redesign authority, audit.

Inclusion of PSFA description of retained or inherent federal functions in FA.

Inclusion of PSFAs that are authorized under the Indian Health Care Improvement Act, but that IHS may not be conducting in your Area:

Example: Enhanced dental care, preventative health and wellness;

Example: Long-term Services and Supports;

Example: Home and community based services.

Describing PSFA

s

in the FASlide6
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Selecting the Tribal Negotiation TeamElected Tribal Leaders; Tribal Leader or Designee with decision making authority (Lead Negotiator);

Financial representation;

Legal representation;

SG expert/SG coordinator;

Health programmatic staff;

Others based upon Tribal priorities.Slide8

Federal Negotiation TeamAgency Lead Negotiator (ALN) – represents the Director of IHS;

OTSG – office of record, provides technical assistance throughout (Program Analyst and Financial Analyst);

HQ Staff – for financial and/or PSFA support;

Area Staff – for financial and/or PSFA support;

Office of General Counsel, HHS – for legal advice to the IHS.Slide9

Negotiation Purpose Enables a Tribe to set its own priorities to assume PSFAs;

Observes the Nation-to-Nation relationship between the Unites States and each Tribe;

Involves the active participation of both Tribal and Federal representatives;

Goal: To achieve full agreement on a SG Compact and Funding Agreement that facilitates the Tribe’s vision for health care.Slide10

Products of NegotiationCompact – an umbrella agreement that contains provisions that continue year-to-year, effective until terminated;

Funding Agreement

– contains, at a minimum:

PSFA description;

The general budget category assigned (within the IHS budget);

Funds to be provided;

Time and method for transfer of funds

Responsibilities of the Secretary (IHS);

Any other provisions upon which the Tribe and the IHS agree.

25 U.S.C. § 458aaa—4(d)Slide11

4 Stages of the Negotiation Process

Planning

Eligibility and mandatory planning phase for new Tribes

Program assessment and possible additional assumptions

Pre-Negotiation

Discuss, PSFAs, financial tables, and draft documents

Preparation of draft compact and FA

Final Negotiations

Resolution of remaining issues from pre-negotiation stage

Agreement on final documents

Post-Negotiations

Document processing & paymentSlide12

Usually, this stage is the longest and most work.Title V of the ISDEAA requires completion of a planning phase to the satisfaction of the Tribe.

Must Include:

legal and budgetary research

internal Tribal government planning and organization preparation relating to the administration of health care programs.

Planning stageSlide13

Negotiation Process Information requests

Financial tables, billing and workload information;

Any PSFA updates;

Proposals for language from IHS (such as CSC or other issues);

Transitional information such as for contracts, equipment/facilities and personnel.

Negotiation MeetingsSlide14

At Tribal request;Individual Tribe, group of Tribes, or entire Area Office;Review financial tables and gather more information about PSFAs.Drafting or editing the compact & FA

Active discussion by negotiation teams:

Issues identified during planning

Draft compact, FA, and funding tables

“Pre-negotiations”

: a meeting, in-person or by phone, with both negotiation teams meet to discuss any questions or concerns regarding the documents and tables prior to final negotiations.

Pre-negotiation stageSlide15

Full Tribal and Federal negotiation teams (face-to-face, conference call,

etc

);

Teams work together to reach agreement on the final documents.

Tribe should set the agenda and identify meeting goals;

Exchange of draft documents ahead of time is helpful.

Once agreement on the final documents has been reached, two final copies are signed by the Tribe and provided to the ALN.

Final NegotiationsSlide16

Negotiation Meetings A collaborative process, with mutual respect; Respects the Nation-to-Nation relationship;

Oriented towards Tribal goals for Self-Governance;

Secretary must exercise good faith “…to maximize implementation of the Self-Governance policy.”

(25 U.S.C.

§ 458aaa—6(e))

Positively work towards mutual agreement wherever possible.Slide17

Negotiation TipsGet to know your Agency Lead Negotiator; Set the agenda – identify your negotiation issues;

Ask a lot of questions – there are no ‘stupid’ questions!

Submit and track information requests to IHS;

Talk to experienced Tribes;

Keep a running list of outstanding negotiation issues;

Keep the document and proposal exchange moving, apart from formal meetings – update frequently;Slide18

Negotiation TipsControl the documents; Prepare follow up action lists, with agreed upon timelines;

Be creative in problem-solving;

Delegate selected items to ‘sub’ negotiation teams to report back to larger group (examples: IT, legal issues)

Don’t forget to negotiate program coordination/implementation issues;

Don’t take ‘no’ for an answer. Look at all alternatives for achieving Tribal goals.Slide19

The Tribe/TO signs the final documents and returns them to the ALN.The ALN then:Reviews the documentsPackages them with the supporting documents, Submits package to HQ for processing and signature by the IHS Director or a designeeOnce the compact and FA have been signed by both parties, they become legally binding and enforceable.

Post-NegotiationsSlide20

Last Resort – Final Offer25 U.S.C. § 458aaa—6(b)

For disagreements, in whole or in part;

Tribe formally submits to the ALN;

IHS determination within 45 days;

Failure to reject within 45 days is deemed agreement by IHS.Slide21

Rejection of Final Offers25 U.S.C. § 458aaa—6(c)Amount of funds exceeds the applicable funding level the Tribe is entitled to;

PSFA is an inherent federal function;

Tribe cannot carry out PSFA without “significant danger or risk to the public health”; and

Tribe is not eligible to participate in self-governance.

IHS must provide: technical assistance, a hearing on the record, or an option for entering the several portions of the agreement(s) upon Tribal request.Slide22

What Happens After? IHS ALN must make a recommendation regarding the agreement(s) with the Tribe;

Office of General Counsel disagreement does not necessarily mean IHS disagreement;

Resulting agreements are maintained, tracked and coordinated by the Office of Tribal Self-Governance;

Successor agreement provision – the Funding Agreement remains in full force and effect until a subsequent agreement is executed. (25 U.S.C. § 458aaa—4(e))Slide23

What if you Cannot Agree?Reach out – have any other Tribes experienced the same issue? Use SGCE and TSGAC networks. (Getting out of your IHS Area is key.)

Request additional IHS information or involvement as necessary;

Request technical assistance from OTSG;

Use Tribally-acceptable alternatives and identify high priority issues.