TSGAC October 2019 Meeting Packet

Tribal Self-Governance Advisory Committee September 30 – October 1, 2019

Tribal Self-Governance Advisory Committee September 30 – October 1, 2019 Contents Agenda …………………………………………………………………………………………. 2 Committee Membership ……………………………………………………………………... 6 TSGAC Meeting Summary from July 2019 …………………………………………………12 Nomination from CSKT ……………………………………………………………………….. 20 Dear Tribal Leader Letters …………………………….……………………………………… 22 Behavioral Health Initiative Funding MOU and related performance measures between the VA, VHA and IHS Solicitation for the FY 2020 IHS Joint Venture Construction Program CSC Policy Update TSGAC Correspondence Grid & Letters Submitted from 7/15/19 – 9/24/19 ………. 42 Recommendation to Request Section 105(l) Lease Information from Tribes National Institutes of Health Tribal Advisory Committee Nomination Comments and Recommendations on the Opioid Grant Program Summary of Issues from July 2019 TSGAC Meeting Joint TSGAC/DTAC Consultation Comments from Aug. 2018 Summaries of Select OIG Reports …………………………………………………………. 52

Agenda

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IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE c/o Self-Governance Communication and Education Telephone (918) 302-0252 ~ Facsimile (918) 423-7639 ~ Website: www.Tribalselfgov.org

IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE & TECHNICAL WORKGROUP MEETING Embassy Suites Washington DC - DC Convention Center 900-10th Street NW, Washington, DC 20001 Phone: (202) 739-2001

AGENDA Monday, September 30, 2019 (9:00 am to 11:00 am) Meeting of the TSGAC Workgroup 9:00 am

Meeting of the TSGAC Technical Workgroup Welcome & Introductions

9:15 am

Opening Remarks Jay Spaan, Executive Director, SGCETC Jennifer Cooper, Director, Office of Tribal Self-Governance, IHS and TSGAC Technical Workgroup Federal Co-Chair

9:30 am

Reflection and Evaluation of the TSGAC Workgroup Meeting • Discuss purpose of the technical workgroup meeting and obtain feedback.

• Compete the survey evaluation and return to SGCETC.

10:00 am

Improving IHS Negotiations Sub-Workgroup Sub Workgroup Members (TBD)

10:30 am

Update from the Self-Governance Strategy Session Jay Spaan, Executive Director, SGCETC

10:45 am

Identifying Technical Workgroup Thoughts on Agenda Items Facilitated by: Jay Spaan, Executive Director, SGCETC

11:00 am

Tribal Caucus Facilitated by: Marilynn “Lynn” Malerba, Chief, Mohegan Tribe, and Chairwoman, Indian Health Service (IHS) Tribal Self-Governance Advisory Committee (TSGAC) • BEMAR Distributions through Title V Agreements

11:45 am

Lunch (Provided)

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IHS TSGAC Meeting September 30 – October 1, 2019 – AGENDA

Monday, September 30, 2019 (12:30 pm to 5:00 pm) Meeting of the IHS Tribal Self-Governance Advisory Committee 1:00 pm

TSGAC Meeting Called to Order Welcome, Invocation & Roll Call Introductions – All Participants & Guests

1:15 pm

TSGAC Opening Remarks Marilynn “Lynn” Malerba, Chief, Mohegan Tribe, and Chairwoman, IHS TSGAC RADM Michael D. Weahkee, Principal Deputy Director, IHS

1:30 pm

TSGAC Committee Business • Approval of Meeting Summary (July 2019) • Nominations to TSGAC • TSGAC Appointment to the IHS Information Systems Advisory Committee

1:40 pm

Office of Tribal Self-Governance Update Jennifer Cooper, Director, Office of Tribal Self-Governance, IHS

2:00 pm

Patient Protection and Affordable Care Act (ACA) Implementation Update Cyndi Ferguson, Self-Governance Specialist/Policy Analyst, SENSE Inc. Doneg McDonough, Consultant, TSGAC

2:30 pm

Legislative & Litigation Update Stacy Bohlen, Executive Director, National Indian Health Board

3:00 pm

Distribution of Backlog of Essential Maintenance, Alteration and Repair Funding Candice Skenandore, Self-Governance Coordinator, Oneida Nation Elliott Milhollin, Partner, Hobbs, Straus, Dean and Walker Gary Hartz, Director, Office of Environmental Health and Engineering, IHS

3:30 pm

IHS Ongoing Tribal Consultation Issues Darrell LaRoche, Director, Office of Clinical & Preventive Services, IHS • Opioid Funding • Behavioral Health Grants and IHS National Tribal Advisory Committee on Behavioral Health • Community Health Aide Program

4:15 pm

Update from House Committee on Veteran’s Affairs Sarah Dean, Democratic Professional Staff Member, Subcommittee on Health, House Committee on Veterans’ Affairs

5:00 pm

Recess until October 1, 2019

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IHS TSGAC Meeting September 30 – October 1, 2019 – AGENDA

Tuesday, October 1, 2019 (8:30 am – 5:00 pm) Joint Meeting of IHS Direct Service and Contracting Tribes Advisory Committee (DSTAC) & TSGAC with RADM Michael D. Weahkee, Principal Deputy Director, IHS 8:30 am

Welcome and Introductions Marilynn “Lynn” Malerba, Chief, Mohegan Tribe, and Chairwoman, TSGAC Terri Parton, President, Wichita and Affiliated Tribes and Chairwoman, DSTAC P. Benjamin Smith, Deputy Director for Intergovernmental Affairs, IHS

8:45 am

Indian Health Service Budget Update Ann Church, Acting Director, Office of Finance and Accounting, IHS Melanie Fourkiller, Policy Analyst, Choctaw Nation • Fiscal Year 2020 Appropriations& FY 2022 IHS Budget Formulation Process • IHS Director’s Emergency Fund and Management Initiative Fund Update

9:15 am

HHS Health Information Technology Modernization Project Maia Z. Laing, HHS Optimization Team, Office of the Chief Technology Officer Mitchell Thornbrugh, Chief Information Officer and Director, IHS • Summary of final report from the HIT Advisory Committee & next steps

10:00 am

HHS Operational Division Access to IHS Patient Data Robert Pittman, Deputy Director, Office of Public Health Support, IHS What agreement exists between IHS and other HHS Operational Divisions? For what purpose is access granted?

10:45 am

IHS Tribal Consultation Policy and Process P. Benjamin Smith, Deputy Director for Intergovernmental Affairs, IHS • HHS Initiative to Update HHS Tribal Consultation Policy • Joint Committee letter—improvements to IHS Consultation Policy

12:00 pm

Lunch – TSGAC/DSTAC Members’ Executive Session with RADM Weahkee

1:30 pm

Joint Discussion with IHS Principal Deputy Director • Use of the IHS Director’s Emergency Fund • Contract Support Cost Policy – outstanding issues for resolution • Pharmacy Benefits Management (PBM) Claims Update • 105(l) Lease Funding and Consultation Update • Office of Inspector General Reports and Recommendations • IHS Quality Activities • VA-IHS MOU Consultation • Other Issues

3:30 pm

Closing Remarks/ Adjourn Marilynn “Lynn” Malerba, Chief, Mohegan Tribe, and Chairwoman, IHS TSGAC Terri Parton, President, Wichita and Affiliated Tribes and Chairwoman, DSTAC RADM Michael D. Weahkee, Principal Deputy Director, IHS

4:00 pm

TSGAC Technical Workgroup Session • Assignments and follow up

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TSGAC Members

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IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE c/o Self-Governance Communication and Education Telephone (918) 302-0252 ~ Facsimile (918) 423-7639 ~ Website: www.tribalselfgov.org

TSGAC Membership September 27, 2019 Area

Member

Status Primary

Alaska

Diana Zirul Tribal Council Member Kenaitze Indian Tribe Gerald “Gerry” Moses Senior Director Alaska Native Tribal Health Consortium

Alternate

Richard Aspenwind Governor Pueblo of Taos

Primary

Raymond Loretto, DVM Governor Pueblo of Jemez

Alternate

Jane Rohl Tribal Council Secretary Grand Traverse Band of Ottawa & Chippewa Indians

Primary

Jennifer Webster Councilwoman Oneida Nation

Alternate

Michael Corcoran Chippewa Cree Tribe

Primary

TBD Confederated Salish & Kootenai Tribes

Alternate

Byron Nelson, Jr Chairman Hoopa Valley Tribe

Primary

Robert Smith Chairman Pala Band of Mission Indians

Alternate

TBD Spirit Lake Nation

Primary

TBD Winnebago Tribe of Nebraska

Alternate

Albuquerque

Bemidji

Billings

California

Great Plains

Contact Information alaskadi@pentc.com

gmoses@anthc.org

governor@taospueblo.com

Raymond.loretto.dvm@jemezpueblo.org

jane.rohl@gtbindians.com

jwebste1@oneidanation.org

cbfdistrict@gmail.com

rsmith@palatribe.com

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Nashville

Marilynn “Lynn” Malerba* Chief Mohegan Tribe of Connecticut

Primary

Casey Cooper CEO Eastern Band of Cherokee Indians Hospital

Alternate

Myron Lizer Vice President Navajo Nation

Primary

Dr. Jill Jim Executive Director Navajo Nation Department of Health

Alternate

John Barret, Jr. Chairman Citizen Potawatomi Nation (Proxy: Kasie Nichols)

Primary

Jacklyn King Secretary Sac and Fox Nation

Alternate

Jefferson Keel Lt. Governor Chickasaw Nation

Primary

Gary Batton Chief Choctaw Nation of Oklahoma (Proxy: Melanie Fourkiller)

Alternate

Joey Whitman Councilman Gila River Indian Community

Primary

Delia Carlyle Council Member Ak-Chin Indian Community

Alternate

W. Ron Allen Tribal Chairman/CEO Jamestown S’Klallam Tribe

Primary

Tyson Johnston Vice President Quinault Indian Nation

Alternate

Daniel L.A. Preston, III Councilman

Primary

lmalerba@moheganmail.com

TSGAC Chairwoman

Navajo

Oklahoma 1

Oklahoma 2

Phoenix

Portland

Tucson

Casey.Cooper@cherokeehospital.org

myronlizer@navajo.nsn.gov

Jill.jim@nndoh.org

Kasie.nichols@potawatomi.org

justinwood@sacandfoxnation-nsn.gov

lt.gov@chickasaw.net

mfourkiller@choctawnation.com

joey.whitman@gilariver-nsn.gov

dcarlyle@ak-chin.nsn.us

rallen@jamestowntribe.org

tjohnston@quinault.org

Daniel.preston@tonation-nsn.gov

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Tohono O’odham Nation Anthony J. Francisco, Jr. Councilman Tohono O’odham Nation

Alternate Anthony.francisco@tonation-nsn.gov

TSGAC Technical Workgroup Area

Member

Status Tech Rep

Alaska

Brandon Biddle Alaska Native Tribal Health Consortium Alberta Unok Deputy Director Alaska Native Health Board

Tech Rep

Albuquerque

Shawn Duran Pueblo of Taos

Tech Rep

Bemidji

John Mojica Mille Lacs Band of Ojibwe

Tech Rep

Candice Skenandore Oneida Nation

Tech Rep

Billings

Dustin Whitford Chippewa Cree Tribe

Tech Rep

California

John Robbins Hoopa Valley Tribe

Tech Rep

Great Plains Nashville

Contact Information bbiddle@anthc.org

aunok@anhb.org

SDuran@taospueblo.com

john.mojica@millelacsband.com

cskena10@oneidanation.org

dustin@cct.rockyboy.org

hvtsgjrobbinsjr@gmail.com Tech Rep

Martha Ketcher United South and Eastern Tribes

Tech Rep

Navajo

Theresa Galvan Navajo Nation

Tech Rep

Oklahoma 1

Jeremy Arnette Citizen Potawatomi Nation

Tech Rep

Oklahoma 2

Melissa Gower Chickasaw Nation Division of Health

Tech Rep

Terra Branson Muscogee (Creek) Nation

Tech Rep

Phoenix

Karen Fierro Ak-Chin Indian Community

Tech Rep

Portland

Jennifer McLaughlin Jamestown S’Klallam Tribe

Tech Rep

mketcher@usetinc.org

Theresa.galvan@nndoh.org

jarnette@potawatomi.org

Melissa.Gower@chickasaw.net

tbranson@mcn-nsn.gov

KFierro@ak-chin.nsn.us

jmclaughlin@jamestowntribe.org

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Tucson

Veronica Geronimo Tohono O’odham Nation

Tech Rep veronica.geronimo@tonation-nsn.gov

Federal Representatives Area

Member

Status

Contact Information

Jennifer Cooper OTSG Director

OTSG Rep

jennifer.cooper@ihs.gov

HQ

Jeremy Marshall Policy Analyst

OTSG Rep

jeremy.marshall@ihs.gov

Tamara Clay Policy Analyst

OTSG Rep

tamara.clay@ihs.gov

Alaska

Lanie Fox Director, Office of Tribal Programs

Area Rep

lanie.fox@ihs.gov

Albuquerque

Russel Pederson Director, OEHE Agency Lead Negotiator

Area Rep

russel.pederson@ihs.gov

Bemidji

Chris Poole Agency Lead Negotiator

Area Rep

chris.poole@ihs.gov

Billings

Bryce Redgrave Executive Officer

Area Rep

bryce.redgrave@ihs.gov

California

Travis Coleman Contracting Specialist

Area Rep

travis.coleman@ihs.gov

Great Plains

Dan Davis Federal Liaison

Area Rep

daniel.davis@ihs.gov

Nashville

Ashley Metcalf Agency Lead Negotiator

Area Rep

ashley.metcalf@ihs.gov

Navajo

Dee Hutchison Executive Officer

Area Rep

daalbaaleh.hutchison@ihs.gov

Oklahoma

Lindsay King Agency Lead Negotiator

Area Rep

lindsay.king@ihs.gov

Phoenix

Randall Morgan Director, Office of Tribal Self-Determination

Area Rep

randall.morgan@ihs.gov

Portland

Jason Davis Financial Analyst

Area Rep

jason.davis@ihs.gov

Tucson

Mark Bigbey Agency Lead Negotiator

Area Rep

mark.bigbey@ihs.gov

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Additional Technical Representatives Area

DC

Member

Status

Contact Information

C. Juliett Pittman SENSE Incorporated

SENSE, Inc.

pitt@senseinc.com

Cyndi Ferguson SENSE Incorporated Doneg McDonough Devin Delrow Director of Federal Relations, NIHB

cyndif@senseinc.com SENSE, Inc. Health Reform NIHB

d.mcdonough@yahoo.com ddelrow@nihb.org

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July 2019 TSGAC Meeting Summary

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TSGAC July 2019 Meeting

Attendance: Area Alaska

Present X

Albuquerque

X

Bemidji

X

Billings California Great Plains Nashville

Attendee(s) Diana Zuril Gerry Hope Ian Chisholm Raymond Loretto Jane Rohl Jennifer Webster

X

John Robbins

X

Lynn Malerba Cheryl Andrews-Maltais Theresa Galvan Kasie Nichols Melanie Fourkiller Melissa Gowler Joey Whitman Delia Carlyle Ron Allen Daniel Preston

Navajo Oklahoma 1 Oklahoma 2

X X X

Phoenix

X

Portland Tucson

X X

Committee Business: • • •

A quorum was established.

Minutes from the April 2019 TSGAC meeting were approved (W. Ron Allen motioned to accept the minutes and Cheryl Andrews-Maltais seconded the motion).

A nomination letter from Sac and Fox Nation was presented to the committee that requested Jacqueline King serve on TSGAC in the alternate for Oklahoma 1 seat. W. Ron Allen made a motion to accept the nomination and Melanie Fourkiller seconded the motion. Nomination approved.

Office of Tribal Self-Governance Jennifer Cooper, Director Director Cooper provided a presentation that covered numerous updates from the Office of Tribal SelfGovernance (OTSG). The presentation is available at https://www.tribalselfgov.org/tsgac-july-2019meeting/. Among the updates, Director Cooper noted that the Iowa Tribe of Kansas and Nebraska recently took over administration of their health clinic through a Self-Governance agreement. In total, IHS has entered into 104 Self-Governance compacts and 130 funding agreements—resulting in $2.3 billion transferred to Self-Governance Tribes.

•

Director Cooper also provided an update on efforts to fill key positions within OTSG and highlighted the importance of including best practices and achievements of Self-Governance Tribes in the annual report to Congress.

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•

•

Director Cooper requested Volunteers to review applications for the planning cooperative agreements. Anyone interested in volunteering was asked to let Director Cooper know of their interest.

Chief Malerba highlighted the importance of understanding the job description of ALNs and noted that Tribal leaders want ALNs to be decision-makers at the table. In order to be decision-makers, there should be consistency in the qualifications of ALNs across areas.

Indian Health Service Budget Update Ann Church, Acting Director, Office of Finance and Accounting, IHS Melanie Fourkiller, Policy Analyst, Choctaw Nation Key Highlights from the FY 2020 President’s Budget:        

Proposed Program Discontinuations: Health Education and Tribal Management Grants Program Mandatory Funds: Special Diabetes Program for Indians ($150 million per year) Proposed reauthorization for FY 2020 and FY 2021 Provide Federal Tort Claim Act coverage for IHS volunteers Authorize IHS to establish concurrent Federal/State jurisdiction at IHS Federal enclave properties Authorize discretionary use of all Title 38 authorities Meet Loan Repayment/Scholarship service obligations on a half-time basis Provide tax exemption for IHS Health Professions Scholarship and Loan Repayment Programs

Office of Information Technology Update (OIT) Maia Z. Laing, HHS Optimization Team, Office of the Chief Technology Officer, Immediate Office of Secretary, HHS Project Highlights: • Completed HIMSS Analytics Electronic Medical Record Adoption Model (EMRAM) and Outpatient Electronic Medical Record Adoption Model (O-EMRAM) Pilot Program with 7 IHS sites • Completed the Legacy Assessment to understand RPMS architecture and potential path forward for RPMS modernization • Completed the Data Call / Qualitative Survey • Completed Site Visits and Listening Sessions – 24 sites visited across 11 IHS areas; 10+ listening sessions have been held with groups including attendees at the TSGAC Annual Conference, Tier 2 Area IT Support, and various IHS groups and Councils • Completed and submitted the Analysis of Alternatives (AoA) to the HHS Secretary to support the FY2021 budget ask to support IHS HIT modernization efforts • The Technical Advisory Commission is preparing to make it’s final recommendations to the project team on considerations for IHS HIT modernization • Kicked-off the Roadmap workstream; the project team is closely collaborating with IHS and ONC • Kicked-off the Human Centered Design workstream to generate User Stories and Journey Maps to understand interactions with HIT and support future modernization efforts • Community of Practice Whitepaper is being composed to provide support on how to enhance HIT peer support and the training infrastructure throughout the I/T/U 105(l) Leases Update for FY 2018 and 2019 Ann Church, Acting Director, Office of Finance and Accounting, IHS Ann Church provided an overview of the progression of 105(l) leases from 2016 to 2018. Starting in 2016, the approximately $6 million was spent on thirty-seven (37) 105(l) lease proposals, and that amount increased to 83 proposals with a cost of around $25 million, and,as of July, they have received

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approximately 123 proposals with a cost totaling between $54 and $56 million. There can be a significant difference in proposals with costs ranging from $9,500 to $9 million per lease.

Another round of tribal consultation and uber confer has been conducted, and they are in the process of compiling a summary of the comments. The services appropriation is available for two fiscal years, which provides for flexibility regarding when they will spend the funds.

IHS is going to examine the possibility of leveraging some of the data culls and information requests that facilities are currently in the process of conducting to request data that can be utilized to project future 105(l) lease proposal costs. The request for facilities needs is due by December 31. They are considering including data requests specific to 105(l) leases with the request for facilities needs information. However, they are considering the timing of the requests because the sooner that they can access the information relevant to projections, the easier it will be to incorporate the data into the tribal budget formulation process and begin to share information with appropriators.

Key Comments, Questions, and Responses Q: How many agreements do you have?

A: I do not have that information but we are looking at how we can distribute that information A participant noted concern that Tribes are not negotiating with IHS; Tribes are negotiating with OGC. Another participant noted concern with the narrow interpretation of IHS’s obligations.

National Community Health Aide Program Tribal Consultation Christina Peters, Tribal Community Health Provider Project Director, Northwest Portland Area Health Board Minette C. Galindo, Public Health Advisor, Division of Behavioral Health, Office of Clinical & Preventive Services, IHS Christina Peters and Minette Galindo provided an overview of the functions of the Community Health Aide Program (CHAP). The focus was mainly on the interim CHAP policy, the proposed nationalization of the CHAP program and efforts to further develop a policy to implement nationalization. Peters provided clarification regarding the misconception that the administration has proposed cutting the CHR program to fund the CHAP program. The CHAP Tribal Advisory Group (TAG) is supportive of the continuation of the CHR program and has never supported the elimination of the CHR program. Peters also referenced the areas of disagreement between the CHAP TAG and the IHS and mentioned that those are in the footnotes of the presentation.

Minnette Galindo expounded upon on the presentation provided by Christina Peters. She emphasized how CHAP can decentralize health care. She explained the differences between the community health aide, behavioral health aide, and dental health aide positions; the CHR will patients navigate between the systems. All providers will operate under the supervision of a licensed physician. Minette discussed the possibility for transitioning CHR personnel to CHAP if they are interested in continuing their education and career development.

Consultations were held regarding the expansion of CHAP in 2016. The three biggest concerns gleaned from the consultations: • Make sure the program is regional • Do not disrupt Alaska o Efforts taken by the agency to expand CHAP can not reduce resources to Alaska.

• Do it in partnership with Tribes o In 2018, the IHS established the CHAP TAG.

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The consultation initiated on May 8 requesting recommendations on a draft IHS policy to implement, outline, and define a National Community Health Aide Program The comment period closed on June 7.

Tribal feedback included requests for a 30-day extension to the comment period, so the comment period was extended to July 8. Feedback from 41 tribes, tribal organizations, or national organizations was received. The comments will be reconciled and provided to the TAG, so the TAG can review the comments and compile their final recommendations to the IHS. The policy will continue through the IHS and HHS policy review process, which includes agency-wide comment and review, then when it is finalized, it will be published in the Indian Health Manual.

Action Items Identified Encourage participation in the CHAP TAG. A self-gov alternate for the Albuquerque area is needed.

They also need to fill the seats for DSTAC. National Tribal Advisory Committee on Behavioral Health Theresa Galvan, Navajo Nation CAPT Andrew Hunt, Acting Deputy Director, Division of Behavioral Health, Office of Clinical & Preventive Services, IHS Captain Hunt provided an update on the National Tribal Advisory Committee on Behavioral Health (NTAC). A consultation and confer period was conducted from May through August 2018. The recommendations compiled during the consult and confer period were reviewed and discussed at subsequent NTAC meetings, then included in a letter that was delivered to RADM Weahkee on March 14, 2019. The letter also included a request for a face-to-face meeting with NTAC and IHS leadership, which was held on June 17, 2019. At the June 17th meeting, RADM Weahkee requested broader input regarding the recommendations.

Theresa Galvan presented the details of the NTAC recommendations made to the IHS to address behavioral health in AI/AN communities. NTAC’s recommendations are based on the $48.5 million eligible for tribal consultation. The following is a summary of NTAC’s recommendations: Substance Abuse & Suicide Prevention Program (SASPP) • Tribal Grants and Program Awards – increase from $24,918,003 to $26,011,882 to be distributed through a new methodology • Urban Indian Organizations – no change, but maintain the funding methodology • National Management – reduce from $4,002,890 to $610,677 • AASTEC Cooperative Agreement – reallocated $215,000 to Tribal Grants and Program Awards Domestic Violence Prevention Program (DVPP) • • •

Tribal Grants and Program Awards – increase funding from $9,775,838 to $10,433,700 distributed through new methodology Urban Indian Organizations – no change National Management – reduce from $1,791,440 to $1,123,578

Zero Suicide Initiative (ZSI) • Tribal Grants and Program Awards – increase funding from $3,200,000 to $3,497,415 distributed through a new methodology • Urban Indian Organizations – reduce from $400,000 to $0 • Recommend that IHS allow current grantees to continue as is through 2020 and make any changes to funding effective in the new funding cycle beginning in 2021 Key Comments, Questions, and Responses Q: What is the funding methodology? Will that be described in detail in the consultation letter?

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A: I am not sure if that will be in the DTLL, but it is a methodology that breaks it down into three tiers.

Q: How sure are you that these recommendations will be executed or followed through with?

A: “Now that the NTAC has had the opportunity to put these recommendations forth, I believe in partnership with the Self-Governance Advisory Committee these were formulated, but we wanted to make sure that we do not just leave the review and comment to the workgroup and that It goes out to all of Indian country. So that will be the next step. These are sent out nationally to all 573 tribes… and when that comment period concludes, we will start making decisions.” - RADM Weahkee Action Items Identified • Recirculate funding methodology explanation presented at self-governance meeting in Michigan Opioid Funding Consultation CAPT Andrew Hunt, Acting Deputy Director, Division of Behavioral Health, Office of Clinical & Preventive Services, IHS Captain Hunt provided an overview of the IHS Opioid Grant Pilot Program. The Consolidated Appropriations Act, 2019 provided a $10 million increase in the Alcohol and Substance Abuse Program budget line. The IHS has been instructed that the program shall be developed in coordination with SAMHSA. IHS has met with SAMHSA to review their Tribal Opioid Response grant to avoid duplication.

Grants shall be used for supporting the development, documentation, and sharing of locally designed and culturally appropriate prevention, treatment, recovery, and aftercare services for mental health and substance used disorders. Funding shall be provided for services and technical assistance to grantees to collect and evaluate the performance of the program.

Key Comment, Questions, and Responses The common complaint tribal leaders are hearing is about the amount of resources that are necessary to apply and maintain compliance with grants. This results in much of the funds being utilized to administer the grant as opposed to resources going to fulfill the objectives of the grant.

There should be a uniform method for all tribes to receive some funding—getting away from the competitive grant basis. Part of the problem is that while all Tribes are impacted by this burden, it distinctly disadvantages those tribes who do not have actual grant writers or the human resources to create sophisticated grant applications.

To put all tribes in a position where they actually have to write a grant for something that should be an absolute consideration or an unfunded obligation is putting the tribes at too big of a disadvantage, and a better way of getting that funding to the tribal nations that actually need it should be considered.

ICNAA should work on developing MOAs with other agencies (e.g., BIA, DOJ) because they have additional funding for opioid treatment and if they can utilize those resources in a collaborate effort, they would be more effective.

Action Items Identified • Continue to support base and formula funding over competitive grant funding National Institute of Health – All of Us Initiative Marilynn “Lynn” Malerba, Chief, Mohegan Tribe, and Chairwoman, IHS TSGAC Chief Malerba shared concerns regarding the National Insitute of Health’s All of Us Initiative. She expressed concerns with NIH’s failure to secure tribal consent before collecting data from tribal citizens.

It is essential to ensure that tribes are making efforts to exercise data sovereignty. NIH did not initially engage in consultation. Consultation is occurring now.

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Action Items Identified • Advocate for NIH to continue to conduct meaningful consultation before proceeding with initiatives involving tribal members or tribal communities • Support the embargo of AI/AN data until consultation is completed to the satisfaction of Tribes Legislative/Litigation Update Geoff Strommer, Partner, Hobbs, Strauss, Dean and Walker Mr. Strommer provided an update on Texas v. United States and the opioid multidistrict litigation. Oral argument for Texas was scheduled for July 9. However, before oral argument was held, the 5th Circuit (court of appeals) asked the parties to brief additional questions that were not the focus of the district court below having to do with standing – more, precisely, whether or not the parties are rightfully before the court. The additional questions were raised due to the change in position in the litigation by the United States. The shift in position is that the U.S. now agrees with that the entirety of the Affordable Care Act (ACA) is unconstitutional. So the question then becomes is there a dispute that the courts need to address and do the parties have standing. Challenging the district court’s decision below are intervener states (e.g., California) and the U.S. House of Representatives. If the interveners did not have standing, would the court remand it back to the district court, or is the case null and mooted by the fact that there is no longer a disagreement.

In the briefs that all of the parties filed, they all recognized that even though the U.S. changed position, a dispute remained because the U.S. has committed to continuing to implement the ACA until the courts have finally resolved the issue of whether or not ACA is constitutional. Oral arguments were held on July 9. None of the parties who argued, nor any of the judges raised the IHCIA issue; however, one of the judges did raise the question of whether there are provisions in the ACA that have no connection to the individual mandate. Parties presented provisions in the ACA that are not connected to the ACA, but the Indian specific provisions were not mentioned.

Possible actions that can be taken by the 5th Circuit: • Could support the district court’s decision • Could overturn the district court’s decision • Could determine that the district court overreached • Could determine that the individual mandate is unconstitutional, but the severability analysis needs to be applied • Could remand the case back to the district court to apply the severability analysis • Could apply the severability analysis itself • Could dismiss the case entirely due to the standing issue Opioid Litigation There have been around 1,100 suits filed over the past ten years by states, their political subdivisions, insurance carriers, hospitals, individuals, tribes, and tribal organizations against manufacturers. All of the cases that were filed in federal court have been consolidated into one court in Ohio with Judge Polster presiding. Consolidation of the cases is a legal tool called multi-district litigation (MDL).

The judge has established a committee that is working with the plaintiffs. There is also a tribal liaison committee that provides advice to the broader committee on Indian specific issues. Is The tribal leadership committee has met with state attorney generals and has reached an agreement in the instance of a settlement to carve out a piece of the settlement to be directed to tribes.

The litigation track is moving forward and the settlement tract I also moving forward, but it is not quite as active. It should grow increasingly active as the October trial date draws closer. Several of the plaintiffs (cities and counties) filed a motion to create a class for the sole purpose of negotiating a settlement

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between those plaintiffs (tribes are not included) and the defendants. If that model is ultimately accepted by the court and members of those two plaintiff classes, it might be a model for tribes to utilize.

Key Questions and Responses Q: How were Blackfeet Nation and Muscogee (Creek) Nation chosen for inclusion in the tribal bellwether test cases?

A: I don’t know. I wasn’t in the room when they were picked, but I think the idea was to find examples of tribes that fit a profile that could be used to make assumptions about the other tribal plaintiffs.

Brett Weber, Congressional Relations Coordinator & Shervin Aazami, MPH, Policy Analyst, NIHB Mr. Weber provided an update on efforts to reauthorize the Special Diabetes Program for Indians (SDPI) which expires on September 30. The Senate Committee on Health, Education, Labor and Pensions (HELP) introduced legislation in February to flat fund SDPI for five years. On the House side, NIHB was advocating for a five-year reauthorization with a funding increase. Initial legislation on the House side included a hike. Unfortunately, during the markup, the House HELP subcommittee changed the proposed bill to included flat funding for four years. Advocates are continuing to work to secure an increase in funding to $200 million per year for five years.

Mr. Aazami provided an update on appropriations. When the House began there work on FY 2020 appropriations, they dismissed all of President Trump’s proposed cuts. The bill that funds the IHS that passed House includes about a $ 530 million increase. The House has approved a deeming resolution (ballpark figures) to begin working on next year’s funding packages. It was necessary to use estimates because Congress has yet to pass a budget deal that sets the topline spending numbers for the twelve appropriations bills. So, even though the House has completed ten out of twelve appropriations bills for FY 2020, they used deeming numbers. The Senate has not begun working on any funding packages.

There are two bills in the House and one in the Senate that would authorize advance appropriations.

H.R. 1128 would authorize advance appropriations for both the BIA and IHS. H.R. 1135 would provide advance appropriations for the IHS only. The bill on the Senate side is a companion bill (identical) to H.R. 1128.

H.R. 1135 amends section 825 of the Indian Healthcare Improvement Act and would provide advance appropriations for services and facilities; whereas, H.R. 1128 is more of a broader authorization bill for advance appropriations. H.R. 1128 will provide advance appropriations for the IHS services line item and contract support costs, not for facilities.

Action Items Identified • Continue to support advocacy efforts to secure reauthorization for SDPI with an increase in funding • Potentially advocate for a legislative fix to change SDPI’s structure as a competitive grant program • Continue to advocate for advance approporaitons

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TSGAC Nomination

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IHS Dear Tribal Leader Letters

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DEPARTMENT OF HEALTH & HUMAN SERVICES

Public Health Service Indian Health Service Rockville MD 20857

SEP 04 2019 Dear Tribal Leader and Urban Indian Organization Leader: I am writing to initiate Tribal Consultation and Urban Confer to seek input on the memorandum of understanding (MOU) and related performance measures between the Department of Veterans Affairs, Veterans Health Administration and the Department of Health and Human Services, Indian Health Service. Our first event will be held on September 16, 2019, in Pechanga, California.

Our Federal agencies entered into an initial MOU to improve access and health outcomes for American Indian and Alaska Native Veterans in February 2003. Building upon a decade of successful collaboration and further established mutual goals to advance collaboration, coordination, and resource-sharing, we entered into a new MOU in October 2010. Consistent with our efforts to promote excellence and quality, our agencies meet quarterly to discuss and identify improvements to the October 2010 MOU that will improve access and health care outcomes for American Indian and Alaska Native Veterans.

On March 21, 2019, the U.S. Government Accountability Office (GAO) released a report entitled, “VA and Indian Health Service: Actions Needed to Strengthen Oversight and Coordination of Health Care for American Indian and Alaska Native Veterans” (GAO-19-291). The report recommended that as our two agencies revise the MOU and related performance measures, we should ensure these measures are consistent with key attributes of successful performance measures, including having measurable targets. A full copy of the GAO report is available on the GAO Web site at: https://www.gao.gov/products/GAO-19-291.

We invite you to join us at our first in-person session on Monday, September 16, 2019, from 12:30 p.m. – 2:30 p.m. (Pacific Time) at the Pechanga Casino & Resort, located at 45000 Pechanga Parkway, Temecula, California. During this session, you will have an opportunity to learn about the MOU and related performance measures, ask questions, and provide input to Federal officials.

The session will be free and open to the public as part of the pre-conference day of the National Indian Health Board Tribal Health Conference.

This session will be the first of several joint consultation and confer sessions. We will provide further details soon. Thank you for helping advance our partnerships and enhance care delivery for American Indian and Alaska Native Veterans.

Sincerely, /Michael D. Weahkee/ RADM Michael D. Weahkee, MBA, MHSA Assistant Surgeon General, U.S. Public Health Service Principal Deputy Director

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DEPARTMENT OF HEALTH & HUMAN SERVICES

Public Health Service Indian Health Service Rockville MD 20857

AUG 7 2019 Dear Tribal Leader: I am writing to announce the new solicitation for the Fiscal Year (FY) 2020 Indian Health Service (IHS) Joint Venture Construction Program (JVCP). The IHS JVCP pre-application deadline is October 11, 2019.

The authorization for the JVCP is in Section 818(e) of the Indian Health Care Improvement Act, P.L. 94-437 and codified at 25 U.S.C 1680h(e).

Under a JVCP agreement, a federally recognized Tribe or Tribal Organization expends Tribal, private, or other available non-IHS funds for the acquisition or construction of a health care facility that meets the IHS planning, environmental review, sustainability, design, and construction requirements. In exchange, the IHS will request that Congress fund the staffing and operations of the health care facility under a no-cost, 20-year lease.

Additional information, along with the IHS FY 2020 JVCP application package, is available on the IHS Web site at https://www.ihs.gov/dfpc/programs/#jvcp.

If you have any questions, please contact LCDR Omobogie Amadasu, P.E., Division of Facilities Planning and Construction, IHS, by telephone at (301) 443-4751.

Sincerely, /Michael D. Weahkee/ RADM Michael D. Weahkee, MBA, MHSA Assistant Surgeon General, U.S. Public Health Service Principal Deputy Director

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DEPARTMENT OF HEALTH & HUMAN SERVICES

Public Health Service Indian Health Service Rockville MD 20857

AUG 2 2019 Dear Tribal Leader and Urban Indian Organization Leader: As a next step of the Tribal Consultation and Urban Confer activity related to the distribution mechanism for behavioral health initiative funding, I am writing to announce a 60-day comment period to seek your input and comments on recommendations by the Indian Health Service (IHS) National Tribal Advisory Committee on Behavioral Health (NTAC) based on the input gathered from the initial comment period that closed in August 2018.

As part of this Tribal Consultation and Urban Confer activity, I tasked the NTAC to review the input gathered from the initial comment period and to develop recommendations for the IHS to consider to address the explanatory statement in the Consolidated Appropriations Act of 2018, which encourages the IHS to transfer behavioral health initiative funding through Indian Self-Determination and Education Assistance Act compacts and contracts (as opposed to grants) to ensure that contract support costs are authorized and payable. Since October 2018, the NTAC convened three meetings to complete this task.

On June 17, 2019, the NTAC presented its recommendations to me and senior staff in Rockville, Maryland. Attendees included leadership from other IHS Tribal advisory committees, such as the Tribal Self-Governance Advisory Committee and the Direct Service Tribes Advisory Committee, and representatives from the National Council of Urban Indian Health and the National Indian Health Board.

I have enclosed the NTAC recommendations for your review and comment. Meeting agendas and summaries from the NTAC sessions are also available on the IHS Web site at https://www.ihs.gov/dbh/consultationandconfer/moreinformation/.

Written comments will be accepted by e-mail or postal mail. The deadline to provide comments is Tuesday, October 1, 2019.

Please send comments by E-MAIL to:

consultation@ihs.gov or urbanconfer@ihs.gov Subject Line: IHS Behavioral Health Funding

Please send comments by POSTAL MAIL to: RADM Michael D. Weahkee Principal Deputy Director Indian Health Service 5600 Fishers Lane, Mail Stop: 08E86 Rockville, MD 20857 Attention: IHS Behavioral Health Funding

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Continued – Tribal Leader and Urban Indian Organization Leader A Tribal Consultation and Urban Confer comment summary is provided online at https://www.ihs.gov/sites/newsroom/themes/responsive2017/display_objects/documents/2018_L etters/Enclosure_BH_InitiativeFundingSummary_12112018.pdf.

I look forward to your input and comments on the NTAC recommendations.

Thank you for your support and partnership in addressing important behavioral health issues in our communities. If you have questions, please contact Ms. Michele Muir-Howard, Staff Analyst, IHS Division of Behavioral Health, by telephone at (301) 443-2038, or by e-mail at michele.muir-howard@ihs.gov.

Sincerely, /Michael D. Weahkee/ RADM Michael D. Weahkee, MBA, MHSA Assistant Surgeon General, U.S. Public Health Service Principal Deputy Director Enclosure: National Tribal Advisory Committee on Behavioral Health (NTAC) Recommendations

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DEPARTMENT OF HEALTH & HUMAN SERVICES

Public Health Service Indian Health Service Rockville MD 20857

AUG 6 2019 Dear Tribal Leader: I am writing to inform you of the results of Tribal Consultation on Indian Health Service (IHS) Indian Health Manual (IHM), Part 6 – Services to Tribal Governments and Organizations, Chapter 3 – Contract Support Costs (CSC) (“CSC policy”), section 6-3.2E(3) – Alternative Methods for Calculating Indirect Costs Associated with Recurring Service Unit Shares (also known as the “97/3 Method” or “97/3 Split”).

Today, I signed an updated IHM CSC Chapter. The CSC policy serves as a guide for the IHS and Tribes in the preparation, negotiation, determination, payment, and reconciliation of CSC funding used to support new, expanded, and ongoing services provided through contracts and compacts pursuant to the Indian Self-Determination and Education Assistance Act (ISDEAA).

In April 2018, the IHS engaged in Tribal Consultation on section 6-3.2(E) of the CSC policy as a result of the decision in December 2017 to temporarily rescind the section of the policy to evaluate its conformance with the statutory authority of the ISDEAA at 25 U.S.C. § 5325(a). Given the technical nature of the section, the IHS sought advice and recommendations from the IHS CSC Workgroup. This led to formal initiation of Tribal Consultation with a 30-day comment period to gather input on replacing existing language within section 6-3.2E(3) of the policy. From the initial comment period, the IHS received 37 comments from Tribes and Tribal Organizations. Please refer to the Tribal Consultation Summary Report enclosed with this letter.

The significance and importance of the CSC policy provision attracted attention from the highest levels of government. The input helped to inform internal deliberations. I would like to point out key updates in section 6-3.2E(3), as well as, technical edits made to the guiding principles found in section 6-3.1(B). For your reference, I have enclosed a copy of the updated section 6-3.2E(3).

Clarification to Applicability Date of the Provisions of Section 6-3.2E(3) by Reference to Fiscal Year (FY) (Section 6-3.2E(3)): The updated section replaces “in or after FY 2016” with “for ISDEAA agreements entered into in or after FY 2017.”

Explanation: When the IHS initiated activities to update the CSC policy in 2016, the IHS intended for the new CSC policy to apply to ISDEAA agreements with performance periods of FY 2016 or later, in order to align with implementation of the updated CSC policy.

Tribes and Tribal Organizations expressed concern that applying changes of an updated policy could negatively impact CSC already awarded under agreements from prior years.

The IHS conducted Tribal Consultation on the draft CSC policy in FY 2016 with the goal to have the published policy completed in FY 2016. However, publication of the CSC policy occurred in FY 2017. The failure to change 2016 to 2017 was an oversight. The revision to this section makes the technical correction, consistent with its original intent and comments from Tribes and Tribal Organizations.

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Continued – Tribal Leader Clarification to Alternative A to Underscore Mutual Agreement on Method Used for Calculating Indirect Costs (IDC) for Service Unit Shares (Section 6-3.2E(3)(a)): The updated section clarifies that the awardee and the Area Director or his or her designee shall jointly determine, on a case-by-case basis, the appropriate method for calculating IDC associated with recurring Service Unit shares and the remaining IDC that may be eligible for CSC funding.

Explanation. The IHS clarified the section to ensure consistency with the ISDEAA when choosing an option for calculating IDC associated with recurring Service Unit shares and the remaining IDC that may be eligible for CSC funding (Alternative A or Alternative B).

The prior version of section 6-3.2E(3) stated that “the awardee shall elect the method” to determine the amount of IDC associated with the Service Unit shares. The policy clarification removes barriers to ensure consistency with the ISDEAA. Technical Edits to Guiding Principles (Section 6-3.1(B)(4) and (18)): The revised section of the guiding principles removes guiding principle 4 in its entirety, “The chapter is designed to assure that the perfect does not become the enemy of the good.” The revised section updates guiding principle 18 to read, “The chapter will be reassessed on a regular basis and updated as needed.”

The guiding principles have been renumbered accordingly 1-17.

Explanation: The IHS removed guiding principle 4 in its entirety. Additional revisions were made for clarity. The update to guiding principle 18 (now renumbered 17) to add, “… and update as needed,” reflects the IHS commitment to review and update the CSC policy on an ongoing basis. The updates to this section support the strategic goals of the IHS to strengthen IHS management and operations through continuous quality improvement.

The IHS publishes its policies in the IHM. The updated CSC policy will be mailed to you soon.

You may access the policy on the IHS Web site at: https://www.ihs.gov/ihm/pc/part-6/p6c3/.

If you have any questions, please contact the IHS Office of Direct Service and Contracting Tribes by telephone at (301) 443-1104.

Sincerely, /Michael D. Weahkee/ RADM Michael D. Weahkee, MBA, MHSA Assistant Surgeon General, U.S. Public Health Service Principal Deputy Director Enclosures: Updated Contract Support Cost Section 6-3.2E(3) Tribal Consultation Summary Report

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INDIAN HEALTH MANUAL – PART 6, CHAPTER 3 – CONTRACT SUPPORT COSTS

UPDATED SECTION 6-3.2E(3) –– CHANGES IN BOLD FONT (3) Alternative Methods for Calculating IDC Associated With Recurring Service Unit Shares. The provisions of this section E(3) shall apply to the negotiation of indirect CSC funding for ISDEAA agreements entered into in or after FY 2017 and to the calculation of duplication under 25 U.S.C. § 5325(a)(3), when: i) an awardee assumes a new or expanded PFSA or added staff associated with a joint venture (in which case the review is limited to those new or expanded PFSA or those additional staff); ii) an awardee includes new types of costs not previously included in the IDC pool that is associated with IHS programs, resulting in a change of more than 5% in the value of the IDC pool (in which case the review will be conducted under Alternative A and will be limited to those new types of costs); or iii) an awardee proposes and renegotiates the amount.

Pursuant to the above circumstances, the awardee and the Area Director or his or her designee shall jointly determine, on a case-by-case basis, the appropriate method for determining the amount of IDC associated with the Service Unit shares and the remaining IDC that may be eligible for CSC funding, to identify duplication, if any, pursuant to 25 U.S.C. § 5325(a)(3), using one of two options listed below, or any other mutually acceptable approach. a.

Alternative A. The awardee and the Area Director or his or her designee shall conduct a case-by-case detailed analysis (Manual Exhibit 6-3-D) of Agency Service Unit share expenditures to identify any IDC transferred in the Secretarial amount. The IDC funded in the Service Unit shares will be deducted from the awardee's direct costs and total IDC, not to exceed the amount included for that same cost in the awardee's IDC pool that would be allocable to IHS under the IDC rate, to avoid duplication under 25 U.S.C. § 5325(a)(3) when determining the indirect CSC funding amount as described above in 6-3.2E(1).

b.

Alternative B. The awardee and the Area Director or his or her designee will apply the following "split" of total Service Unit shares, the 97/3 method (Manual Exhibit 6-3-E): i.

97% of the Service Unit shares amounts will be considered

2019 Tribal Consultation Results on CSC Policy Section 6-3.2E(3)

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INDIAN HEALTH MANUAL – PART 6, CHAPTER 3 – CONTRACT SUPPORT COSTS

UPDATED SECTION 6-3.2E(3) –– CHANGES IN BOLD FONT as part of the awardee's direct cost base. ii.

3% of the Service Unit shares amounts will be considered as IDC funding.

iii.

If the amount considered IDC funding (3 percent) exceeds the awardee's negotiated CSC requirements, the awardee shall retain the excess funds for direct costs.

Once these amounts are computed, they will be used in accordance with the terms of the IDC rate agreement (or alternative method provided herein) for calculating the CSC requirement. The remaining IDC need associated with the IHS PFSA will be eligible for payment as indirect CSC, as provided in this chapter and 25 U.S.C. § 5325(a)(2)-(3). Manual Exhibit 6-3-D illustrates how Alternative A (a detailed analysis) is calculated and Manual Exhibit 6-3-E illustrates how Alternative B (the 97/3 method) is calculated.

2019 Tribal Consultation Results on CSC Policy Section 6-3.2E(3)

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REPORT ON THE TRIBAL CONSULTATION FOR THE INDIAN HEALTH SERVICE CONTRACT SUPPORT COSTS POLICY On April 13, 2018, the Indian Health Service (IHS) formally initiated Tribal Consultation on section 6-3.2E(3) – Alternative Methods for Calculating Indirect Costs Associated with Recurring Service Unit Shares (“97/3 Split” or “97/3 Method”) of the contract support costs (CSC) policy in the Indian Health Manual, Part 6 – Services to Tribal Governments and Organizations, Chapter 3 – Contract Support Costs. The Tribal Consultation included a 30-day comment period, to solicit input on replacing the existing language within section 6-3.2E(3) of the CSC policy.

A copy of the April 13, 2018, letter to Tribal Leaders is available on the IHS website at: https://www.ihs.gov/newsroom/includes/themes/responsive2017/display_objects/documents/2018_L etters/DTLL_CSC_04132018.pdf The Tribal Consultation on the draft policy statement concluded on May 18, 2018. After careful review of all comments received from the Tribal Consultation, the IHS made a decision to update the IHS CSC policy.

Background Building off of the CSC Tribal Consultation activities between the years of 2012-2015, the Federal and Tribal members of the IHS CSC Workgroup worked aggressively and diligently in 2016 to review and make policy recommendations for IHS to consider in updating a 10-year-old policy.

This required extensive consideration of major critical events such as the Supreme Court’s decision in Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012) and subsequent legislation, e.g., Fiscal Year 2014 Consolidated Appropriations Act. The IHS considered the CSC Workgroup’s recommendations based on the best, available facts and information used to make a fair and impartial policy decision. The IHS fully engaged in Tribal Consultation on the draft CSC policy prior to making final policy decisions and published the revised CSC policy on October 26, 2016.

Critical Event After a year of implementing the revised CSC policy, IHS became aware that section 6-3.2E(3) may not conform in all cases with the statutory authority of the Indian Self-Determination and Education Assistance Act (ISDEAA) at 25 U.S.C. § 5325(a). As a result of this critical event, the IHS notified Tribal leaders on December 21, 2017, by letter, that effective immediately, the IHS temporarily rescinds section 6-3.2E(3) of the CSC policy.

A copy of the December 21, 2017, letter to Tribal Leaders is available on the IHS website at: https://www.ihs.gov/newsroom/includes/themes/responsive2017/display_objects/documents/2017_L etters/59018-1_DTLL_12212017.pdf In accordance with the IHS Tribal Consultation policy, as a preliminary step in the Tribal Consultation process, the IHS sought the advice and recommendations of its joint Federal-Tribal Workgroup – the IHS CSC Workgroup. The CSC Workgroup, is established to develop recommendations on policy and address technical aspects of its implementation on an on-going basis.

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The IHS CSC Workgroup met on March 6-7, 2018, in Albuquerque, New Mexico. At the beginning of the meeting, the IHS reiterated its charge to this workgroup to address issues and complete work needed to further develop and/or modify the IHS CSC policy and practices. Specifically, on whether to amend, reinstate, or permanently rescind section 6-3.2E(3) of the CSC policy.

Announcement The IHS considered the CSC Workgroup recommendations and formally initiated Tribal Consultation on April 13, 2018, by sending out a letter to Tribal Leaders, with a 30-day comment period, to solicit input on replacing the existing language within section 6-3.2E(3) of the CSC policy (that is temporarily rescinded) with the revised language – changes are in bold text: 3. Alternative Methods for Calculating IDC Associated With Recurring Service Unit Shares. The provisions of this section E(3) shall apply to the negotiation of indirect CSC funding in or after FY 2016 and to the calculation of duplication under 25 U.S.C. § 5325(a)(3), when: i) an awardee assumes a new or expanded PFSA or added staff associated with a joint venture (in which case the review is limited to those new or expanded PFSA or those additional staff); ii) an awardee includes new types of costs not previously included in the IDC pool that is associated with IHS programs, resulting in a change of more than 5% in the value of the IDC pool (in which case the review will be conducted under Alternative A and will be limited to those new types of costs); or iii) an awardee proposes and renegotiates the amount.

Limited to the above circumstances, the awardee shall elect the method for determining the amount of IDC associated with the Service Unit shares and the remaining IDC that may be eligible for CSC funding, to identify duplication, if any, pursuant to 25 U.S.C. § 5325(a)(3), using one of two options listed below or any other mutually acceptable approach. In connection with 3.iii, above, if an earlier funding agreement reflects a prior identification of duplicated Service Unit costs, then the parties shall negotiate a new duplicate amount considering the alternatives available under Alternative A, Alternative B, or any other mutually acceptable approach.

In addition, the Tribal Consultation offered additional options, to address concerns that were not addressed by the IHS CSC Workgroup’s proposal. For example, to account for those instances in which the 97/3 Split provision of the 2016 CSC policy will not conform to the requirements of the ISDEAA, a bilateral decision, rather than a unilateral decision, should be jointly made to ensure compliance with the ISDEAA. Changes are in bold text: •

Alternative Methods for Calculating IDC Associated With Recurring Service Unit Shares. The provisions of this section E(3) shall apply to the negotiation of indirect CSC funding for ISDEAA agreements entered into in or after FY 2017 and to the calculation of duplication under 25 U.S.C. § 5325(a)(3), when: i) an awardee assumes a new or expanded PFSA or added staff associated with a joint venture (in which case the review is limited to those new or expanded PFSA or those additional staff); ii) an awardee includes new types of costs not previously included in the IDC pool that is associated with IHS programs, resulting in a change of more than 5% in the value of the IDC pool (in which case

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the review will be conducted under Alternative A and will be limited to those new types of costs); or iii) an awardee proposes and renegotiates the amount.

Two options to consider for the following paragraph: Option 1:

Pursuant to the above circumstances, the awardee and IHS shall negotiate the amount of IDC associated with the Service Unit shares and the remaining IDC that may be eligible for CSC funding, to identify duplication, if any, pursuant to 25 U.S.C. § 5325(a)(3), using one of two options listed below, or any other mutually acceptable approach.

Option 2:

Pursuant to the above circumstances, the awardee and the Area Director or his or her designee shall jointly determine, on a case-by-case basis, the appropriate method for determining the amount of IDC associated with the Service Unit shares and the remaining IDC that may be eligible for CSC funding, to identify duplication, if any, pursuant to 25 U.S.C. § 5325(a)(3), using one of two options listed below, or any other mutually acceptable approach.

Gather Input In order to ensure that Tribes and Tribal organization were able to provide meaningful input, the IHS opened a 30-day comment period. The IHS accepted input by e-mail or postal mail. In addition, the IHS provided updates during the following events: • • •

April 23, 2018 – Annual Tribal Self-Governance Conference – Albuquerque, New Mexico April 30 – May 1, 2018 – IHS Direct Service Tribes Advisory Committee Meeting – Albuquerque, New Mexico May 14, 2018 – IHS All Tribal and Urban Indian Organization Leader Call

The IHS received 37 unique letters providing comments (7 of which are from Tribal organizations, consortia or health boards representative of multiple Tribal views). In summary, comments carried two central themes: • •

Majority of comments recommend to immediately reinstate 97/3 policy provision All disagree with Agency’s process of notification of policy change via letter notification to Tribal leaders (i.e., lack of Tribal Consultation prior to making decision to temporarily rescind 97/3)

Table 1.1 Tribal Consultation Summary Table provides a summary matrix of comments received during the 30-day comment period by Tribe or Tribal organization and comments.

Decision The IHS communicated its final decision on the CSC policy to the IHS CSC Workgroup by teleconference in parallel to notifying Tribes and Tribal organizations Leaders by letter.

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Reporting The IHS meets the Tribal Consultation policy reporting requirements by reporting Tribal Consultation activities annually through the HHS Tribal Consultation Report.

The IHS has prepared this report and will post the summary of comments that were gathered during the 30-day comment period on the IHS CSC website, located at: https://www.ihs.gov/odsct/contract-support-costs.

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Table 1.1 Tribal Consultation Comment Summary Table 1

Tribe or Tribal Organization Alabama-Coushatta Tribe of Texas

Recommendations:

Comment

1) The Tribe recommends IHS reinstate the original language agreed to in 2016.

2) Alternatively, the tribe would be comfortable with the revised language by the CSC Workgroup on March 6-7.

Additionally, the Tribe does not agree and rejects that the IHS force a line-by-line when 97/3 exists.

2

Alaska Native Health Board

Recommendations: 1) 97/3 provision should remain as originally published in October 2016.

2) If a choice is required between the 3 options outlined in the letter the CSC WG recommendation is the only acceptable option.

The Health Board rejects the two IHS proposed options in the DTLL. The Health Board believes that limiting the option for negotiations will result in putting the Agency in a position to force tribes into contentious negotiations and lead to litigation.

3

Alaska Native Tribal Health Consortium (ANTHC)

Recommendations: 1) 97/3 provision should remain as originally published in October 2016.

2) If a choice is required between the 3 options outlined in the letter the CSC WG recommendation is the only acceptable option.

The Health Board rejects the two IHS proposed options in the DTLL.

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Tribe or Tribal Organization

4

Comment The Health Board believes that limiting the option for negotiations will result in putting the Agency in a position to force tribes into contentious negotiations and lead to litigation.

Arctic Slope Native Association Recommendations: 1) The CSC WG recommendation is the only acceptable option.

Arctic Slope Native Association considers the other two options unsatisfactory.

The Association believes that the options are unsatisfactory because it will lead to a contentious negotiation and litigation, which, they believe is the opposite goal of the policy.

5

California Rural Indian Health Board

Recommendations: 1) The ISDEAA and OMB define and determine the calculation of Indirect and indirect type costs.

2) CRIHB wants clarification under 25 U.S.C 5325a of the options for Chapter 3, Section 6-3.2E3 iii of the IHM for the 2016 CSC policy.

3) IHS must clearly state that its new CSC rule does not apply to annual re-issuances, including those of negotiated “indirect-type costs.” (Believes that the new 97/3 rule would only be applied to new and expanded contracts).

4) CRIHB approves the CSC WG recommendation for changes to the 2016 policy offered at the March 6-7 meeting, but wants to add the following: If earlier funding agreements did not indicate duplicated Service Unit Costs, as in the case of California IHS Area Tribes and Tribal Organizations, the Tribe or Tribal Organizations would have the option of a previously acceptable method, or any other mutually acceptable approach.

5) Disagrees with IHS’s concern about the proposed language not accounting for all instances in which

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Tribe or Tribal Organization

Comment the 97/3 will not conform to the requirements of ISDEAA. Wants to know what specific provision of the ISDEAA does IHS cite to require the IHS a mutually acceptable approach, rather than the method elected by the awardee?

6

Cherokee Nation

Recommendations: 1) IHS reinstate the original language agreed to by the tribes and IHS in October 2016 and the minor changes approved by the WG in March 2018.

The Nation agrees with the WG recommendation but not the IHS proposed options

7

Chickasaw Nation

Recommendations: 1) IHS reinstate the original language agreed to by tribes in October 2016.

2) Alternatively, would be comfortable with the revised language recommended by the CSC WG on March 6-7, 2018.

Oppose IHS's proposal to change the applicability of the duplication options in subsection E(3).

8

9

Chippewa Cree Tribe of the Rocky Boy’s Reservation

Choctaw Nation of Oklahoma

Recommendations: 1) Rejects the two IHS proposed options and accepts the CSC WG recommendation.

Believes that the two IHS proposed options are unsatisfactory because it will lead to increase litigation, complications, and make the process more contentious.

Recommendations: Agrees with the CSC WG recommendations and disagrees with the other proposed recommendations

10

Citizen Potawatomi Nation

Recommendations: 1) 97/3 should remain as originally agreed upon by the CSC WG. 2) The only other acceptable option is the unanimous CSC WG recommendation.

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Tribe or Tribal Organization

Comment Disagrees with IHS's view and understanding of duplication. Believes the IHS proposed options will lead to more ligation.

11

Confederated Tribes of Siletz Indians Tribal Council

Recommends that IHS adopt the CSC Workgroup’s (Albuquerque meeting in March 2018) proposal and not the additional or alternative changes described in the “Dear Tribal Leader” letter dated April 3, 2018.

12

Cowlitz Indian Tribal Council

Recommendations: 1) Wants the 97/3 that was originally agreed upon in the 2016 policy to remain the same.

2) However, if IHS is determined to change the policy then accepts the CSC WG recommendation.

Oppose IHS's proposal to change the applicability of the duplication options in subsection E(3).

13

Gila River Indian Community and Gila River Health Care

14

Hoopa Valley Tribal Council

15

Inter-Tribal Council of the Five Civilized Tribes (ITC); Cherokee, Chickasaw, Chocktaw, Muscogee (Creek) and Seminole Nations via Cherokee Nation

16

Jamestown S’Klallam Tribe

17

Kenaitze Indian Tribe

18

Laguna Pueblo

19

Little River Band of Ottawa Indians

Gila River comments include (1) 97/3 should be reinstated, (2) extended Tribal consultation on alternative methods, and (3) CSC should include options for negotiation based on Tribes’ different needs.

1. Reinstate 2. Enact proposed language from CSC Workgroup 3. Oppose “for ISDEAA agreements entered into in or after FY2017” 1. Strongly opposes proposed alternatives to revise CSC policy 2. Supports the limited changes to section 6-3.21 (3) of the CSC Policy recommended by the IHS CSC Workgroup and urges the Acting IHS Director to implement it immediately upon close of the Tribal Consultation period.

1. Enact proposed language from CSC Workgroup 2. Reinstate 3. Oppose “for ISDEAA agreements entered into in or after FY2017” 1. Enact proposed language from CSC Workgroup Supports Option 2 – allows for a case by case determination 1. Enact proposed language from CSC Workgroup

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20 21 22

Tribe or Tribal Organization Lummi Indian Business Council MATCH-E-BE-NASH-SHEWISH Band of Pottawatomi Indians aka Gun Lake Tribe Menominee Indian Tribe of WI

Comment 1. Enact proposed language from CSC Workgroup 2. Oppose “for ISDEAA agreements entered into in or after FY2017” 1. Enact proposed language from CSC Workgroup 1. Reinstate 2. Enact proposed language from CSC Workgroup 3. Oppose “for ISDEAA agreements entered into in or after FY2017” 1. Reinstate 2. Enact proposed language from CSC Workgroup 3. Oppose “for ISDEAA agreements entered into in or after FY2017” 1. Reinstate 2. Enact proposed language from CSC Workgroup 3. Opposes IHS recommendations IHS decision to rescind provisions of 97/3 is inappropriate without Tribal consultation, Navajo Nation requests (1) IHS to reinstate October 26, 2016 CSC Policy, (2) supports the IHS CSC WG recommendation: “Limited to the above circumstances, the …or any other mutually acceptable approach.” (3) Two new Agency options strip a Tribe of the right to choose, and (4) does not agree to a detailed line-by-line negotiation, prefers alternative method like 97/3.

23

Mississippi Band of Choctaw Indians

24

Muscogee Creek Nation

25

Navajo Nation

26

Northwest Portland Area Indian Health Board

Recommend the IHS adopt the WG’s proposal and the additional or alternative changes described in the April 13, 2018 DTLL letter. Oppose IHS proposal to change the application of duplication in subsection E(3).

27

Oneida Nation

Concerns include (1) IHS responsibility to uphold Government-to Government relations with Tribes, (2) policy changes are based on hypotheticals, and (3) IHS amend CSC policy to and incorporate the WG’s recommendation that requires the awardee to elect the method for determining the amount of indirect costs associated with the Service Unit Share and the remaining indirect cost that may be eligible for CSC funding, to identify duplication, pursuant to 25 U.S.C. § 5325(a)(3), using the two options that IHS proposes or any other mutually acceptable approach.

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Tribe or Tribal Organization Sac and Fox Nation

Comment Tribe (1) opposes Agency’s unilateral action to suspend IHS CSC Policy pertaining to 97/3 method and (2) supports CSC WG revised language recommended on March 6-7, 2018.

29

Southcentral Foundation, Alaska Native Tribal Organization, Cook Inlet Region, Inc.

Emphasize the importance of Tribal consultation and request that IHS leave the current Manual language unchanged or use language developed by the CSC Workgroup.

30

Southeast Alaska Regional Health Consortium

Comments include (1) process and importance of Tribal Consultation, (2) 97/3 provisions should remain as originally published in October 2016, and (3) WG recommendation is the only acceptable option.

31

Spirit Lake Tribe

Comments include (1) process and importance of Tribal Consultation, (2) 97/3 provisions should remain as originally published in October 2016, and (3) WG recommendation is the only acceptable option.

32

Suquamish Tribe

Tribe (1) agree with Tribal representatives on CSC WG to leave the policy as it is currently written, (2) adopt WG’s compromise language and (3) oppose IHS proposal to change the applicability of the duplication option the subsection E(3).

33

Susanville Indian Rancheria via VanAmberg, Rogers, Yepa, Abeita & Gomez, LLP

Tribe (1) agree with Tribal representatives on CSC WG to leave the policy as it is currently written, (2) adopt WG’s compromise language and (3) oppose IHS proposal to change the applicability of the duplication option the subsection E(3).

34

Taos Pueblo via VanAmberg, Rogers, Yepa, Abeita & Gomez, LLP

Concerns include (1) Agency’s unilateral action to rescind portion of CSC Policy, i.e., 97/3, (2) adopts comments submitted on behalf of Susanville Indian Community in letter of April 13, 2018, and (3) requests IHS adopt the WG recommendation for addressing IHS’s concerns regarding the 97/3 method as set out in the second paragraph of the IHS April 13, 2018, letter.

35

Ysleta de Sur Pueblo

Comments include (1) disappointment with Agency’s unilateral action to suspend IHS CSC policy, (2) recommend IHS reinstate original language agreed to by Tribes and IHS in October 2016, and (3) support revised

28

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Tribe or Tribal Organization

36

San Carlos Apache Tribe

Comment language recommended by the CSC WG on March 6-7, 2018.

Recommendations: 1) Reinstate the 97/3 that was originally agreed upon in the 2016 policy.

2) As an alternative, Tribe is comfortable with policy recommendation made by CSC WG in March 2018.

37

Tribal Self-Governance Advisory Committee

Supports the CSC Workgroup recommendation and urge for Tribal consultation. The TSGAC does not support alternatives outlined in the IHS April 13, 2018, letter.

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TSGAC Correspondence

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IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE c/o Self-Governance Communication and Education P.O. Box 1734, McAlester, OK 74501 Telephone (918) 302-0252 ~ Facsimile (918) 423-7639 ~ Website: www.Tribalselfgov.org

Sent electronically to Francis.collins@nih.hhs.gov August 15, 2019 Francis S. Collins, M.D., Ph.D. Director Office of the Director National Institutes of Health Mail Stop: 0148 1 Center DR Bethesda, MD 20814 RE:

National At-Large Member Nomination for the National Institutes of Health Tribal Advisory Committee

Dear Dr. Collins: On behalf of the Indian Health Service (IHS) Tribal Self-Governance Advisory Committee (TSGAC), I would like to nominate Chief of the Mohegan Tribe, Marilynn “Lynn” Malerba, Ph.D., and TSGAC Chairwoman to continue her representation on the National Institutes of Health (NIH) Tribal Advisory Committee (TAC).

During her tenure on the TAC, Chief Malerba has actively engaged in discussions with Tribes across the country on issues of great importance to NIH and provided regular updates to our Committee.

Further, TSGAC suggests that Yvette Roubideaux, M.D., Ph.D. continue to provide technical support to Chief Malerba in her role as a National At-Large Member. Contact information for both is provided for your information below and additional information regarding their qualification is enclosed.

Chief Lynn Malerba Mohegan Tribe 13 Crow Hill Road Uncasville, CT 06382 lmalerba@moheganmail.com

Dr. Yvette Roubideaux Director, Policy Research Center National Congress of American Indians 1516 P Street NW Washington, DC 20005 yroubideaux@ncai.org

Thank you for the opportunity to provide this nomination and your continued support of the government-togovernment relationship. If you need additional information regarding either of these nominees, please contact Jay Spaan, Executive Director of the Self-Governance Communication and Education Tribal Consortium, at jays@tribalselfgov.org. Thank you.

Sincerely,

W. Ron Allen Chairman/CEO, Jamestown S’Klallam Tribe, Co-Chair, IHS TSGAC Enclosure:

CV Resume for Chief Malerba and Dr. Roubideaux

cc:

Jennifer Cooper, Acting Director, Office of Tribal Self-Governance, IHS TSGAC Members and Technical Workgroup Page 43

IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE c/o Self-Governance Communication and Education P.O. Box 1734, McAlester, OK 74501 Telephone (918) 302-0252 ~ Facsimile (918) 423-7639 ~ Website: www.tribalselfgov.org

Submitted via email to: consultation@ihs.gov September 3, 2019 RADM Michael Weahkee Principal Deputy Director Indian Health Service 5600 Fishers Lane Mail Stop: 08E86 Rockville, MD 20857 RE:

Comments on IHS Opioid Funding

Dear RADM Weahkee: On behalf of the Indian Health Service’s (IHS) Tribal Self-Governance Advisory Committee (TSGAC), I write to provide a response to your June 21, 2019 “Dear Tribal Leader and Urban Indian Organization Leader Letter” about development of an IHS Opioid Grant Program. During the recent TSGAC meeting, leadership discussed potential opportunities for the limited funding and make the following recommendations for your consideration.

Though the Special Diabetes Program for Indians (SDPI) has made significant contributions to Diabetes prevention and treatment, the amount of funding available under for the Opioid grant significantly limits its ability to have the same national impact. As such, TSGAC recommends one of two IHS actions. First and preferentially, nationally distribute the funds and minimize data collection and reporting requirements. Second, select a limited number of grantees that focus on prevention or alternative treatments to those afforded in the Substance Abuse and Mental Health Administration’s (SAMHSA) Tribal Opioid Response (TOR) grant.

TSGAC strongly disagrees that the funding should be dispersed through a competitive grant methodology and recommends a formula-driven distribution. Therefore, TSGAC recommends that IHS use the Tribal Size Adjustment (TSA) formula for distribution. IHS already uses the TSA formula to distribute funds. This formula provides a base amount for small Tribes, guaranteeing a certain amount of funds, and an adjustment factor for Tribes serving larger populations. Additionally, if new increases are provided in FY2020, those should be distributed based on the TSA formula. Use of TSA significantly limits administrative costs and responsibilities that can surely be assumed by current IHS HQ or Area Staff. Further, TSGAC requests that IHS explore options to enter into MOU’s with other agencies to increase funding distribution through the formula methodology.

TSGAC recommends leveraging the funding provided to Tribal Epidemiology Centers (TEC) to assist the Tribes in their Areas with data reporting, determining national, local, and regional outcomes, and conducting evaluation activities. However, the TSGAC recommends that in Areas where Tribes do not support continued funding for such assistance, which is currently provided by TECs, Tribes will instead receive the funding to support their own data analysis and reporting, determine local, regional and national outcomes, evaluate program effectiveness, and continue to raise national awareness of behavioral health issues. To the extent other data or

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RE: Comments on IHS Opioid Funding September 3, 2019 information is needed to demonstrate effectiveness, we believe the TECs can work with individual programs to compile that information and produce reports that address this impact.

As noted above, TSGAC strongly disagrees with distribution of these funds through a grant mechanism. However, if grants are award, TSGAC suggests that these funds be awarded to applicants focusing on prevention or other opioid use disorder treatments outside of the limited scope of the SAMHSA Medication Assisted Treatment (MAT) TOR, grants. Part of SDPI’s success is a dual focus on treatment and prevention, however, SAMHSA funds are limited to one particular type of treatment requirement. Not all Tribal communities support or require the use of the MAT. IHS should allow and require grantees to evaluate a different treatment delivery model.

If grants are awarded, TSGAC would suggest that the awards be for a period of time and at a level that would allow for sufficient evaluation and best practices reporting as is also the case for SDPI. IHS should evaluate applications based their ability to assess their proposed scope of work, rather than setting national standards which programs must meet. Additionally, data evaluation should be Tribally-driven.

Finally, TSGAC recommends that less than five percent (5%), if any, of the total appropriation be allocated toward IHS’ grant administrative costs. IHS already has many behavioral health and substance abuse grants with administrative staff to support those awards. Therefore, there should not be any substantial burden to the existing organization if the Agency determines a limited number of grants are to be awarded.

We appreciate the opportunity to provide these comments and look forward to your support in ending one-time grant funding. While the opioid epidemic is an issue TSGAC takes very seriously, it is one among many health crises that our communities face. If you have any questions about our comments or questions, please feel free to contact me at lmalerba@mohegantribe.com. Thank you.

Sincerely,

Marilynn “Lynn” Malerba Chief, Mohegan Tribe Chairwoman TSGAC CC:

Jennifer Cooper, Director, Office of Tribal Self-Governance, IHS TSGAC and Technical Workgroup Members

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IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE c/o Self-Governance Communication and Education P.O. Box 1734, McAlester, OK 74501 Telephone (918) 302-0252 ~ Facsimile (918) 423-7639 ~ Website: www.tribalselfgov.org

Submitted via email to: denise.turk@ihs.gov

September 6, 2019 RADM Michael D. Weahkee, MBA, MHSA Assistant Surgeon General, U.S. Public Health Service Principal Deputy Director Indian Health Service U.S. Department of Health and Human Services 5600 Fishers Lane Rockville, MD 20857 RE:

Recommendation to include Section 105(l) lease information request in FAAB’s Facilities Needs Assessment

Dear RADM Weahkee: On behalf of the Indian Health Service’s (IHS) Tribal Self-Governance Advisory Committee (TSGAC), I write to request that the Facilities Appropriation Advisory Board (FAAB) include a request for Tribes to voluntarily provide information regarding Section 105(l) lease in the Facilities Needs Assessment or a separate and specific data call. This information is critical to the Agency’s ability to estimate required appropriations to fully fund the related costs. Including this request with the existing data could lead to higher participation results and would provide a snapshot of the current environment in which Tribes are providing health care services.

The information requested shall include the following: 1. Does the Tribe/Tribal organization have a compact or contract with the US Department of Health and Human Services pursuant to the Indian Self-Determination and Education Assistance Act (ISDEAA)? a. If yes, go to question 2. b. If no, is the Tribe/Tribal organization considering entering into a compact/contract. If yes, when?

2. Does the Tribe/Tribal organization own or lease a building used for administration or delivery of IHS services under the ISDEAA? a. If yes, go to questions 3 and 4. b. If no, does the Tribe/Tribal organization plan to own or lease a building used for the administration or delivery of IHS services in the future? If yes, go to question 4.

3. Does the Tribe/Tribal organization currently have a section 105 (l) lease with the IHS? a. If yes, go to question 4. b. If no, does the Tribe/Tribal organization plan to enter into a lease with the IHS, and if yes, when? Go to question 4.

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Letter – Indian Health Service RE: Inclusion of Section 105 (l) Lease calculation request in FAAB September 6, 2019 4. List all facilities, with location, age and approximate gross square footage below. Please identify if the facility is Tribally-owned or leased through another party.

Upon receipt and compilation of this data, TSGAC requests that IHS share the information with the 105(l) lease costs estimate Workgroup and the IHS Budget Formulation Workgroup ahead of the Fiscal Year 2022 Final Workgroup Report.

In closing, we appreciate your consideration in including this request for information from the Tribes in the FAAB’s Facilities Needs Assessment. This information is very important in determining future projects of funding Section 105(l) leases. If you have any questions about our recommendations, please feel free to contact me at lmalerba@mohegantribe.com. Thank you.

Sincerely,

Marilynn “Lynn” Malerba Chief, Mohegan Tribe Chairwoman TSGAC CC:

Jennifer Cooper, Director, Office of Tribal Self-Governance, IHS TSGAC and Technical Workgroup Members

Page 47

IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE c/o Self-Governance Communication and Education P.O. Box 1734, McAlester, OK 74501 Telephone (918) 302-0252 ~ Facsimile (918) 423-7639 ~ Website: www.Tribalselfgov.org

Sent electronically to denise.turk@ihs.gov August 28, 2019 RADM Michael D. Weahkee, MBA, MHSA Assistant Surgeon General, U.S. Public Health Service Principal Deputy Director Indian Health Service U.S. Department of Health and Human Services 5600 Fishers Lane Rockville, MD 20857 RE:

Summary of Issues from the Tribal Self-Governance Advisory Committee (TSGAC) Meeting July 15-16, 2019

Dear RADM Weahkee: On behalf of the TSGAC, we thank you for attending the July 15-16th Committee meeting. We appreciate your steadfast leadership and continuing commitment to attend TSGAC meetings and engage in critically important discussions with Tribal leadership. On behalf of the Committee, I have provided a summary of recommendations and comments from the meeting below.

Support establishment of the IHS Negotiations Sub-Workgroup. After several lengthy discussions with the Agency, the TSGAC has taken action to establish a sub-workgroup and assign a number of longstanding tasks for the sub-workgroup to address and develop recommendations for TSGAC consideration and action. This work will include development of recommended changes and updates to the IHS Tribal Self-Governance Program Negotiation Handbook and the IHS Headquarters Programs, Services, Functions and Activities Manual. In order for the workgroup to successfully provide recommendations, TSGAC requests that the Agency fully support the workgroup and assign a few current Headquarters technical staff and Agency Lead Negotiators to actively participate in the sub-workgroup discussions. TSGAC has identified the following Committee and Technical Workgroup members to serve on the subworkgroup: • • • • •

Melanie Fourkiller, Senior Policy Analyst, Choctaw Nation (Oklahoma Representative) Cyndi Ferguson, Self-Governance Analyst, SENSE Inc. (TSGAC Tech Workgroup Member) Terra Branson, Director, Planning, Grants & Self-Governance, Muscogee (Creek) Nation (TSGAC Tech Workgroup Co-Chair) Alberta Unok, Deputy Director, Alaska Native Health Board (TSGAC Tech Workgroup) Candice Skenandore, Self-Governance Coordinator, Intergovernmental Affairs, Communication & Self-Governance, Oneida Nation (TSGAC Tech Workgroup)

Continue Tribal Consultation on the Sanitation Deficiency Systems (SDS) Guidance.

TSGAC is receipt of your letter dated May 24, 2019, which provided notification that the Office of Environmental Health and Engineering (OEHE) intends to issue the updated SDS by September 30, 2019 for use in Fiscal Year 2020. TSGAC appreciates the effort and result of the Tribal Consultation. However, more than one-third of the Tribal comments remain

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TSGAC Summary Letter from July 15-16, 2019 August 28, 2019

unresolved due to “statutory requirements and/or longstanding policy direction.” As TSGAC has reported to you previously, the Sanitation Facility Construction Program and Division has not had a substantive review or update since passage of the Title V of the Indian Self-Determination and Education Assistance Act in 2003. Many of the issues that the Agency suggests “conflict” with this policy and run counter to the tenets of Title V. As such, TSGAC respectfully request that the Agency continue to engage in meaningful discussion with Tribes regarding the outstanding/unresolved Tribal comments received during the consultation period.

Promote the use of Tribal Advisory Committees and Workgroups within the Department of Health and Human Services. TSGAC is aware of Executive Order 13875, “Evaluating and Improving the Utility of Federal Advisory Committees,” which intend to evaluate, reduce, and limit the number of federal advisory committees established under the Federal Advisory Committee Act (FACA). TSGAC asks for your leadership within the Department of Health and Human Services to assert that its Tribal Advisory Committees and Workgroups are not established under FACA, that these Committees and Workgroups serve a critical role in ensuring the Federal Government fulfill the government-to-government relationship and support Tribal consultation, and that Tribal Advisory Committees are essential for effective delivery of programs that serve Tribal Nations and their citizens.

Provide data related to use of the IHS Director’s Emergency Fund, Management Initiatives Fund and Emergency Accreditation Fund. During our discussions at the recent TSGAC meeting, it was clear that additional data and information regarding this funding would be helpful to the Committee’s understanding regarding the purposes and use of these funds.

TSGAC would appreciate additional data regarding the distribution of these funds over the last three years and any written policy associated with the funding source.

Establish a workgroup to assist in development of a formula to project 105(l) lease cost needs. The TSGAC has previously suggested that a technical workgroup may be useful to leverage institutional and field knowledge regarding the expected future costs of 105(l) leases.

TSGAC hopes the Agency will take action on this request soon and consider nominees from the TSGAC and Direct Service Tribes Advisory Committee.

In closing, the TSGAC appreciates our continued partnership and willingness to engage in discussion with the Agency. If you have any questions or would like to discuss these comments in further detail, please contact me at lmalerba@moheganmail.com. Thank you.

Sincerely,

Chief Lynn Malerba, Mohegan Tribe of Connecticut Chairwoman, IHS TSGAC cc:

Jennifer Cooper, Acting Director, Office of Tribal Self-Governance, IHS TSGAC Members and Technical Workgroup

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IHS TRIBAL SELF-GOVERNANCE ADVISORY COMMITTEE c/o Self-Governance Communication and Education P.O. Box 1734, McAlester, OK 74501 Telephone (918) 302-0252 ~ Facsimile (918) 423-7639 ~ Website: www.Tribalselfgov.org

Sent electronically to: Consultation@hhs.gov December 19, 2018 Ms. Stacey Ecoffey, Principal Advisor for Tribal Affairs Office of Intergovernmental and External Affairs U.S. Department of Health and Human Services (HHS) 200 Independence Ave. SW, Room 620-E Washington, DC 20201 RE:

Opportunities to Enhance HHS’ Tribal Consultation Policy – TSGAC Comments

Dear Ms. Ecoffey: On behalf of the Tribal Self-Governance Advisory Committee (TSGAC), I am writing to provide our comments to the Tribal Consultation Policy (TCP) in response to the recent “Dear Tribal Leader Letter”.

First let me state that the TSGAC is greatly appreciative of HHS’s outreach to Tribal leaders on the TCP. A Tribal consultation policy that provides for regular and meaningful consultation and collaboration is of utmost importance to TSGAC and I appreciate the opportunity to provide comments as HHS seeks to enhance its existing policy.

First and foremost, it is important to mention that the Tribal consultation duty arises from the common law trust responsibility to Tribal Nations, which compels the United States to protect Tribal sovereignty and Tribal resources, as well as to provide certain services to our citizens. In that respect, the Federal government’s duty to consult with Tribal Nations has a unique foundation that distinguishes it from decisions to consult with State governments or encourage public participation through the Administrative Procedures Act.1 In addition, consultation and collaboration is meaningful when all parties involved arrive at a complete understanding of all factors and implications of the proposed action and agree on how to move forward.

Consultation should never be viewed as a step in the process that must be completed to check a box.

TSGAC offers the following comments regarding opportunities to enhance the Department’s TCP: 

Accountability & Transparency. Accountability is imperative for a meaningful consultation policy.

When Tribal leaders work hard to identify solutions to problems or provide suggestions to improve Federal delivery of services and do not see their comments reflected in final decisions, it is demoralizing and discouraging. One way the Department can improve its TCP is to increase transparency in the process. Currently, the Department does not publish Tribal comments it receives through consultation— leaving Tribal leaders uncertain whether the input obtained through the consultation was truly considered in the decision-making process.

Other Federal agencies, such as the U.S. Department of Housing and Urban Development, publish Tribal comments provided in response to requests for consultation on its website. This practice gives Tribal governments the opportunity to review all comments provided to the Department and determine whether the comments were reflected in Federal management decisions. Increased transparency in the process will help the Department build trust with Tribal governments and decrease future disagreements between Tribal Nations and the Department.

1

Colette Routel and Jeffrey Holth, Toward Genuine Tribal Consultation In The 21st Century, University of Michigan Journal of Law Reform, Vol. 46:2, 2013.

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Letter: Stacey Ecoffey, Principal Advisor, HHS-OIG RE: Comments on HHS Tribal Consultation Policy



Page 2 of 2 December 19, 2018

Timing and Overlap. Tribes must have ample notice of upcoming Tribal consultations, time to review documentation and to consider the effect of actions on the Tribe and its citizens, and time to prepare written responses for the Department. Tribal leaders often find that Federal agencies and departments operate in a silo—not considering the activities and actions of other Federal departments that also require Tribal attention and resources. Tribal leaders often have to make tough choices on which consultation meeting to attend because more than one agency will schedule consultations on the same day.

The Department’s TCP calls for consultation schedules to be coordinated with its internal Office of Intergovernmental Affairs to avoid duplication or conflicts with other national Tribal events.

We appreciate that HHS acknowledges the many pressures and responsibilities of Tribal leaders.

However, we believe additional actions, such as establishing a mechanism to coordinate with other Federal departments and agencies on their consultation schedules, would enhance the ability of Tribal leaders to focus attention and resources on responding to HHS.



Formal Roles & Responsibilities. HHS stated in a February 4, 2010 document that its consultation policies have benefitted from the establishment of Tribal Advisory Committees. However, it is not clear what role the Secretary’s Tribal Advisory Committee (STAC) plays when it comes to consultation. We believe that a documented role for STAC as it relates to consultation can enhance the Department’s TCP.



Informal Discussions. We believe the Department’s TCP can be strengthened by identifying the importance and need for informal discussions with Tribal officials prior to drafting any policy or rule that will ultimately seek Tribal consultation. Through informal discussions with Tribal leaders that occur prior to drafting policy, HHS will have a better grasp of the issues and can better ensure that proposed language is not based on an incomplete or one-sided understanding of a situation.



Self-Governance. Section 4, Part D of the Department’s TCP recognizes the importance of Tribal SelfGovernance and we appreciate the inclusion of the section in the overall policy. However, we believe the section can be strengthened by incorporating language stating that in cases in which HHS undertakes efforts to formulate policies that have Tribal implications, it will first seek opportunities to encourage Tribal Nations to develop their own policies to achieve program objectives and it will defer to Tribal Nations to establish standards, rather than establishing standards at the Federal level.

Thank you again for the opportunity to provide these comments and for considering ways to enhance the HHS Tribal Consultation Policy. If you have any questions, you can reach me at (860) 862-6192 or via email at lmalerba@moheganmail.com.

Sincerely,

Chief Lynn Malerba, Mohegan Tribe of Connecticut Chairwoman, IHS TSGAC cc: Jennifer Cooper, Director, Office of Tribal Self-Governance, Indian Health Service Jay Spaan, Executive Director, Self-Governance Communication and Education TSGAC and Technical Workgroup Members

Page 51

Summary of Select OIG Reports

Page 52

Report in Brief Date: July 2019 Report No. A-18-17-11400

Why OIG Did This Review Prescription opioids continue to contribute to the opioid overdose epidemic. A prior OIG audit identified high volumes of opioid purchases in IHS communities. In addition, the prior OIG audit of two IHS hospitals determined that IHS did not have adequate information technology (IT) security controls to protect health information and patient safety. The audit also found significant differences in the way the two hospitals carried out their respective IT operations.

We conducted this audit to analyze and compare opioid prescribing and dispensing practices and IT operations at five other IHS hospitals.

Our objectives were to determine whether (1) the hospitals we reviewed prescribed and dispensed opioids in accordance with IHS policies and procedures and (2) IHS’s decentralized IT management structure affected its ability to deliver adequate IT and information security services at its hospitals in accordance with Federal requirements.

How OIG Did This Review We reviewed IHS’s opioid prescribing and dispensing practices and information system general controls at five IHS hospitals. In addition, we reviewed a judgmental sample of 150 patients’ records. Also, we performed a penetration test at each hospital.

IHS Needs To Improve Oversight of Its Hospitals’ Opioid Prescribing and Dispensing Practices and Consider Centralizing Its Information Technology Functions What OIG Found The IHS hospitals we reviewed did not always follow the Indian Health Manual when prescribing and dispensing opioids. Specifically, through our patient record review, we found that hospitals did not always review the course of patient treatment and causes of pain within required timeframes, perform the required urine drug screenings within recommended time intervals, review patient health records before filling a prescription from a non-IHS provider, and maintain pain management documents to support that provider responsibilities had been performed. We also found that these IHS hospitals did not fully use the States’ prescription drug monitoring programs when prescribing or dispensing opioids.

IHS’s decentralized IT management structure led to vulnerabilities and weaknesses in implementing security controls at all five hospitals. IHS’s controls were not effective at preventing or detecting our penetration test cyberattacks. In addition, the hospitals implemented IT security controls to protect health information and patient safety differently. Inconsistencies in the delivery of cybersecurity services can lead to the same vulnerability being remediated at one hospital but being exploited at another hospital that did not remediate the vulnerability. As a result, IHS hospital operations and delivery of patient care could have been significantly affected.

What OIG Recommends and IHS Comments We recommend that IHS work with hospitals to ensure they follow the Indian Health Manual when prescribing and dispensing opioids. We also recommend that IHS consider centralizing its IT systems, services, and functions by conducting a cost-benefit analysis of adopting a cloud computing policy, including centralization of IT systems, services, and functions. We made other procedural recommendations, which are listed in the report. We provided more detailed information and specific recommendations to IHS so that it can address specific vulnerabilities that we identified.

In written comments to our draft report, IHS concurred with our recommendations and described actions it has taken or plans to take to address our findings.

The full report can be found at https://oig.hhs.gov/oas/reports/region18/181711400.asp.

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Report in Brief August 2019 OEI-06-16-00390

U.S. Department of Health and Human Services

Office of Inspector General

Organizational Challenges to Improving Quality of Care in Indian Health Service Hospitals What OIG Found OIG identified underlying issues that are hindering the Indian Health Service (IHS) from improving its management of its hospitals, and recommends strategies for IHS as it implements new improvement plans.

The issues represent core organizational challenges that, if not addressed, could continue to limit IHS’s ability to improve hospital operations and quality of care:

Key Takeaway IHS is at a crossroads. The agency has had longstanding problems providing consistent high-quality hospital care. In 2018–19, IHS released promising plans for improvement. However, to make meaningful and lasting improvements, IHS needs to overcome underlying organizational problems that have hampered its success. This report identifies several organizational challenges to IHS’s management of its hospitals, and it offers strategies to overcome them for sustainable change.

›

Lack of Formal Structure, Policies, and Roles: IHS officials reported that they were often uncertain about their roles and those of other officials, including the authority to act in correcting problems.

Consequences included lack of accountability and undermining of quality of care. This absence of clear roles was especially problematic with regard to the roles and responsibilities of IHS headquarters (HQ) and Area Offices.

›

Lack of a Clear View of Hospital Performance and Problems: We found that IHS HQ lacked awareness and insight about Area Office activities and hospital performance. In addition, IHS’s organizational culture did not always encourage candid communication, with what one official called a “culture of niceness” that sometimes impeded useful discussion of problems.

›

Lack of Confidence in IHS’s Ability to Succeed: IHS officials consistently expressed a deep commitment to and passion for the agency’s mission and beneficiaries. However, officials also expressed doubt in the agency’s ability to make sustained improvements.

Addressing Organizational Challenges To address these underlying organizational challenges, IHS should incorporate the strategies we outline in this report as it implements its new plans to improve operations: establish strong agency structures; ensure that leaders have a clear view of problems and champion “continuous learning” in their work; and leverage the deep commitment of officials and staff to foster a greater confidence in the agency moving forward.

In other evaluations, OIG has recommended specific actions for improving quality in IHS hospitals, such as establishing a comprehensive compliance program focused on quality of care. We continue to urge IHS to implement those recommendations.

Full report can be found at oig.hhs.gov/oei/reports/oei-06-16-00390.asp

Why OIG Did This Review This study identifies underlying organizational challenges that may hamper IHS’s ability to address critical longstanding problems at its hospitals. At times, these problems have had serious consequences, including difficulty maintaining compliance with Federal quality-of-care requirements.

OIG and others have previously analyzed these problems and recommended corrective actions. IHS has made important new plans for improving the quality of care that it provides in its hospitals.

However, if underlying organizational challenges are not addressed, they may prevent IHS from bringing its full organizational strength to these efforts.

How OIG Did This Review We based our findings on interviews with IHS officials and other stakeholders, and our observations of agency practices while we were conducting this and other OIG studies. Interview topics included challenges to the operations of IHS HQ, Area Offices, and hospitals, and suggestions for accelerated progress. We did not independently verify the substance of the statements provided to us in interviews.

We also reviewed agency documents, including the Strategic Plan that IHS released in 2019. We conducted qualitative analysis to identify challenges to IHS agency management of its hospitals, and to develop strategies for improvement.