1. Self-Governance Negotiation Process
Jessica Smith-Kaprosy, Policy Analyst
Office of Tribal Self-Governance
Indian Health Service
April 2015

2. Introduction to the Negotiation Process
April 2015

3. Key Features Respects Nation-to-Nation Relationship Collaborative
Tribally-driven
April 2015

4. Outcome: Compact and Funding Agreement
What are Negotiations?
Planning
Pre-Negotiations
Negotiations
Processing & Payment/Post-Negotiations
Outcome: Compact and Funding Agreement
April 2015

5. Compact and Funding Agreement?
Both documents are necessary to participate in the IHS Tribal Self-Governance Program (TSGP)
Compact: Sets forth the general terms of the nation-to-nation relationship between the Tribe and HHS
Funding Agreement:
Abbreviated FA or MYFA (multi-year FA)
Describes the length of the agreement
Identifies Programs, Services, Functions or Activities (PSFAs), or portions thereof, that the Tribe will assume and funding associated with those PSFAs.
April 2015

6. Compact and Funding Agreement?
Generally, each Tribe/Tribal Organization will have one compact and one funding agreement.
In some cases (Alaska and Navajo Areas) there may be one compact with multiple cosigners, each with their own FA.
Read together as the expression of the agreement between the Federal government and the Tribe.
There is no model compact or FA. Each is drafted to fit the Tribe’s unique situation.
April 2015

7. Who negotiates for the Government?
IHS negotiation teams are lead by an Agency Lead Negotiator (ALN).
The only person with authority to negotiate compacts and FAs on behalf of the IHS Director.
Supported by:
OTSG Program Analyst and Financial Analyst
Member of the Office of the General Counsel
IHS subject matter experts, as needed
April 2015

8. Who negotiates for the Tribe/TO?
Who will be your lead negotiator?
Examples: Tribal Chair, member of Tribal Council, Health Director/CEO
Who might be on your negotiation team?
Examples: In-house or outside legal counsel, finance, program directors, consultants, others?
April 2015

9. Negotiation Process Stages
April 2015

10. 4 Stages of the Negotiation Process
Planning
Eligibility and mandatory planning phase for new Tribes
Program assessment and possible additional assumptions
Pre-Negotiation
Discuss, PSFAs, financial tables, and draft documents
Preparation of draft compact and FA
Final Negotiations
Resolution of remaining issues from pre-negotiation stage
Agreement on final documents
Post-Negotiations
Document processing & payment
April 2015

11. Planning Stage Usually, this stage is the longest and most work.
Title V of the ISDEAA requires completion of a planning phase to the satisfaction of the Tribe.
Must Include:
legal and budgetary research
internal Tribal government planning and organization preparation relating to the administration of health care programs.
April 2015

12. Pre-Negotiation Stage
Drafting or editing the compact & FA
Active discussion by negotiation teams:
Issues identified during planning
Draft compact, FA, and funding tables
“Pre-negotiations”: a meeting, in-person or by phone, with both negotiation teams meet to discuss any questions or concerns regarding the documents and tables prior to final negotiations.
April 2015

13. Pre-Negotiation Stage
What does OTSG look for when reviewing draft documents?
Mandatory provisions
Within IHS authority
Are the PSFAs/associated funds and other obligations clear?
Does it make sense as a whole?
Outdated language
Level of detail— the FA is not a scope of work
Extra Title I provisions
April 2015

14. Final Negotiations
Negotiation teams work together to reach agreement on the final documents.
OTSG recommends in-person negotiations for Tribes new to the program.
Once agreement on the final documents has been reached, two final copies are signed by the Tribe and provided to the ALN.
At final negotiations, both teams sit down, work out any remaining issues, and come together to reach agreement on the final documents.
Generally we recommend in-person for Tribes new to the program.
When done, two final copies are signed by the Tribe and sent to the ALN.
April 2015

15. Post Negotiation
The Tribe/TO signs the final documents and returns them to the ALN.
The ALN then:
Reviews the documents
Packages them with the supporting documents,
Submits package to HQ for processing and signature by the IHS Director or a designee
Once the compact and FA have been signed by both parties, they become legally binding and enforceable.
April 2015

16. TSGP Document Processing
ALN packages documents and attachments and sends to OTSG.
OTSG reviews the package for completeness.
IHS-HQ Office of Finance and Accounting (OFA) validates the amounts and certifies availability of HQ Tribal Shares.
OTSG submits the final package to the Office of the Director for signature.
IHS Director (or designee) reviews and signs the agreement if there are no outstanding issues.
Payment process begins
OTSG sends a copy of the agreement to the Tribe.
OTSG retains the case file in compliance with Federal recordkeeping procedures.
April 2015

17. TSGP Payment Process
A signed compact and FA must be in place for the payment process to begin.
Congress passes an appropriations act or continuing resolution.
OMB apportions the appropriation into quarterly spending limits for the IHS.
IHS-HQ OFA allots the funding to Areas.
Areas confirm recurring base amounts paid to TSGP Tribes.
OTSG prepares & approves payment docs in accordance with the most recent FA. Payment signed by OTSG financial analyst, HQ OFA, & OTSG Director (approved at Area for AK).
OTSG sends signed payment document to Area Finance Office.
US Dept. of the Treasury sends the funds to the Tribe. Tribe receives funds.
OTSG posts payment docs to OTSG database and sends a copy to the Tribe.
Area finance obligates the funds and transmits payment to US Dept. of the Treasury.
April 2015

18. Tips and Best Practices
April 2015

19. 3 Negotiation Stumbling Blocks
Timing
Communication
Version control and document flow
April 2015

20. Resources Office of Tribal Self-Governance: www.ihs.gov/selfgovernance
Self-Governance Communication and Education Tribal Consortium:
Tribal Self-Governance Advisory Committee
Welcome to attend quarterly meetings.
Area representatives are excellent resources.
Annual Tribal Self-Governance Consultation Conference
April 2015