1. Self-Governance Works! Self-Governance Negotiations Tribal Best Practices June 2, 2015 Minneapolis, MN

2. Self-Governance Works! Selecting the Tribal Negotiation Team Elected Tribal Leaders; Tribal Leader or Designee with decision making authority (Lead Negotiator); Financial representation; Legal representation; SG expert/SG coordinator; Health programmatic staff; Others based upon Tribal priorities.

3. Self-Governance Works! Federal Negotiation Team Agency Lead Negotiator (ALN) – represents the Director of IHS; OTSG – office of record, provides technical assistance throughout (Program Analyst and Financial Analyst); HQ Staff – for financial and/or PSFA support; Area Staff – for financial and/or PSFA support; Office of General Counsel, HHS – for legal advice to the IHS.

4. Self-Governance Works! Negotiation Purpose Enables a Tribe to set its own priorities to assume PSFAs; Observes the Nation-to-Nation relationship between the Unites States and each Tribe; Involves the active participation of both Tribal and Federal representatives; Goal: To achieve full agreement on a SG Compact and Funding Agreement that facilitates the Tribe’s vision for health care.

5. Self-Governance Works! Products of Negotiation Compact – an umbrella agreement that contains provisions that continue year-to-year, effective until terminated; Funding Agreement – contains, at a minimum: PSFA description; The general budget category assigned (within the IHS budget); Funds to be provided; Time and method for transfer of funds Responsibilities of the Secretary (IHS); Any other provisions upon which the Tribe and the IHS agree. 25 U.S.C. § 458aaa—4(d)

6. Self-Governance Works! Negotiation Process Information requests Financial tables, billing and workload information; Any PSFA updates; Proposals for language from IHS (such as CSC or other issues); Transitional information such as for contracts, equipment/facilities and personnel. Pre-Negotiation Meetings At Tribal request; Individual Tribe, group of Tribes, or entire Area Office; Review financial tables and gather more information about PSFAs. Negotiation Meetings Full Tribal and Federal negotiation teams (face-to-face, conference call, etc); Tribe should set the agenda and identify meeting goals; Exchange of draft documents ahead of time is helpful.

7. Self-Governance Works! Negotiation Meetings A collaborative process, with mutual respect; Respects the Nation-to-Nation relationship; Oriented towards Tribal goals for Self-Governance; Secretary must exercise good faith “…to maximize implementation of the Self-Governance policy.” (25 U.S.C. § 458aaa—6(e)) Positively work towards mutual agreement wherever possible.

8. Self-Governance Works! Negotiation Tips Get to know your Agency Lead Negotiator; Set the agenda – identify your negotiation issues; Ask a lot of questions – there are no ‘stupid’ questions! Submit and track information requests to IHS; Talk to experienced Tribes; Keep a running list of outstanding negotiation issues; Keep the document and proposal exchange moving, apart from formal meetings – update frequently;

9. Self-Governance Works! Negotiation Tips Control the documents; Prepare follow up action lists, with agreed upon timelines; Be creative in problem-solving; Delegate selected items to ‘sub’ negotiation teams to report back to larger group (examples: IT, legal issues) Don’t forget to negotiate program coordination/implementation issues; Don’t take ‘no’ for an answer. Look at all alternatives for achieving Tribal goals.

10. Self-Governance Works! What if you Cannot Agree? Reach out – have any other Tribes experienced the same issue? Use SGCE and TSGAC networks. (Getting out of your IHS Area is key.) Request additional IHS information or involvement as necessary; Request technical assistance from OTSG; Use Tribally-acceptable alternatives and identify high priority issues. Is this worth “going to the mattresses?”

11. Self-Governance Works! Last Resort – Final Offer 25 U.S.C. § 458aaa—6(b) For disagreements, in whole or in part; Tribe formally submits to the ALN; IHS determination within 45 days; Failure to reject within 45 days is deemed agreement by IHS.

12. Self-Governance Works! Rejection of Final Offers 25 U.S.C. § 458aaa—6(c) Amount of funds exceeds the applicable funding level the Tribe is entitled to; PSFA is an inherent federal function; Tribe cannot carry out PSFA without “significant danger or risk to the public health”; and Tribe is not eligible to participate in self-governance. IHS must provide: technical assistance, a hearing on the record, or an option for entering the several portions of the agreement(s) upon Tribal request.

13. Self-Governance Works! What Happens After? IHS ALN must make a recommendation regarding the agreement(s) with the Tribe; Office of General Counsel disagreement does not necessarily mean IHS disagreement; Resulting agreements are maintained, tracked and coordinated by the Office of Tribal Self-Governance; Successor agreement provision – the Funding Agreement remains in full force and effect until a subsequent agreement is executed. (25 U.S.C. § 458aaa—4(e))