DRAFT April 24, 2003 TITLE VI TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT FOR THE DEPARTMENT OF HEALTH AND HUMAN SERVICES

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1 TITLE VI TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT FOR THE DEPARTMENT OF HEALTH AND HUMAN SERVICES Sec DEFINITIONS The definitions contained in title V of this Act shall apply to this title. Sec ESTABLISHMENT OF PROJECT (a) Demonstration. The Secretary shall, for a period not to exceed 5 years following enactment of this title, conduct a demonstration project that is intended to show the effectiveness of tribal operation of the programs, functions, services and activities (or portions thereof) described in Section 604(c) of this title under selfgovernance principles and authorities. (b) Administration. The management and administration of this demonstration project shall be in the Office of Tribal Self-Governance within the Department of Health and Human Services. Sec SELECTION OF PARTICIPATING INDIAN TRIBES (a) In General. Up to 50 Indian tribes that meet the eligibility criteria specified in subsection (b) shall be entitled to participate in this demonstration project. In the event that more than 50 eligible tribes request participation the Secretary is authorized and may select additional Indian tribes to participate in the project. (b) Eligibility. Indian tribes eligible for the demonstration project are those that have existing compacts and funding agreements under the Act. The Secretary shall select such tribes that meet this requirement and that request participation in Title VI self-governance by resolution or other official action by the governing body of each tribe to be served. (c) Planning and Negotiation Grants. Subject to the availability of appropriations, the Secretary shall establish a program to allow Indian tribes that meet the eligibility requirements of this Title to be awarded a planning and/or a negotiation grant. Receipt of a grant is not a requirement to participate in the demonstration project. Sec COMPACTS AND FUNDING AGREEMENTS (a) Compact and Funding Agreement Required. The Secretary shall negotiate and enter into a written compact and funding agreement with each Indian tribe participating in the demonstration project in a manner consistent with the Federal Government s trust responsibility, treaty and statutory obligations, and the - 1 -

2 government-to-government relationship between Indian tribes and the United States. (b) Compact Contents, Term, and Effective Date. Each compact required under subsection (a) shall set forth Congressional policies regarding tribal selfgovernance, the intent of this demonstration, such terms as shall control from year to year, and any provisions from this title that are requested by the participating tribe. The effective date of a compact shall be the date of the approval and execution by the Indian tribe and the Secretary or another date agreed upon by the parties, and shall remain in effect so long as permitted by Federal law or until terminated by mutual agreement. Such compacts may only be amended by mutual agreement of the parties. (c) Scope. Each funding agreement required under subsection (a) shall, at the option of the Indian tribe, authorize the Indian tribe to plan, conduct and administer those programs, services functions and activities (or portions thereof), administered by the Secretary through an agency of the Department, set forth in paragraphs (1)-(3) of this subsection. (1) Initial Programs. The following programs are eligible for inclusion in a funding agreement under this title: (A) Administration on Aging: Grants for Native Americans (42 U.S.C et (B) Administration for Children and Families: (i) Tribal Temporary Assistance for Needy Families (42 U.S.C. 601 et (ii) Low Income Home Energy Assistance (42 U.S.C et (iii) Community Services Block Grant (42 U.S.C et (iv) Child Care and Development Fund (42 U.S.C et (v) Native Employment Works (42 U.S.C. 612(a)(2)); (vi) Head Start (42 U.S.C et (vii) Child Welfare Services (42 U.S.C. 620 et (viii) Promoting Safe and Stable Families (42 U.S.C. 620 et (ix) Family Violence Prevention Grants for Battered Women s Shelters (42 U.S.C et (C) Substance Abuse and Mental Health Services Administration: Target Capacity Expansion (42 U.S.C. 290aa et (D) Block Grants Regarding Mental Health and Substance Abuse (42 U.S.C. 300x et (E) Health Resources and Services Administration Community Health Center Grants (42 U.S.C. 254b). (2) Additional programs. The Secretary is authorized to and may identify up to six additional programs annually for inclusion in this demonstration - 2 -

3 project including all other programs where tribes are eligible, all other programs where American Indians are eligible beneficiaries, and competitive grants where a tribe successfully applies for and receives an individual or cooperative award, provided that participating tribes agree to funding agreement restrictions regarding program redesign and budget reallocation for any competitive awards.. (d) Contents. Each funding agreement (1) shall specify the services to be provided, the functions to be performed and the responsibilities of the tribe and the Secretary; (2) shall provide for payment by the Secretary to the tribe of funds consistent with Section 605 of this title; (3) shall not allow the Secretary to waive, modify or diminish in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exist under treaties, Executive orders and Acts of Congress; and (4) shall allow for retrocession of programs, functions, services and activities (or portions thereof) pursuant to section 105(e) of this Act. Sec TRANSFER OF FUNDS (a) In General. Pursuant to the terms of any compact or funding agreement entered into under this title, the Secretary shall transfer to the Indian tribe all funds provided for in the funding agreement. At the request of the Indian tribe, funding shall be paid in one annual lump sum payment and such transfer shall be made not later than 10 days after the apportionment of such funds by the Office of Management and Budget to the Department, unless the funding agreement provides otherwise. (b) Amount of Funding. (1) Funding formulas. Notwithstanding the funding formulas statutorily prescribed for the programs eligible for inclusion in a funding agreement under this title which are specifically hereby waived for this Demonstration Project and shall not apply to determining the amount of funding to be provided to a participating Indian tribe. Subject to the availability of appropriations, the funding amount shall be adequate to permit the successful implementation of this Demonstration Project and the Secretary and the participating Indian tribe shall determine the funding amount through mutual negotiations. (2) Matching Requirement. An Indian tribe may request a waiver of any matching requirements that otherwise apply to the programs referenced in section 604(c) and the Secretary shall liberally grant such reasonable waiver requests. (3) Contract Support Costs. There shall be added to the amount required by paragraph (1) contract support costs as specified in section 106(a)(2), (3), (5), and (6) of the Act

4 (4) Tribes may also negotiate for tribal shares of administrative funds as defined in section 601 without regard to the organizational level where the services are performed. Such shares shall include a tribe s portion of training and technical assistance services performed by contractors. Sec GENERAL PROVISIONS (a) Redesign, Consolidation and Reallocation. (1) In General. To the extent allowed under the statutory provisions of the individual programs included in the funding agreement under section 604(c), and subject to the terms of the funding agreement, an Indian tribe may (A) redesign or consolidate the programs, functions, services and activities (or portions thereof), included in the funding agreement, Provided the Indian tribe agrees to abide by the programs statutory purposes; and (B) reallocate or redirect funds for such programs, functions, services and activities (or portions thereof) among the programs included in the funding agreement, provided, that all demonstration project costs using such funds meet allowable cost standards as required by sections 506(c)(1) and 506(c)(2) of Title V. (2) Waivers. The Secretary shall where the purposes of this Act are furthered, at the request of the Indian tribe, grant a waiver of program requirements for the duration of the demonstration project to facilitate the Indian tribe s ability to redesign programs or reallocate funds as provided in paragraph (1) of this subsection. The Secretary shall document all such waiver requests, the reasons for the requests, the effect of the waiver on the requesting tribe s project, and the views of the tribe regarding the same. (b) Final Offer. If the Secretary and a participating Indian tribe are unable to agree, in whole or in part, on the terms of the compact or funding agreement (including funding levels), the Indian tribe may submit a final offer to the Secretary. Not more than 45 days after the submission or as otherwise agreed to by the Indian tribe, the Secretary shall review and make a determination on the final offer. In the absence of a timely rejection of the offer, in whole or in part, made in compliance with paragraph (1) of this subsection, the offer shall be deemed agreed to by the Secretary. If the Secretary rejects the final offer, the Secretary shall (1) issue to the Indian tribe a written statement clearly setting forth the reasons for rejecting the final offer; (2) provide the Indian tribe with a hearing on the record, except that the Indian tribe may, in lieu of such a hearing, file an appeal of the rejection to the Intra-Departmental Council on Native American Affairs, whose decision would be final and not subject to judicial review. With respect to any hearing or appeal conducted pursuant to this paragraph, the Secretary shall have the burden of proving by clear and convincing evidence the - 4 -

5 validity of the grounds for rejecting the offer (or a provision thereof) made under subsection (c). (c) Other Funding. Participation by an Indian tribe in the demonstration project under this title shall not affect the amount of funding the Indian tribe would otherwise receive under the statutes or regulations governing the programs included in the demonstration project. (d) Duplication of Eligibility. To the greatest extent feasible, participating Indian tribes shall make efforts to coordinate with appropriate States to identify duallyeligible individuals in order to address the potential for the provision of duplicate benefits. (e) Appeals. Except as provided in Section 606(b)(2), for the purposes of section 110 of this Act, the term 'contracts' shall also include agreements authorized under this title. (f) Regulations. Participating tribes shall comply with final regulations for the programs in their demonstration projects. Unless expressly agreed to by a participating Indian tribe in its compact or funding agreement, the tribe shall not be subject to any agency circular, policy, manual, guidance or rule. (g) Incorporated Terms. The provisions of the following sections of title V of this Act shall apply to all agreements entered into under the authority of this title: (1) Sec. 506(b) (conflicts of interest); (2) Sec. 506(c)(1) (Single Agency Audit Act); (3) Sec. 506(c)(2) (cost principles); (4) Sec. 506(c) (records); (5) Sec. 508(g) (prompt payment); (6) Sec. 506(h) (nonduplication); (7) Sec. 508(h) (interest or other income on transfers); (8) Sec. 508(i) (carryover of funds); and (9) Sec. 512(b) (regulation waivers). Sec CONSTRUCTION Sections 509 and 510 of this Act pertaining to construction projects shall apply to all agreements entered into under the authority of this title. Sec REPORT (a) Secretary's Report. The Secretary shall submit to the Congress a written report annually following the date of enactment of this title on the relative costs and benefits of the demonstration project using evaluation and reporting data provided by participating tribes. Such report shall be based on mutually determined - 5 -

6 baseline measurements jointly developed by the Secretary and participating Indian tribes and shall (1) verify that the participating tribes met the statutory purposes of the compacted programs; (2) confirm that key self-governance principles were carried out as tribes operated the Title VI programs; (3) separately include federal and tribal viewpoints regarding the merger of Title VI programs and self-governance principles and the impact on program beneficiaries. (b) Funding. There is authorized to be appropriated such sums as may be necessary, to be provided to the participating Indian tribes, for the purpose of evaluating and reporting in the demonstration project under subsection (a). Sec AUTHORIZATION OF APPROPRIATIONS There are authorized to be appropriated such sums as may be necessary to carry out this title. Such sums shall remain available until expended. Sec REPEAL (a) In General. Title VI of the Indian Self-Determination and Education Assistance Act (Pub. L Section 5) is repealed. (b) Effective Date. This section shall take effect on