Office of Tribal Self-Governance Negotiation Cooperative Agreement

Tribal negotiation teams about the Tribe's specific health care concerns and plans.  One of the hallmarks of the TSGP is the collaborative nature of the negotiations process, which is designed to:  1) enable a Tribe to set its own priorities when assuming responsibility for Indian Health Service (IHS) Programs, Services, Functions, and Activities (PSFAs); 2) observe and respect the Government-to-Government relationship between the U.S. and each Tribe; and 3) involve the active participation of both Tribal and IHS representatives, including the Office of Tribal Self-Governance (OTSG).  Negotiations are a method of determining and agreeing upon the terms and provisions of a Tribe's Compact and Funding Agreement (FA), the implementation documents required for the Tribe to enter into the TSGP.  The Compact sets forth the general terms of the Government-to-Government relationship between the Tribe and the Secretary of the U.S. Department of Health and Human Services (HHS).  The FA:  1) describes the length of the agreement (whether it will be annual or multi-year); 2) identifies the PSFAs, or portions thereof, the Tribe will assume; 3) specifies the amount of funding associated with the Tribal assumption; and 4) includes terms required by Federal statute and other terms agreed to by the parties.  Both documents are required to participate in the TSGP and they are mutually negotiated agreements that become legally binding and mutually enforceable after both parties sign the documents.  Either document can be renegotiated at the request of the Tribe.  

The negotiations process has four major stages, including:  1) planning; 2) pre-negotiations; 3) negotiations; and 4) post-negotiations.  Title V of the Indian Self-Determination and Education Assistance Act (ISDEAA) requires that a Tribe or Tribal organization complete a planning phase to the satisfaction of the Tribe.  The planning phase must include legal and budgetary research and internal Tribal Government planning and organizational preparation relating to the administration of health care programs.  See 25 U.S.C. §5383(d).  The planning phase is critical to negotiations and helps Tribes make informed decisions about which PSFAs to assume and what organizational changes or modifications are necessary to support those PSFAs.  A thorough planning phase improves timeliness and efficient negotiations and ensures that the Tribe is fully prepared to assume the transfer of IHS PSFAs to the Tribal health program.

During pre-negotiations, the Tribal and Federal negotiation teams review and discuss issues identified during the planning phase.  Pre-negotiations provide an opportunity for the Tribe and the IHS to identify and discuss issues directly related to the Tribe's Compact, FA and Tribal shares.  They may take the form of a formal meeting or a series of informal meetings or conference calls.  

In advance of final negotiations, the Tribe should work with the IHS to secure the following: 1) program titles and descriptions; 2) financial tables and information; 3) information related to the identification and justification of residuals; and 4) the basis for determining Tribal shares (distribution formula).  The Tribe may also wish to discuss financial materials that show estimated funding for next year, and the increases or decreases in funding it may receive in the current year, as well as the basis for those changes.  

Having reviewed the draft documents and funding tables, at final negotiations both negotiation teams work together in good faith to determine and agree upon the terms and provisions of the Tribe's Compact and FA.  Negotiations are not an allocation process; they provide an opportunity to mutually review and discuss budget and program issues.  As issues arise, both negotiations teams work through the issues to reach agreement on the final documents.  

There are various entities involved throughout the negotiations process.  For example, a Tribal government selects its representative(s) for negotiations and the Tribal negotiations team, which may include a Tribal leader from the governing body, a Tribal health director, technical and program staff, legal counsel, and other consultants.  Regardless of the composition of the Tribal team, Tribal representatives must have decision making authority from the Tribal governing body to successfully negotiate and agree to the provisions within the agreements.  The Federal negotiations team is led by the Area Lead Negotiator (ALN) and may include area and headquarters staff, including staff from the OTSG, the Office of Finance and Accounting, and the Office of the General Counsel.  The ALN is the only member of the Federal negotiations team with delegated authority to negotiate on behalf of the IHS Director.  The ALN is the designated official that provides Tribes with Self-Governance information, assists Tribes in planning, organizes meetings between the Tribe and the IHS, and coordinates the Agency's response to Tribal questions during the negotiations process.  The ALN role requires detailed knowledge of the IHS, awareness of current policy and practice, and understanding of the rights and authorities available to a Tribe under Title V of the ISDEAA.       

In post-negotiations, after the Compact, FA and all negotiations are complete, the documents are signed by the authorizing Tribal official and submitted to the ALN who reviews the final package to ensure each document accurately reflects what was negotiated.  Once the ALN completes this review, then the final package is submitted to the OTSG to be prepared for the IHS Director's signature, provided that no outstanding issues delay or prevent signature.  After the Compact and FA have been signed by both parties, they become legally binding and enforceable agreements.  A signed Compact and FA are necessary for the payment process to begin.  The negotiating Tribe then becomes a "Self-Governance Tribe" and a participant in the TSGP.

Acquiring a Negotiation Cooperative Agreement is not a prerequisite to enter the TSGP.  A Tribe may use other resources to develop and negotiate its Compact and FA.  See 42 CFR § 137.26.  Tribes that receive a Negotiation Cooperative Agreement are not obligated to participate in Title V and may choose to delay or decline participation or expansion in the TSGP.