[Title 42 CFR M]
[Code of Federal Regulations (annual edition) - October 1, 2008 Edition]
[Title 42 - PUBLIC HEALTH]
[Chapter I - PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN]
[Subchapter M - INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN]
[From the U.S. Government Printing Office]


42PUBLIC HEALTH12008-10-012008-10-01falseINDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMANMSUBCHAPTER MPUBLIC HEALTHPUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN
   SUBCHAPTER M_INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN 
                                SERVICES



PART 136_INDIAN HEALTH--Table of Contents




                    Subpart A_Purpose and Definitions

Sec.
136.1 Definitions.
136.2 Purpose of the regulations.
136.3 Administrative instructions.

  Subpart B_What Services Are Available and Who Is Eligible To Receive 
                                  Care

136.11 Services available.
136.12 Persons to whom services will be provided.
136.13 [Reserved]
136.14 Care and treatment of ineligible individuals.

                   Subpart C_Contract Health Services

136.21 Definitions.
136.22 Establishment of contract health service delivery areas.
136.23 Persons to whom contract health services will be provided.
136.24 Authorization for contract health services.
136.25 Reconsideration and appeals.

   Subpart D_Limitation on Charges for Services Furnished by Medicare-
                   Participating Hospitals to Indians

136.30 Payment to Medicare-participating hospitals for authorized 
          Contract Health Services.
136.31 Authorization by urban Indian organization.
136.32 Disallowance.

                   Subpart E_Preference in Employment

136.41 Definitions.
136.42 Appointment actions.
136.43 Application procedure for preference eligibility.

   Subpart F_Abortions and Related Medical Services in Indian Health 
          Service Facilities and Indian Health Service Programs

136.51 Applicability.
136.52 Definitions.
136.53 General rule.
136.54 Life of the mother would be endangered.
136.55 Drugs and devices and termination of ectopic pregnancies.
136.56 Recordkeeping requirements.
136.57 Confidentiality.

                        Subpart G_Residual Status

136.61 Payor of last resort.

    Subpart H_Grants for Development, Construction, and Operation of 
                         Facilities and Services

136.101 Applicability.
136.102 Definitions.
136.103 Eligibility.
136.104 Application.
136.105 Project elements.
136.106 Grant award and evaluation.
136.107 Use of project funds.
136.108 [Reserved]
136.109 Availability of appropriations.
136.110 Facilities construction.
136.111 Interest.
136.112 Additional conditions.
136.113 Fair and uniform provision of services.
136.114 Applicability of other Department regulations.
136.115 Rescission of grants.
136.116 Reports.
136.117 Amendment of regulations.
136.118 Effect on existing rights.
136.119 Penalties.
136.120 Use of Indian business concerns.
136.121 Indian preference in training and employment.

Subpart I [Reserved]

          Subpart J_Indian Health Care Improvement Act Programs

    Subdivision J-1--Provisions of General and Special Applicability

136.301 Policy and applicability.
136.302 Definitions.
136.303 Indians applying for scholarships.
136.304 Publication of a list of allied health professions.
136.305 Additional conditions.

   Subdivision J-2--Health Professions Recruitment Program for Indians

136.310 Health professions recruitment grants.
136.311 Eligibility.
136.312 Application.
136.313 Evaluation and grant awards.
136.314 Use of funds.
136.315 Publication of list of grantees and projects.
136.316 Other HHS regulations that apply.

[[Page 726]]

Subdivision J-3--Health Professions Preparatory Scholarship Program for 
                                 Indians

136.320 Preparatory scholarship grants.
136.321 Eligibility.
136.322 Application and selection.
136.323 Scholarship and tuition.
136.324 Availability of list of recipients.

           Subdivision J-4--Indian Health Scholarship Program

136.330 Indian health scholarships.
136.331 Selection.
136.332 Service obligation.
136.333 Distribution of scholarships.
136.334 Publication of a list of recipients.

            Subdivision J-5--Continuing Education Allowances

136.340 Provision of continuing education allowances.

       Subdivision J-6--Contracts With Urban Indian Organizations

136.350 Contracts with Urban Indian organizations.
136.351 Application and selection.
136.352 Fair and uniform provision of services.
136.353 Reports and records.

               Subdivision J-7--Leases With Indian Tribes

136.360 Leases with Indian tribes.

Subdivision J-8--Health Professions Pregraduate Scholarship Program for 
                                 Indians

136.370 Pregraduate scholarship grants.
136.371 Eligibility.
136.372 Application and selection.
136.373 Scholarship and tuition.
136.374 Availability of list of recipients.

    Subpart K_Indian Child Protection and Family Violence Prevention

136.401 Purpose.
136.402 Policy.
136.403 Definitions.
136.404 What does the Indian Child Protection and Family Violence 
          Prevention Act require of the Indian Health Service and Indian 
          Tribes or Tribal organizations receiving funds under the 
          ISDEA?
136.405 What are the minimum standards of character for individuals 
          placed in, or applying for, a position that involves regular 
          contact with or control over Indian children?
136.406 Under what circumstances will the minimum standards of character 
          be considered to be met?
136.407 Under what circumstances should a conviction, or plea of nolo 
          contendere or guilty to, be considered if there has been a 
          pardon, expungement, set aside, or other court order of the 
          conviction or plea?
136.408 What are other factors, in addition to the minimum standards of 
          character, that may be considered in determining placement of 
          an individual in a position that involves regular contact with 
          or control over Indian children?
136.409 What positions require a background investigation and 
          determination of eligibility for employment or retention?
136.410 Who conducts the background investigation and prepares 
          determinations of eligibility for employment?
136.411 Are the requirements for Indian Health Service adjudication 
          different from the requirements for Indian Tribes and Tribal 
          organizations?
136.412 What questions must the IHS ask as part of the background 
          investigation?
136.413 What protections must the IHS and Tribes or Tribal organizations 
          provide to individuals undergoing a background investigation?
136.414 How does the IHS determine eligibility for placement or 
          retention of individuals in positions involving regular 
          contact with Indian children?
136.415 What rights does an individual have during this process?
136.416 When should the IHS deny employment or dismiss an employee?
136.417 May the IHS hire individuals pending completion of a background 
          investigation?
136.418 What should the IHS do if an individual has been charged with an 
          offense but the charge is pending or no disposition has been 
          made by a court?

    Authority: 25 U.S.C. 13; sec. 3, 68 Stat. 674 (42 U.S.C., 2001, 
2003); Sec. 1, 42 Stat. 208 (25 U.S.C. 13); 42 U.S.C. 2001, unless 
otherwise noted.



                    Subpart A_Purpose and Definitions

    Source: 64 FR 58319, Oct. 28, 1999, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002



Sec. 136.1  Definitions.

    When used in this part:
    Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, 
Department of the Interior.
    Indian includes Indians in the Continental United States, and 
Indians, Aleuts and Eskimos in Alaska.

[[Page 727]]

    Indian health program means the health services program for Indians 
administered by the Indian Health Service within the Department of 
Health and Human Services.
    Jurisdiction has the same geographical meaning as in Bureau of 
Indian Affairs usage.
    Service means the Indian Health Service.



Sec. 136.2  Purpose of the regulations.

    The regulations in this part establish general principles and 
program requirements for carrying out the Indian health programs.



Sec. 136.3  Administrative instructions.

    The service periodically issues administrative instructions to its 
officers and employees, which are primarily found in the Indian Health 
Service Manual and the Area Office and program office supplements. These 
instructions are operating procedures to assist officers and employees 
in carrying out their responsibilities, and are not regulations 
establishing program requirements which are binding upon members of the 
general public.



  Subpart B_What Services Are Available and Who Is Eligible To Receive 
                                  Care?

    Source: 64 FR 58319, Oct. 28, 1999, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.



Sec. 136.11  Services available.

    (a) Type of services that may be available. Services for the Indian 
community served by the local facilities and program may include 
hospital and medical care, dental care, public health nursing and 
preventive care (including immunizations), and health examination of 
special groups such as school children.
    (b) Where services are available. Available services will be 
provided at hospitals and clinics of the Service, and at contract 
facilities (including tribal facilities under contract with the 
Service).
    (c) Determination of what services are available. The Service does 
not provide the same health services in each area served. The services 
provided to any particular Indian community will depend upon the 
facilities and services available from sources other than the Service 
and the financial and personnel resources made available to the Service.



Sec. 136.12  Persons to whom services will be provided.

    (a) In general. Services will be made available, as medically 
indicated, to persons of Indian descent belonging to the Indian 
community served by the local facilities and program. Services will also 
be made available, as medically indicated, to a non-Indian woman 
pregnant with an eligible Indian's child but only during the period of 
her pregnancy through postpartum (generally about 6 weeks after 
delivery). In cases where the woman is not married to the eligible 
Indian under applicable state or tribal law, paternity must be 
acknowledged in writing by the Indian or determined by order of a court 
of competent jurisdiction. The Service will also provide medically 
indicated services to non-Indian members of an eligible Indian's 
household if the medical officer in charge determines that this is 
necessary to control acute infectious disease or a public health hazard.
    (2) Generally, an individual may be regarded as within the scope of 
the Indian health and medical service program if he/she is regarded as 
an Indian by the community in which he/she lives as evidenced by such 
factors as tribal membership, enrollment, residence on tax-exempt land, 
ownership of restricted property, active participation in tribal 
affairs, or other relevant factors in keeping with general Bureau of 
Indian Affairs practices in the jurisdiction.
    (b) Doubtful cases. (1) In case of doubt as to whether an individual 
applying for care is within the scope of the program, the medical 
officer in charge shall obtain from the appropriate BIA officials in the 
jurisdiction information that is pertinent to his/her determination of 
the individual's continuing relationship to the Indian population group 
served by the local program.
    (2) If the applicant's condition is such that immediate care and 
treatment are necessary, services shall be provided

[[Page 728]]

pending identification as an Indian beneficiary.
    (c) Priorities when funds, facilities, or personnel are insufficient 
to provide the indicated volume of services. Priorities for care and 
treatment, as among individuals who are within the scope of the program, 
will be determined on the basis of relative medical need and access to 
other arrangements for obtaining the necessary care.



Sec. 136.13  [Reserved]



Sec. 136.14  Care and treatment of ineligible individuals.

    (a) In case of an emergency, as an act of humanity, individuals not 
eligible under Sec. 136.12 may be provided temporary care and treatment 
in Service facilities.
    (b) Charging ineligible individuals. Where the Service Unit Director 
determines that an ineligible individual is able to defray the cost of 
care and treatment, the individual shall be charged at rates approved by 
the Assistant Secretary for Health and Surgeon General published in the 
Federal Register. Reimbursement from third-party payors may be arranged 
by the patient or by the Service on behalf of the patient.

[64 FR 58319, Oct. 28, 1999. Redesignated and amended at 67 FR 35342, 
May 17, 2002]



                   Subpart C_Contract Health Services

    Source: 64 FR 58320, Oct. 28, 1999, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.



Sec. 136.21  Definitions.

    (a) Alternate resources is defined in Sec. 136.61 of subpart G of 
this part.
    (b) Appropriate ordering official means, unless otherwise specified 
by contract with the health care facility or provider, the ordering 
official for the contract health service delivery area in which the 
individual requesting contract health services or on whose behalf the 
services are requested, resides.
    (c) Area Director means the Director of an Indian Health Service 
Area designated for purposes of administration of Indian Health Service 
programs.
    (d) Contract health service delivery area means the geographic area 
within which contract health services will be made available by the IHS 
to members of an identified Indian community who reside in the area, 
subject to the provisions of this subpart.
    (e) Contract health services means health services provided at the 
expense of the Indian Health Service from public or private medical or 
hospital facilities other than those of the Service.
    (f) Emergency means any medical condition for which immediate 
medical attention is necessary to prevent the death or serious 
impairment of the health of an individual.
    (g) Indian tribe means any Indian tribe, band, nation, group, 
Pueblo, or community, including any Alaska Native village or Native 
group, which is federally recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.
    (h) Program Director means the Director of an Indian Health Service 
``program area'' designated for the purposes of administration of Indian 
Health Service programs.
    (i) Reservation means any federally recognized Indian tribe's 
reservation. Pueblo, or colony, including former reservations in 
Oklahoma, Alaska Native regions established pursuant to the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601 et seq.), and Indian 
allotments.
    (j) Secretary means the Secretary of Health and Human Services to 
whom the authority involved has been delegated.
    (k) Service means the Indian Health Service.
    (l) Service Unit Director means the Director of an Indian Health 
Service ``Service unit area'' designated for purposes of administration 
of Indian Health Service programs.

[64 FR 58320, Oct. 28, 1999. Redesignated and amended at 67 FR 35342, 
May 17, 2002]



Sec. 136.22  Establishment of contract health service delivery areas.

    (a) In accordance with the congressional intention that funds 
appropriated for the general support of the health program of the Indian 
Health

[[Page 729]]

Service be used to provide health services for Indians who live on or 
near Indian reservations, contract health service delivery areas are 
established as follows:
    (1) The State of Alaska;
    (2) The State of Nevada;
    (3) the State of Oklahoma;
    (4) Chippewa, Mackinac, Luce, Alger, Schoolcraft, Delta, and 
Marquette Counties in the State of Michigan;
    (5) Clark, Eau Claire, Jackson, La Crosse, Monroe, Vernon, Crawford, 
Shawano, Marathon, Wood, Juneau, Adams, Columbia, and Sauk Counties in 
the State of Wisconsin and Houston County in the State of Minnesota;
    (6) With respect to all other reservations within the funded scope 
of the Indian health program, the contract health services delivery area 
shall consist of a county which includes all or part of a reservation, 
and any county or counties which have a common boundary with the 
reservation.
    (b) The Secretary may from time to time, redesignate areas or 
communities within the United States as appropriate for inclusion or 
exclusion from a contract health service delivery area after 
consultation with the tribal governing body or bodies on those 
reservations included within the contract health service delivery area. 
The Secretary will take the following criteria into consideration:
    (1) The number of Indians residing in the area proposed to be so 
included or excluded;
    (2) Whether the tribal governing body has determined that Indians 
residing in the area near the reservation are socially and economically 
affiliated with the tribe;
    (3) The geographic proximity to the reservation of the area whose 
inclusion or exclusion is being considered; and
    (4) The level of funding which would be available for the provision 
of contract health services.
    (c) Any redesignation under paragraph (b) of this section shall be 
made in accordance with the procedures of the Administrative Procedure 
Act (5 U.S.C. 553).



Sec. 136.23  Persons to whom contract health services will be provided.

    (a) In general. To the extent that resources permit, and subject to 
the provisions of this subpart, contract health services will be made 
available as medically indicated, when necessary health services by an 
Indian Health Service facility are not reasonably accessible or 
available, to persons described in and in accordance with Sec. 136.12 
of this part if those persons:
    (1) Reside within the United States and on a reservation located 
within a contract health service delivery area; or
    (2) Do not reside on a reservation but reside within a contract 
health service delivery area and:
    (i) Are members of the tribe or tribes located on that reservation 
or of the tribe or tribes for which the reservation was established; or
    (ii) Maintain close economic and social ties with that tribe or 
tribes.
    (b) Students and transients. Subject to the provisions of this 
subpart, contract health services will be made available to students and 
transients who would be eligible for contract health services at the 
place of their permanent residence within a contract health service 
delivery area, but are temporarily absent from their residence as 
follows:
    (1) Student--during their full-time attendance at programs of 
vocational, technical, or academic education, including normal school 
breaks (such as vacations, semester or other scheduled breaks occurring 
during their attendance) and for a period not to exceed 180 days after 
the completion of the course of study.
    (2) Transients (persons who are in travel or are temporarily 
employed, such as seasonal or migratory workers) during their absence.
    (c) Other persons outside the contract health service delivery area. 
Persons who leave the contract health service delivery area in which 
they are eligible for contract health service and are neither students 
nor transients will be eligible for contract health service for a period 
not to exceed 180 days from such departure.
    (d) Foster children. Indian children who are placed in foster care 
outside a contract health service delivery area

[[Page 730]]

by order of a court of competent jurisdiction and who were eligible for 
contract health services at the time of the court order shall continue 
to be eligible for contract health services while in foster care.
    (e) Priorities for contract health services. When funds are 
insufficient to provide the volume of contract health services indicated 
as needed by the population residing in a contract health service 
delivery area, priorities for service shall be determined on the basis 
of relative medical need.
    (f) Alternate resources. The term ``alternate resources'' is defined 
in Sec. 136.61(c) of Subpart G of this part.

[64 FR 58319, Oct. 28, 1999. Redesignated and amended at 67 FR 35342, 
May 17, 2002]



Sec. 136.24  Authorization for contract health services.

    (a) No payment will be made for medical care and services obtained 
from non-Service providers or in non-Service facilities unless the 
applicable requirements of paragraphs (b) and (c) of this section have 
been met and a purchase order for the care and services has been issued 
by the appropriate ordering official to the medical care provider.
    (b) In nonemergency cases, a sick or disabled Indian, an individual 
or agency acting on behalf of the Indian, or the medical care provider 
shall, prior to the provision of medical care and services notify the 
appropriate ordering official of the need for services and supply 
information that the ordering official deems necessary to determine the 
relative medical need for the services and the individual's eligibility. 
The requirement for notice prior to providing medical care and services 
under this paragraph may be waived by the ordering official if:
    (1) Such notice and information are provided within 72 hours after 
the beginning of treatment or admission to a health care facility; and
    (2) The ordering official determines that giving of notice prior to 
obtaining the medical care and services was impracticable or that other 
good cause exists for the failure to provide prior notice.
    (c) In emergency cases, a sick or disabled Indian, or an individual 
or agency acting on behalf of the Indian, or the medical care provider 
shall within 72 hours after the beginning of treatment for the condition 
or after admission to a health care facility notify the appropriate 
ordering official of the fact of the admission or treatment, together 
with information necessary to determine the relative medical need for 
the services and the eligibility of the Indian for the services. The 72-
hour period may be extended if the ordering official determines that 
notification within the prescribed period was impracticable or that 
other good cause exists for the failure to comply.



Sec. 136.25  Reconsideration and appeals.

    (a) Any person to whom contract health services are denied shall be 
notified of the denial in writing together with a statement of the 
reason for the denial. The notice shall advise the applicant for 
contract health services that within 30 days from the receipt of the 
notice the applicant:
    (1) May obtain a reconsideration by the appropriate Service Unit 
Director of the original denial if the applicant submits additional 
supporting information not previously submitted; or
    (2) If no additional information is submitted, may appeal the 
original denial by the Service Unit Director to the appropriate Area or 
program director. A request for reconsideration or appeal shall be in 
writing and shall set forth the grounds supporting the request or 
appeal.
    (b) If the original decision is affirmed on reconsideration, the 
applicant shall be so notified in writing and advised that an appeal may 
be taken to the Area or program director within 30 days of receipt of 
the notice of the reconsidered decision. The appeal shall be in writing 
and shall set forth the grounds supporting the appeal.
    (c) If the original or reconsidered decision is affirmed on appeal 
by the Area or program director, the applicant shall be so notified in 
writing and advised that a further appeal may be taken to the Director, 
Indian Health Service, within 30 days of receipt of the notice. The 
appeal shall be in writing and shall set the grounds supporting the 
appeal. The decision of the Director, Indian Health Service, shall 
constitute final administrative action.

[[Page 731]]



   Subpart D_Limitation on Charges for Services Furnished by Medicare-
                   Participating Hospitals to Indians

    Source: 72 FR 30710, June 4, 2007, unless otherwise noted.



Sec. 136.30  Payment to Medicare-participating hospitals for authorized Contract Health Services.

    (a) Scope. All Medicare-participating hospitals, which are defined 
for purposes of this subpart to include all departments and provider-
based facilities of hospitals (as defined in sections 1861(e) and (f) of 
the Social Security Act) and critical access hospitals (as defined in 
section 1861(mm)(1) of the Social Security Act), that furnish inpatient 
services must accept no more than the rates of payment under the 
methodology described in this section as payment in full for all items 
and services authorized by IHS, Tribal, and urban Indian organization 
entities, as described in paragraph (b) of this section.
    (b) Applicability. The payment methodology under this section 
applies to all levels of care furnished by a Medicare-participating 
hospital, whether provided as inpatient, outpatient, skilled nursing 
facility care, as other services of a department, subunit, distinct 
part, or other component of a hospital (including services furnished 
directly by the hospital or under arrangements) that is authorized under 
part 136, subpart C by a contract health service (CHS) program of the 
Indian Health Service (IHS); or authorized by a Tribe or Tribal 
organization carrying out a CHS program of the IHS under the Indian 
Self-Determination and Education Assistance Act, as amended, Pub. L. 93-
638, 25 U.S.C. 450 et seq.; or authorized for purchase under Sec. 
136.31 by an urban Indian organization (as that term is defined in 25 
U.S.C. 1603(h)) (hereafter ``I/T/U'').
    (c) Basic determination. (1) Payment for hospital services that the 
Medicare program would pay under a prospective payment system (PPS) will 
be based on that PPS. For example, payment for inpatient hospital 
services shall be made per discharge based on the applicable PPS used by 
the Medicare program to pay for similar hospital services under 42 CFR 
part 412. Payment for outpatient hospital services shall be made based 
on a PPS used in the Medicare program to pay for similar hospital 
services under 42 CFR part 419. Payment for skilled nursing facility 
(SNF) services shall be based on a PPS used in the Medicare program to 
pay for similar SNF services under 42 CFR part 413.
    (2) For Medicare participating hospitals that furnish inpatient 
services but are exempt from PPS and receive reimbursement based on 
reasonable costs (for example, critical access hospitals (CAHs), 
children's hospitals, cancer hospitals, and certain other hospitals 
reimbursed by Medicare under special arrangements), including provider 
subunits exempt from PPS, payment shall be made per discharge based on 
the reasonable cost methods established under 42 CFR part 413, except 
that the interim payment rate under 42 CFR part 413, subpart E shall 
constitute payment in full for authorized charges.
    (d) Other payments. In addition to the amount payable under 
paragraph (c)(1) of this section for authorized inpatient services, 
payments shall include an amount to cover: The organ acquisition costs 
incurred by hospitals with approved transplantation centers; direct 
medical education costs; units of blood clotting factor furnished to an 
eligible patient who is a hemophiliac; and the costs of qualified non-
physician anesthetists, to the extent such costs would be payable if the 
services had been covered by Medicare. Payment under this subsection 
shall be made on a per discharge basis and will be based on standard 
payments established by the Centers for Medicare & Medicaid Services 
(CMS) or its fiscal intermediaries.
    (e) Basic payment calculation. The calculation of the payment by I/
T/Us will be based on determinations made under paragraphs (c) and (d) 
of this section consistent with CMS instructions to its fiscal 
intermediaries at the time the claim is processed. Adjustments will be 
made to correct billing or claims processing errors, including when 
fraud is detected. I/T/Us shall pay the providing hospital the full PPS 
based rate, or the interim reasonable cost rate, without

[[Page 732]]

reduction for any co-payments, coinsurance, and deductibles required by 
the Medicare program from the patient.
    (f) Exceptions to payment calculation. Notwithstanding paragraph (e) 
of this section, if an amount has been negotiated with the hospital or 
its agent by the I/T/U, the I/T/U will pay the lesser of: The amount 
determined under paragraph (e) of this section or the amount negotiated 
with the hospital or its agent, including but not limited to capitated 
contracts or contracts per Federal law requirements;
    (g) Coordination of benefits and limitation on recovery. If an I/T/U 
has authorized payment for items and services provided to an individual 
who is eligible for benefits under Medicare, Medicaid, or another third 
party payor--
    (1) The I/T/U shall be the payor of last resort under Sec. 136.61;
    (2) If there are any third party payers, the I/T/U will pay the 
amount for which the patient is being held responsible after the 
provider of services has coordinated benefits and all other alternative 
resources have been considered and paid, including applicable co-
payments, deductibles, and coinsurance that are owed by the patient; and
    (3) The maximum payment by the I/T/U will be only that portion of 
the payment amount determined under this section not covered by any 
other payor; and
    (4) The I/T/U payment will not exceed the rate calculated in 
accordance with paragraph (e) of this section or the contracted amount 
(plus applicable cost sharing), whichever is less; and
    (5) When payment is made by Medicaid it is considered payment in 
full and there will be no additional payment made by the I/T/U to the 
amount paid by Medicaid (except for applicable cost sharing).
    (h) Claims processing. For a hospital to be eligible for payment 
under this section, the hospital or its agent must submit the claim for 
authorized services--
    (1) On a UB92 paper claim form (until abolished, or on an officially 
adopted successor form) or the HIPAA 837 electronic claims format ANSI 
X12N, version 4010A1 (until abolished, or on an officially adopted 
successor form) and include the hospital's Medicare provider number/
National Provider Identifier; and
    (2) To the I/T/U, agent, or fiscal intermediary identified by the I/
T/U in the agreement between the I/T/U and the hospital or in the 
authorization for services provided by the I/T/U; and
    (3) Within a time period equivalent to the timely filing period for 
Medicare claims under 42 CFR 424.44 and provisions of the Medicare 
Claims Processing Manual applicable to the type of item or service 
provided.
    (i) Authorized services. Payment shall be made only for those items 
and services authorized by an I/T/U consistent with part 136 of this 
title or section 503(a) of the Indian Health Care Improvement Act 
(IHCIA), Public Law 94-437, as amended, 25 U.S.C. 1653(a).
    (j) No additional charges. A payment made in accordance with this 
section shall constitute payment in full and the hospital or its agent 
may not impose any additional charge--
    (1) On the individual for I/T/U authorized items and services; or
    (2) For information requested by the I/T/U or its agent or fiscal 
intermediary for the purposes of payment determinations or quality 
assurance.



Sec. 136.31  Authorization by urban Indian organization.

    An urban Indian organization may authorize for purchase items and 
services for an eligible urban Indian (as those terms are defined in 25 
U.S.C. 1603(f) and (h)) according to section 503 of the IHCIA and 
applicable regulations. Services and items furnished by Medicare-
participating inpatient hospitals shall be subject to the payment 
methodology set forth in Sec. 136.30.



Sec. 136.32  Disallowance.

    (a) If it is determined that a hospital has submitted inaccurate 
information for payment, such as admission, discharge or billing data, 
an I/T/U may as appropriate--
    (1) Deny payment (in whole or in part) with respect to any such 
services, and;
    (2) Disallow costs previously paid, including any payments made 
under any methodology authorized under this subpart. The recovery of 
payments

[[Page 733]]

made in error may be taken by any method authorized by law.
    (b) For cost based payments previously issued under this subpart, if 
it is determined that actual costs fall significantly below the computed 
rate actually paid, the computed rate may be retrospectively adjusted. 
The recovery of overpayments made as a result of the adjusted rate may 
be taken by any method authorized by law.



                   Subpart E_Preference in Employment

    Authority: 25 U.S.C. 44, 45, 46 and 472; Pub. L. 83-568, 68 Stat 
674, 42 U.S.C. 2003.

    Source: 64 FR 58321, Oct. 28, 1999, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.



Sec. 136.41  Definitions.

    For purposes of making appointments to vacancies in all positions in 
the Indian Health Service, a preference will be extended to persons of 
Indian descent who are:
    (a) Members of any recognized Indian tribe now under Federal 
jurisdiction;
    (b) Descendants of such members who were, on June 1, 1934, residing 
within the present boundaries of any Indian reservation;
    (c) All others of one-half or more Indian blood of tribes indigenous 
to the United States;
    (d) Eskimos and other aboriginal people of Alaska; or
    (e) Until January 4, 1990, or until the Osage Tribe has formally 
organized, whichever comes first, a person of at least one-quarter 
degree Indian ancestry of the Osage Tribe of Indians, whose rolls were 
closed by an act of Congress.



Sec. 136.42  Appointment actions.

    (a) Preference will be afforded a person meeting any one of the 
definitions of Sec. 136.41 whether the placement in the position 
involves initial appointment, reappointment, reinstatement, transfer, 
reassignment, promotion, or any other personnel action intended to fill 
a vacancy.
    (b) Preference eligibles may be given a schedule A excepted 
appointment under 5 CFR 213.3116(b)(8). If the individuals are within 
reach on a Civil Service Register, they may be given a competitive 
appointment.

[64 FR 58321, Oct. 28, 1999. Redesignated and amended at 67 35342, May 
17, 2002]



Sec. 136.43  Application procedure for preference eligibility.

    To be considered a preference eligible, the person must submit with 
the employment application a Bureau of Indian Affairs certification that 
the person is an Indian as defined by Sec. 136.41 except that an 
employee of the Indian Health Service who has a certificate of 
preference eligibility on file in the Official Personnel Folder is not 
required to resubmit such proof but may instead include a statement on 
the application that proof of eligibility is on file in the Official 
Personnel Folder.

[64 FR 58319, Oct. 28, 1999. Redesignated and amended at 67 35342, May 
17, 2002]



   Subpart F_Abortions and Related Medical Services in Indian Health 
          Service Facilities and Indian Health Service Programs

    Authority: Sec. 1, 42 Stat. 208, (25 U.S.C. 13); sec. 1, Stat. 674, 
(42 U.S.C. 2001); sec. 3, 68 Stat. 674, (42 U.S.C. 2003).

    Source: 64 FR 58322, Oct. 28, 1999, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.



Sec. 136.51  Applicability.

    This subpart is applicable to the use of Federal funds in providing 
health services to Indians in accordance with the provisions of subparts 
A, B, and C of this part.



Sec. 136.52  Definitions.

    As used in this subpart:
    Physician means a doctor of medicine or osteopathy legally 
authorized to practice medicine and surgery at an Indian Health Service 
or tribally run facility, or by the state in which he or she practices.



Sec. 136.53  General rule.

    Federal funds may not be used to pay for or otherwise provide for 
abortions

[[Page 734]]

in the programs described in Sec. 136.51, except under the 
circumstances described in Sec. 136.54.

[64 FR 58322, Oct. 28, 1999. Redesignated and amended at 67 35342, May 
17, 2002]



Sec. 136.54  Life of the mother would be endangered.

    Federal funds are available for an abortion when a physician has 
found and so certified in writing to the appropriate tribal or other 
contracting organization, or Service Unit or Area Director, that ``on 
the basis of my professional judgment the life of the mother would be 
endangered if the fetus were carried to term.'' The certification must 
contain the name and address of the patient.



Sec. 136.55  Drugs and devices and termination of ectopic pregnancies.

    Federal funds are available for drugs or devices to prevent 
implantation of the fertilized ovum, and for medical procedures 
necessary for the termination of an ectopic pregnancy.



Sec. 136.56  Recordkeeping requirements.

    Documents required by Sec. 136.54 must be maintained for three 
years pursuant to the retention and custodial requirements for records 
at 45 CFR part 74, subpart C.

[64 FR 58322, Oct. 28, 1999. Redesignated and amended at 67 35342, May 
17, 2002]



Sec. 136.57  Confidentiality.

    Information which is acquired in connection with the requirements of 
this subpart may not be disclosed in a form which permits the 
identification of an individual without the individual's consent, except 
as may be necessary for the health of the individual or as may be 
necessary for the Secretary to monitor Indian Health Service program 
activities. In any event, any disclosure shall be subject to appropriate 
safeguards which will minimize the likelihood of disclosures of personal 
information in identifiable form.



                        Subpart G_Residual Status



Sec. 136.61  Payor of last resort.

    (a) The Indian Health Service is the payor of last resort for 
persons defined as eligible for contract health services under the 
regulations in this part, notwithstanding any State or local law or 
regulation to the contrary.
    (b) Accordingly, the Indian Health Service will not be responsible 
for or authorize payment for contract health services to the extent 
that:
    (1) The Indian is eligible for alternate resources, as defined in 
paragraph (c) of this section, or
    (2) The Indian would be eligible for alternate resources if he or 
she were to apply for them, or
    (3) The Indian would be eligible for alternate resources under State 
or local law or regulation but for the Indian's eligibility for contract 
health services, or other health services, from the Indian Health 
Service or Indian Health Service funded programs.
    (c) Alternate resources means health care resources other than those 
of the Indian Health Service. Such resources include health care 
providers and institutions, and health care programs for the payment of 
health services including but not limited to programs under titles XVIII 
or XIX of the Social Security Act (i.e., Medicare, Medicaid), State or 
local health care programs, and private insurance.

[64 FR 58322, Oct. 28, 1999]



    Subpart H_Grants for Development, Construction, and Operation of 
                         Facilities and Services

    Authority: Secs. 104, 107, 25 U.S.C. 450h(b), 450k; Sec. 3, Pub. L. 
83-568, 42 U.S.C. 2003.

    Source: 40 FR 53143, Nov. 14, 1975, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.



Sec. 136.101  Applicability.

    The regulations of this subpart are applicable to grants awarded 
pursuant to section 104(b) of Pub. L. 93-638, 25 U.S.C. 450h(b) for (a) 
projects for development including feasibility studies, construction, 
operation, provision, or maintenance of services and facilities provided 
to Indians and, (b) for projects for planning, training, evaluation or 
other activities designed to improve the capacity of a tribal 
organization to

[[Page 735]]

enter into a contract or contracts pursuant to section 103 of the Act. 
Such grants may include the cost of training personnel to perform grant 
related activities.



Sec. 136.102  Definitions.

    As used in this subpart:
    (a) Act means Title I of the Indian Self-Determination and Education 
Assistance Act, Pub. L. 93-638 (88 Stat. 2203).
    (b) Indian means a person who is a member of an Indian tribe.
    (c) Indian tribe means any Indian tribe, band, nation, rancheria, 
Pueblo, colony or community, including any Alaska Native Village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act, Pub. L. 92-203 (85 Stat. 688 
which is recognized as eligible by the United States Government for the 
special programs and services provided by the United States to Indians 
because of their status as Indians.
    (d) Tribal organization means:
    (1) The recognized governing body of any Indian tribe; or
    (2) Any legally established organization of Indians which is:
    (i) Controlled, sanctioned or chartered by such governing body or 
bodies; or
    (ii) Democratically elected by the adult members of the Indian 
community to be served by such organization and which includes the 
maximum participation of Indians in all phases of its activities.
    (e) Secretary means the Secretary of the Department of Health and 
Human Services and any other officer or employee of the Department of 
Health and Human Services to whom the authority involved has been 
delegated.
    (f) Grantee means the tribe or tribal organization that receives a 
grant under section 104(b) of the Act and this subpart and assumes the 
legal and financial responsibility for the funds awarded and for the 
performance of the grant supported activity in accordance with the Act 
and these regulations.
    (g) Indian owned economic enterprise means any commercial, 
industrial, or business activity established or organized for the 
purpose of profit which is not less than 51 percent Indian owned.



Sec. 136.103  Eligibility.

    Any Indian tribe or tribal organization is eligible to apply for a 
grant under this subpart.



Sec. 136.104  Application.

    (a) Forms for applying for grants are governed by 45 CFR part 74, 
subpart N.
    (b) In addition to such other pertinent information as the Secretary 
may require, the application for a grant under this subpart shall 
contain the following:
    (1) A description of the applicant including an indication whether 
the applicant is a Tribe or tribal organization, and if the latter:
    (i) The legal and organizational relationship of the applicant to 
the Indians in the Area to be served or effected by the project.
    (ii) A description of the current and proposed participation of 
Indians in the activities of applicant.
    (iii) Whether applicant is controlled, sanctioned or chartered by 
the governing body of the Indians to be served, and if so, evidence of 
such fact.
    (iv) If elected, a description of the election process, voting 
criteria, and extent of voter participation in the election designating 
the organization.
    (2) A narrative description of the project including its goals and 
objectives and the manner in which the proposed project is compatible 
with published Indian Health Service statements of availability of 
funds, the manner in which those goals and objectives are to be 
attained, and a work and time schedule which will be utilized to 
accomplish each goal and objective.
    (3) A description of applicant's staff, present or proposed, 
including their qualifications, academic training, responsibilities and 
functions.
    (4) A description of the manner in which the staff is or will be 
organized and supervised to carry out proposed activities.
    (5) A description of training to be provided as part of the proposed 
project.
    (6) A description of the administrative, managerial, and 
organizational

[[Page 736]]

arrangements and resources to be utilized to conduct the proposed 
project.
    (7) An itemized budget for the budget period (normally 12 months) 
for which support is sought and justification of the amount of grant 
funds requested.
    (8) The intended financial participation, if any, of the applicant, 
specifying the type of contributions such as cash or services, loans of 
full or part-time staff, equipment, space materials or facilities, or 
other contributions.
    (9) Where health services are to be provided, a description of the 
nature of the services to be provided and the population to be served.
    (10) A description of the Federal property, real and personal, 
equipment, facilities and personnel which applicant proposes to utilize 
and a description of the arrangements which applicant has made or will 
make to assume responsibility for the operation and management of those 
facilities.
    (c) The application shall contain assurances satisfactory to the 
Secretary that the applicant will:
    (1) Where applicant is providing services, provide such services at 
a level and range which is not less than that provided by the Indian 
Health Service or that identified by the Service after negotiation with 
the applicant, as an appropriate level, range and standard of care.
    (2) Where providing services, provide services in accordance with 
law and applicable Indian Health Service policies and regulations.
    (3) Where providing services, provide services in a fair and uniform 
manner, consistent with medical need, to all Indian people.

(Approved by the Office of Management and Budget under control number 
0915-0045)

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1853, Jan. 14, 1985]



Sec. 136.105  Project elements.

    A project supported under this subpart must:
    (a) Have sufficient, adequately trained staff in relation to the 
scope of the project.
    (b) Maintain a mechanism for dealing with complaints regarding the 
delivery of health services or performance of project activities.
    (c) Hold confidential all information obtained by the personnel of 
the project from participants in the project related to their 
examination, care, and treatment, and shall not release such information 
without the individuals' consent except as may be required by law, as 
may be necessary to provide service to the individual, or as may be 
necessary to monitor the operations of this program or otherwise protect 
the public health. Information may be disclosed in a form which does not 
identify particular individuals.
    (d) Operate with the approval, support, and involvement of the 
tribe, tribes, or Indian communities in the area served by the local 
facility and program.
    (e) Keep in force adequate liability insurance in accordance with 
the approved application unless the Secretary, for good cause shown, has 
determined that such insurance was not obtainable or appropriate or has 
determined that such insurance may be permitted to expire or lapse. The 
insurance shall provide that prior to cancellation the Secretary must be 
notified and must further provide that for each such policy of insurance 
the carrier shall waive any right it may have to raise as a defense the 
tribe's sovereign immunity from suit but such waiver shall extend only 
to claims the amount and nature of which are within the coverage and 
limits of the policy and shall not authorize or empower the insurance 
carrier to waive or otherwise limit the tribe's sovereign immunity 
outside or beyond the coverage and limits of the policy of insurance.

    Note: This provision is excepted from application of 45 CFR 74.15 by 
section 103(c) of Pub. L. 93-638.

    (f) Provide services at a level and range which is not less than 
that provided by the Indian Health Service or that identified by the 
Service as an appropriate level, range, and standard of care.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1854, Jan. 14, 1985]



Sec. 136.106  Grant award and evaluation.

    (a) Within the limits of funds determined by the Secretary to be 
available for such purpose, the Secretary may

[[Page 737]]

award grants under this subpart to applicants whose project will, in the 
judgment of the Secretary, best promote the purposes of the Act, and the 
regulations of this subpart, taking into account:
    (1) The apparent capability of the applicant to organize and manage 
the proposed project successfully considering, among other things the 
adequacy of staff, management systems, equipment and facilities.
    (2) The soundness of the applicant's plan for conducting the project 
and for assuring effective utilization of grant funds.
    (3) The adequacy of the budget in relation to the scope of the 
project and available funds.
    (4) The relative effectiveness of the applicant's plan, as set forth 
in the application, to carry out each of the requirements Sec. 136.105.
    (5) The compatibility of the proposed project with the published 
goals and responsibilities of the IHS in carrying out its statutory 
mission.
    (b) The Notice of Grant Awards specifies how long the Secretary 
intends to support the project period without requiring the project to 
re-compete for funds. This period, called the project period, will 
usually be for one to two years. The total project period comprises the 
original project period and any extension. Generally the grant will be 
for a one-year budget period, any subsequent award will also be a one-
year budget period. A grantee must submit a separate application for 
each subsequent year. Decisions regarding continuation awards and the 
funding level of such awards will be made after consideration of such 
factors as the grantee's progress and management practices, and the 
availability of funds. In all cases, awards require a determination by 
the Secretary that funding is in the best interest of the Federal 
Government.
    (c) Neither the approval of any application nor the award of any 
grant commits or obligates the Federal Government in any way to make any 
additional, supplemental, continuation or other award with respect to 
any approved application or portion of an approved application.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1854, Jan. 14, 1985. 
Redesignated and amended at 67 FR 35342, May 17, 2002]



Sec. 136.107  Use of project funds.

    (a) A grantee shall only spend funds it receives under this subpart 
according to the approved application and budget, the regulations of 
this subpart, the terms and conditions of the award and the applicable 
cost principles prescribed in subpart Q of 45 CFR part 74.
    (b) The provisions of any other Act notwithstanding, any funds made 
available to a tribal organization under grants pursuant to section 
104(b) of the Act may be used as matching shares for any other Federal 
grant programs which contribute to the purposes for which grants under 
this section are made.

    Note: This provision is excepted from application of 45 CFR 74.53 by 
section 104(c) of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1854, Jan. 14, 1985]



Sec. 136.108  [Reserved]



Sec. 136.109  Availability of appropriations.

    The Secretary will from time to time publish a notice in the Federal 
Register indicating by areas the allotment of funds and categories of 
activities for which awards may be made under this subpart. The 
Secretary may revise such allotments and categories from time to time 
and will promptly publish a notice of such revisions in the Federal 
Register.



Sec. 136.110  Facilities construction.

    In addition to other requirements of this subpart:
    (a) An applicant for a construction grant to build, renovate, 
modernize, or remodel a hospital, clinic, health station or quarters for 
housing personnel associated with such facilities, must in its 
application:
    (1) Provide its assessment of the environmental impact of the 
project as called for by section 102(2)(c) of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332(c)).

[[Page 738]]

    (2) Furnish its evaluation of the project site in accordance with 
the terms and conditions of E.O. 11296, 31 FR 10663 (August 10, 1966) 
relating to the evaluation of flood hazards in locating federally owned 
or financed facilities.
    (b) The following requirements are applicable to each construction 
grant to build, renovate, modernize, or remodel a hospital, clinic, 
health station or quarters for housing personnel associated with such 
facilities.
    (1) Competitive bids. The approval of the Secretary shall be 
obtained before the project is advertised or placed on the market for 
bidding. The approval shall include a determination by the Secretary 
that the final plan and specifications conform to the minimum standards 
of construction and equipment specified in the grant award or in HHS 
documents specified in the grant award.
    (2) There will be no preference given to local contractors or 
suppliers over non-local contractors or suppliers, except as otherwise 
provided in these regulations.
    (3) Construction contracts and subcontracts under this program are 
subject to the Davis-Bacon Act (40 U.S.C. 276a et seq.). For 
requirements that grantees must observe for enforcing compliance by 
contractors and subcontractors, see the section on contract provisions 
in the procurement standards for HHS grantees made applicable by subpart 
P of 45 CFR part 74.
    (4) Minimum standards of construction and equipment. The plans and 
specifications for the project will conform to the minimum standards of 
construction and equipment specified in the grant award or in HHS 
documents specified in the grant award.
    (5) The following provision must be included in all construction 
contracts let by the grantee: ``The Secretary of the Department of 
Health and Human Services shall have access at all reasonable times to 
work wherever it is in preparation or progress, and the contractor shall 
provide proper facilities for such access and inspection.''

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1854, Jan. 14, 1985]



Sec. 136.111  Interest.

    Tribes and Tribal organizations shall not be held accountable for 
interest earned on grant funds, pending disbursement by such 
organization.

    Note: This provision is excepted from application of 45 CFR 74.47(a) 
by section 106(b) of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1854, Jan. 14, 1985]



Sec. 136.112  Additional conditions.

    The Secretary may with respect to any grant award impose additional 
conditions prior to or at the time of any award when in his judgment 
such conditions are necessary to assure or protect advancement of the 
approved project, the interests of public health, or the conservation of 
grant funds.



Sec. 136.113  Fair and uniform provision of services.

    Services provided pursuant to a grant under this subpart shall be 
provided by the Grantee in a fair and uniform manner to all participants 
in the project consistent with their medical need, the policies and 
regulations of the Indian Health Service, and the Act.



Sec. 136.114  Applicability of other Department regulations.

    Several other regulations apply to grants under this subpart. These 
include to the extent applicable but are not limited to:

42 CFR part 50, subpart D, Public Health Service grant appeals procedure
45 CFR part 16, Procedures of the Departmental Grant Appeals Board
45 CFR part 74, Administration of grants
45 CFR part 75, Informal grant appeals procedures
45 CFR part 84, Nondiscrimination on the basis of handicap in programs 
and activities receiving or benefiting from Federal financial assistance
45 CFR part 86, Nondiscrimination on the basis of sex in education 
programs and activities receiving or benefiting from Federal financial 
assistance
45 CFR part 91, Nondiscrimination on the basis of age in HHS programs or 
activities receiving Federal financial assistance

    Note: To the extent they provide special benefits to Indians, grants 
under this subpart are exempted from the requirements of section 601 of 
the Civil Rights Act of 1964 [42 U.S.C. 200d], prohibiting 
discrimination on

[[Page 739]]

the basis of race, color or national origin, by regulation at 45 CFR 
80.3(d) which provides, with respect to Indian health services, that, 
``An individual shall not be deemed subjected to discrimination by 
reasons of his exclusion from the benefits of a program limited by 
Federal law to individuals of a particular race, color, or national 
origin different from his.

[50 FR 1854, Jan. 14, 1985]



Sec. 136.115  Rescission of grants.

    (a) When the Secretary determines that the performance of a grantee 
under these regulations involves (1) the violation of the rights or 
endangerment of the health, safety, or welfare of any persons, or (2) 
gross negligence or the mismanagement in the handling or use of funds 
under the grant, the Secretary will, in writing, notify the grantee of 
such determination and will request that the grantee take such 
corrective action, within such period of time, as the Secretary may 
prescribe.
    (b) When the Secretary determines that a grantee has not taken 
corrective action (as prescribed by him under paragraph (a) of this 
section) to his satisfaction, he may, after providing the grantee an 
opportunity for a hearing in accordance with paragraph (c) of this 
section, rescind the grant in whole or in part and if he deems it 
appropriate, assume or resume control or operation of the program, 
activity, or service involved.
    (c) When the Secretary has made a determination described in 
paragraph (b) of this section, he shall in writing notify the grantee of 
such determination and of the grantee's right to request a review of 
such determination (and of the determination described in paragraph (a) 
of this section) under the Public Health Service Grant Appeals Procedure 
(42 CFR part 50, subpart D). Such notification by the Secretary shall 
set forth the reasons for the determination in sufficient detail to 
enable the grantee to respond and shall inform the grantee of its 
opportunity for review under such subpart D. If the review held under 
subpart D results in a response adverse to the grantee's position, the 
grantee shall be informed of its right to have a hearing before the 
Department Grant Appeals Board, pursuant to 45 CFR part 16.
    (d) Where the Secretary determines that a grantee's performance 
under a grant awarded under this subpart poses an immediate threat to 
the safety of any person, he may immediately rescind the grant in whole 
or in part and if he deems it appropriate, assume or resume control or 
operation of the program, activity, or service involved. Upon such 
recission he will immediately notify the grantee of such action and the 
basis or reasons therefor; and offer the grantee an opportunity for a 
hearing to be held within 10 days of such action. If the grantee 
requests such a hearing, the Secretary will designate three officers or 
employees of the Department to serve as a hearing panel. No officer or 
employee from the immediate office of the official who made the decision 
to rescind the grant under this paragraph may be designated to serve on 
the hearing panel.
    (1) The hearing shall be commenced within 10 days after the 
recission of the grant, shall be held on the record and shall afford the 
grantee the right:
    (i) To notice of the issues to be considered;
    (ii) To be represented by counsel;
    (iii) To present witnesses on grantee's behalf; and
    (iv) To cross-examine other witnesses either orally or through 
written interrogatories.
    (2) The hearing panel shall, within 25 days after the conclusion of 
the hearing, notify all parties in writing of its decision.
    (3) Such decision shall not be subject to further hearing under 42 
CFR part 50, subpart D or 45 CFR part 16.
    (e) In any case where the Secretary has rescinded a grant under 
paragraph (b) or (d) of this section, he may decline to enter into a new 
grant agreement with the grantee until such time as he is satisfied that 
the basis for the recission has been corrected. Nothing in this section 
shall be construed as contravening the Occupational Safety and Health 
Act of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651).
    (f) In any case where the Secretary has rescinded a grant for the 
delivery of health services under this subpart, the grantee shall, upon 
the request of

[[Page 740]]

the Secretary, transfer to the Secretary all medical records compiled in 
the operation of the supported project.

    Note: This section is an exception to 45 CFR part 74, subpart M 
required by section 109 of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1855, Jan. 14, 1985]



Sec. 136.116  Reports.

    In addition to the reporting and information requirements provided 
in subpart J of 45 CFR part 74 made applicable to grants under this 
subpart by Sec. 136.114, each recipient of Federal financial assistance 
shall make such reports and information available to the Indian people 
served or represented by such recipient as and in a manner determined by 
the Secretary to be adequate.

    Note: This section is a requirement in addition to 45 CFR part 74 
and is required by section 5(c) of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1855, Jan. 14, 1985. 
Redesignated and amended at 67 FR 35342, May 17, 2002]



Sec. 136.117  Amendment of regulations.

    Before revising or amending the regulations in this subpart, the 
Secretary shall take the following actions:
    (a) Consult with Indian Tribes and national and regional Indian 
organizations to the extent practicable about the need for revision or 
amendment and consider their views in preparing the proposed revision or 
amendment.
    (b) Present the proposed revision or amendment to the Committees on 
Interior and Insular Affairs of the United States Senate and House of 
Representatives.
    (c) Publish the proposed revisions or amendments in the Federal 
Register as proposed rulemaking to provide adequate notice to receive 
comments from, all interested parties.
    (d) After consideration of all comments received, publish the 
regulations in the Federal Register in final form not less than 30 days 
before the date they are made effective.



Sec. 136.118  Effect on existing rights.

    The regulations in this part are not meant to and do not:
    (a) Affect, modify, diminish, or otherwise impair the sovereign 
immunity from suit enjoyed by an Indian tribe;
    (b) Authorize, require or permit the termination of any existing 
trust responsibility of the United States with respect to the Indian 
people;
    (c) Permit significant reduction in services to Indian people as a 
result of this subpart.



Sec. 136.119  Penalties.

    Section 6 of Pub. L. 93-638, 25 U.S.C. 450(d) provides:

    Whoever, being an officer, director, agent, or employee of, or 
connected in any capacity with, any recipient of a contract, 
subcontract, grant, or subgrant pursuant to this Act or the Act of April 
16, 1934 (48 Stat. 596), as amended, embezzles, willfully misapplies, 
steals, or obtains by fraud any of the money, funds, assets, or property 
which are the subject of such a grant, subgrant, contract, or 
subcontract, shall be fined not more than $10,000 or imprisoned for not 
more than two years, or both, but if the amount so embezzled, 
misapplied, stolen, or obtained by fraud does not exceed $100, he shall 
be fined not more than $1,000 or imprisoned not more than one year, or 
both.



Sec. 136.120  Use of Indian business concerns.

    Grants awarded pursuant to this subpart will incorporate the 
following:
    Use of Indian business concerns.
    (a) As used in this clause, the term ``Indian organizations of an 
Indian-owned economic enterprise'' as defined in section 102(g) of this 
subpart.
    (b) The grantee agrees to give preference to qualified Indian 
business concerns in the awarding of any contracts, subcontracts or 
subgrants entered into under the grant consistent with the efficient 
performance of the grant. The grantee shall comply with any preference 
requirements regarding Indian business concerns established by the 
tribe(s) receiving services under the grant to the extent that such 
requirements are consistent with the purpose and intent of this 
paragraph.

    Note: This section is an exception to 45 CFR part 74, required by 
section 7(b) of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1855, Jan. 14, 1985]

[[Page 741]]



Sec. 136.121  Indian preference in training and employment.

    (a) Any grant made under this subpart, or a contract or subgrant 
made under such a grant shall require that, to the greatest extent 
feasible preferences and opportunities for training and employment in 
connection with the administration of such grant, or contract or 
subgrant made under such grant, shall be given to Indians.
    (b) The grantee shall include the requirements of paragraph (a) of 
this section in all contracts and subgrants made under a grant awarded 
under this subpart.

Subpart I [Reserved]



          Subpart J_Indian Health Care Improvement Act Programs

    Authority: Secs. 102, 103, 106, 502, 702, and 704 of Pub. L. 94-437 
(25 U.S.C. 1612, 1613, 1615, 1652, 1672 and 1674); sec. 338G of the 
Public Health Service Act, 95 Stat. 908 (42 U.S.C. 254r).

    Source: 42 FR 59646, Nov. 18, 1977, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.

    Subdivision J-1--Provisions of General and Special Applicability



Sec. 136.301  Policy and applicability.

    (a) Policy. (1) It is the policy of the Secretary to encourage 
Indians to enter the health professions and to ensure the availability 
of Indian health professionals to serve Indians. The recruitment and 
scholarship programs under this subpart will contribute to this 
objective.
    (2) The regulations of this subpart are intended to be consistent 
with principles of Indian self-determination and to supplement the 
responsibilities of the Indian Health Sevice for Indian health manpower 
planning and for assisting Indian tribes and tribal organizations in the 
development of Indian manpower programs.
    (b) Applicability. The regulations of this subpart are applicable to 
the following activities authorized by the Indian Health Care 
Improvement Act:
    (1) The award of health professions recruitment grants under section 
102 of the Act to recruit Indians into the health professions 
(Subdivision J-2);
    (2) The award of preparatory scholarship grants and pregraduate 
scholarship grants under section 103 of the Act, as amended, to Indians 
undertaking compensatory and preprofessional education (Subdivisions J-3 
and J-8);
    (3) The award of Indian Health Scholarship grants pursuant to 
section 338G of the Public Health Service Act (42 U.S.C. 254r) to Indian 
or other students in health professions schools (Subdivision J-4):
    (4) The provision of continuing education allowances to health 
professionals employed by the Service under section 106 of the Act 
(Subdivision J-5);
    (5) Contracts with urban Indian organizations under section 502 of 
the Act to establish programs in urban areas to make health services 
more accessible to the urban Indian population (Subdivision J-6); and
    (6) Leases with Indian tribes under section 704 of the Act 
(Subdivision J-7).

[42 FR 59646, Nov. 18, 1977, as amended at 49 FR 7381, Feb. 29, 1984; 50 
FR 1855, Jan. 14, 1985]



Sec. 136.302  Definitions.

    As used in this subpart: (a) Act means the Indian Health Care 
Improvement Act, Pub. L. 94-437 (25 U.S.C. 1601 et seq.).
    (b) Academic year means the traditional approximately 9 month 
September to June annual session, except for students who attend summer 
session in addition to the traditional academic year during a 12 month 
period, for whom the academic year will be considered to be of 
approximately 12 months duration.
    (c) [Reserved]
    (d) Compensatory preprofessional education means any preprofessional 
education necessary to compensate for deficiencies in an individual's 
prior education in order to enable that individual to qualify for 
enrollment in a health professions school.
    (e) Health or educational entity means an organization, agency, or 
combination thereof, which has the provision of health or educational 
programs as one of its major functions.

[[Page 742]]

    (f) Health professions school means any of the schools defined in 
paragraphs (m), (n), or (o) of this section.
    (g) Hospital means general, tuberculosis, mental, and other types of 
hospitals, and related facilities such as laboratories, outpatient 
departments, extended care facilities, facilities related to programs 
for home health services, self-care units, education or training 
facilities for health professions personnel operated as an integral part 
of a hospital, and central services facilities operated in connection 
with hospitals, but does not include any hospital providing primarily 
domicillary care.
    (h) Indian or Indians means, for purposes of Subdivisions J-2, J-3, 
J-4, and J-8 of this subpart, any person who is a member of an Indian 
tribe, as defined in parargraph (i) of this section or any individual 
who (1), irrespective of whether he or she lives on or near a 
reservation, is a member of a tribe, band or other organized group 
terminated since 1940 and those recognized now or in the future by the 
State in which they reside, or who is the natural child or grandchild of 
any such member, or (2) is an Eskimo or Aleut or other Alaska Native, or 
(3) is considered by the Secretary of the Interior to be an Indian for 
any purpose, or (4) is determined to be an Indian under regulations 
promulgated by the Secretary.
    (i) Indian health organization means a nonprofit corporate body 
composed of Indians which provides for the maximum participation of all 
interested Indian groups and individuals and which has the provision of 
health programs as its principal function.
    (j) Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska native village or 
group or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.), which is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians.
    (k) Nonprofit as applied to any private entity means that no part of 
the net earnings of such entity inures or may lawfully inure to the 
benefit of any private shareholder or individual.
    (l) [Reserved]
    (m) School of allied health professions means a junior college, 
college, or university--
    (1) Which provides, or can provide, programs of education leading to 
a certificate, or to an associate or baccalaureate degree (or the 
equivalent or either), or to a higher degree for preparing personnel 
with responsibilities for supporting, complementing, or supplementing 
the professional functions of physicians, dentists, and other health 
professionals in the delivery of health care to patients or assisting 
environmental engineers and others in environmental health control and 
preventive medicine activities.
    (2) Which, if in a college or univerisity which does not include a 
teaching hospital or in a junior college, is affiliated through a 
written agreement with one or more hospitals which provide the hospital 
component of the clinical training required for completion of such 
programs of education. The written agreement shall be executed by 
individuals authorized to act for their respective institutions and to 
assume on behalf of their institution the obligations imposed by such 
agreement. The agreement shall provide:
    (i) A description of the responsibilities of the school of allied 
health professions, the responsibilities of the hospital, and their 
joint responsibilities with respect to the clinical components of such 
programs of education; and
    (ii) A description of the procedure by which the school of allied 
health professions and the hospital will coordinate the academic and 
clinical training of students in such programs of education; and
    (iii) That, with respect to the clinical component of each such 
program of education, the teaching plan and resources have been jointly 
examined and approved by the appropriate faculty of the school of allied 
health professions and the staff of the hospital.
    (3) Which is accredited or assured accreditation by a recognized 
body or bodies approved for such purpose by the Commissioner of 
Education of the Department of Health and Human Services.

[[Page 743]]

    (n) School of medicine, school of dentistry, school of osteopathy, 
school of pharmacy, school of optometry, school of podiatry, school of 
veterinary medicine, and school of public health means a school which 
provides training leading, respectively, to a degree of doctor of 
medicine, a degree of doctor of dental surgery or an equivalent degree, 
a degree of doctor of osteopathy, a degree of bachelor of science in 
pharmacy or an equivalent degree, a degree of doctor of podiatry or an 
equivalent degree, and graduate degree in public health, and including 
advanced training related to such training provided by any such school, 
and is accredited or assured accreditation by a recognized body or 
bodies approved for such purpose by the Commissioner of Education of the 
Department of Health and Human Services.
    (o) School of nursing means a collegiate, associate degree, or 
diploma school of nursing, as those terms are defined below:
    (1) The term collegiate school of nursing means a department, 
division, or other administrative unit in a college or university which 
provides primarily or exclusively a program of education in professional 
nursing and allied subjects leading to the degree of bachelor of arts, 
bachelor of science, bachelor of nursing, or to an equivalent degree, or 
to a graduate degree in nursing, and including advanced training related 
to such program of education provided by such school, but only if such 
program, or such unit, college or university is accredited;
    (2) The term associated degree school of nursing means a department, 
division, or other administrative unit in a junior college, community 
college, college, or university which provides primarily or exclusively 
a two-year program of education in professional nursing and allied 
subjects leading to an associate degree in nursing or to an equivalent 
degree, but only if such program, or such unit, college or university is 
accredited;
    (3) The term diploma school of nursing means a school affiliated 
with a hospital or university, or an independent school, which provides 
primarily or exclusively a program of education in professional nursing 
and allied subjects leading to a diploma or to equivalent indicia that 
such program has been satisfactorily completed, but only if such 
program, or such affiliated school or such hospital or university or 
such independent school is accredited.
    (4) The term accredited as used in this subsection when applied to 
any program of nurse education means a program accredited or assured 
accreditation by a recognized body or bodies, or by a State agency, 
approved for such purpose by the Commissioner of Education of the 
Department of Health and Human Services and when applied to a hospital, 
school, college, or university (or a unit thereof) means a hospital, 
school, college, or university (or a unit thereof) which is accredited 
or assured accreditation by a recognized body or bodies, or by a State 
agency, approved for such purpose by the Commissioner of Education of 
the Department of Health and Human Services.
    (p) Secretary means the Secretary of Health and Human Services and 
any other Officer or employee of the Department of Health and Human 
Services to whom the authority involved has been delegated.
    (q) Service means the Indian Health Service.
    (r) State or local government means any public health or educational 
entity which is included within the definition of State or local 
government in 45 CFR 74.3 and Indian tribes or tribal organizations.
    (s) Tribal organization means the elected governing body of any 
Indian tribe or any legally established organization of Indians which is 
controlled by one or more such bodies or by a board of directors elected 
or selected by one or more such bodies (or elected by the Indian 
population to be served by such organization) and which includes the 
maximum participation of Indians in all phases of its activities.
    (t) Urban center means any city, with a population of 10,000 or more 
as determined by the United States Census Bureau, which the Secretary 
determines has a sufficient urban Indian population with unmet health 
needs to warrant assistance under title V of the Act.
    (u) Urban Indian means any individual who resides in an urban 
center,

[[Page 744]]

as defined in paragraph(s) of this section, and who meets one or more of 
the four criteria in paragraphs (h) (1) through (4) of this section.
    (v) Urban Indian organization means a nonprofit corporate body 
situated in an urban center which:
    (1) Is governed by an Indian controlled board of directors:
    (2) Has the provision of health programs as:
    (i) Its principal function, or
    (ii) One of its major functions and such health progams are 
administered by a distinct organizational unit within the organization.
    (3) Provides for the maximum participation of all interested Indian 
groups and individuals; and
    (4) Is capable of legally cooperating with other public and private 
entities for the purpose of performing the activities described in Sec. 
36.350(a) of Subdivision J-6 of this subpart. Except, that criteria (2) 
and (3) of this subsection shall not apply to an organization 
administering an urban Indian health project under a contract with the 
Secretary prior to October 1, 1977, for the period of such contract or 
until July 1, 1978, whichever is later.

[42 FR 59646, Nov. 18, 1977, as amended at 49 FR 7381, Feb. 29, 1984; 50 
FR 1855, Jan. 14, 1985]



Sec. 136.303  Indians applying for scholarships.

    (a) For purposes of scholarship grants under Subdivisions J-3 and J-
4 of this subpart, Indian applicants must submit evidence of their 
tribal membership (or other evidence that that applicant is an Indian as 
defined in paragraph (h) of Sec. 136.302 of this subdivision) 
satisfactory to the Secretary.
    (b) Where an applicant is a member of a tribe recognized by the 
Secretary of the Interior, the applicant must submit evidence of his or 
her tribal membership, such as:
    (1) Certification of tribal enrollment by the Secretary of the 
Interior acting through the Bureau of Indian Affairs (BIA); or
    (2) In the absence of such BIA certification, documentation that the 
applicant meets the requirements of tribal membership as prescribed by 
the charter, articles of incorporation or other legal instrument of the 
tribe and has been officially designated a tribal member by an 
authorized tribal official; or
    (3) Other evidence of tribal membership satisfactory to the 
Secretary.
    (c) Where the applicant is a member of a tribe terminated since 1940 
or a State recognized tribe, the applicant must submit documentation 
that the applicant meets the requirements of tribal membership as 
prescribed by the charter, articles of incorporation or other legal 
instrument of the tribe and has been officially designated a tribal 
member by an authorized tribal official; or other evidence, satisfactory 
to the Secretary, that the applicant is a member of the tribe. In 
addition, if the terminated or State recognized tribe of which the 
applicant is a member is not on a list of such tribes published by the 
Secretary in the Federal Register. the applicant must submit 
documentation as may be required by the Secretary that the tribe is a 
tribe terminated since 1940 or is recognized by the State in which the 
tribe is located in accordance with the law of that State.
    (d) An applicant who is not a tribal member, but who is a natural 
child or grandchild of a tribal member as defined in paragraph (h) of 
Sec. 36.302 of this subdivision must submit evidence of such fact which 
is satisfactory to the Secretary, in addition to evidence of his or her 
parent's or grandparent's tribal membership in accordance with 
paragraphs (b) and (c) of this section.

[42 FR 59646, Nov. 18, 1977. Redesignated and amended at 67 FR 35342, 
May 17, 2002]



Sec. 136.304  Publication of a list of allied health professions.

    The Secretary, acting through the Service, shall publish from time 
to time in the Federal Register a list of the allied health professions 
for consideration for the award of preparatory and Indian Health 
scholarships under subdivisions J-3 and J-4 of this Subpart, based upon 
his determination of the relative needs of Indians for additional 
service in specific allied health professions. In making that 
determination, the needs of the Service will be given priority 
consideration.

[[Page 745]]



Sec. 136.305  Additional conditions.

    The Secretary may, with respect to any grant award under this 
subpart, impose additional conditions prior to or at the time of any 
award when in his judgment such conditions are necessary to assure or 
protect advancement of the approved project, the interests of the public 
health, or the conservation of grant funds.

    Note: Nondiscrimination. Grants and contracts under this subpart are 
exempted from the requirements of section 601 of the Civil Rights Act of 
1964 (42 U.S.C. 2000d), prohibiting discrimination on the basis of race, 
color or national origin, by regulation at 45 CFR 80.3(d) which 
provides, with respect to Indian Health Services, that ``An individual 
shall not be deemed subjected to discrimination by reason of his 
exclusion from the benefits of a program limited by Federal law to 
individuals of a particular race, color, or national origin different 
from his.''

[42 FR 59646, Nov. 18, 1977, as amended at 50 FR 1855, Jan. 14, 1985]

   Subdivision J-2--Health Professions Recruitment Program for Indians



Sec. 136.310  Health professions recruitment grants.

    Grants awarded under this subdivision, in accordance with section 
102 of the Act, are for the purpose of assisting in meeting the costs of 
projects to:
    (a) Identify Indians with a potential for education or training in 
the health professions and encouraging and assisting them (1) To enroll 
in schools of medicine, osteopathy, dentistry, veterinary medicine, 
optometry, podiatry, pharmacy, public health, nursing, or allied health 
professions; or (2), if they are not qualified to enroll in any such 
school, to undertake such post-secondary education or training as may be 
required to qualify them for enrollment;
    (b) Publicize existing sources of financial aid available to Indians 
enrolled in any school referred to in paragraph (a)(1) of this section 
or who are undertaking training necessary to qualify them to enroll in 
any such school; or
    (c) Establish other programs which the Secretary determines will 
enhance and facilitate the enrollment of Indians, and the subsequent 
pursuit and completion by them of courses of study, in any school 
referred to in paragraph (a)(1) of this section.



Sec. 136.311  Eligibility.

    Any Indian tribe, tribal organization, urban Indian organization, 
Indian health organization or any public or other nonprofit private 
health or educational entity is eligible to apply for a health 
professions recruitment grant under this subdivision.



Sec. 136.312  Application.

    (a) Forms for applying for grants are governed by 45 CFR part 74, 
subpart N. \1\
---------------------------------------------------------------------------

    \1\ Applications and instructions may be obtained from the 
appropriate Indian Health Service Area or Program Office or by writing 
the Director, Indian Health Service, Room 5A-55, 5600 Fishers Lane, 
Rockville, MD 20857.
---------------------------------------------------------------------------

    (b) In addition to such other pertinent information as the Secretary 
may require, the application for a health professions recruitment grant 
shall contain the following:
    (1) A description of the legal status and organization of the 
applicant;
    (2) A description of the current and proposed participation of 
Indians (if any) in the applicant's organization.
    (3) A description of the target Indian population to be served by 
the proposed project and the relationship of the applicant to that 
population;
    (4) A narrative description of the nature, duration, purpose, need 
for and scope of the proposed project and of the manner in which the 
applicant intends to conduct the project including:
    (i) Specific measurable objectives for the proposed project;
    (ii) How the described objectives are consistent with the purposes 
of section 102 of the Act;
    (iii) The work and time schedules which will be used to accomplish 
each of the objectives;
    (iv) A description of the administrative, managerial, and 
organizational arrangements and the facilities and resources to be 
utilized to conduct the proposed project;
    (v) The name and qualifications of the project director or other 
individual responsible for the conduct of the project; the 
qualifications of the prinicipal staff carrying out the

[[Page 746]]

project; and a description of the manner in which the applicant's staff 
is or will be organized and supervised to carry out the proposed 
project;
    (5) An itemized budget for the budget period (normally 12 months) 
for which support is sought and justification of the amount of grant 
funds requested:
    (6) The intended financial participation, if any, of the applicant 
in the proposed project specifying the type of contributions such as 
cash or services, loans of full or part-time staff, equipment, space, 
materials or facilities or other contributions;
    (7) When the target population of a proposed project includes a 
particular Indian tribe or tribes, an official document in such form as 
is prescribed by the tribal governing body of each such tribe indicating 
that the tribe or tribes will cooperate with the applicant.
    (c) In the case of proposed projects for identification of Indians 
with a potential for education or training in the health professions, 
applications must include a method of assessing the potential of 
interested Indians for undertaking necessary education or training in 
the health professions. Proposed projects may include, but are not 
limited to, the following activities:
    (1) Identifying Indian elementary and secondary school students 
through observations, aptitude or other testing, academic performance, 
performance in special projects and activities, and other methods as may 
be designed or developed;
    (2) Identifying Indians in college or university programs, related 
employment, upward mobility programs or other areas of activity 
indicative of interest and potential;
    (3) Review of the upward mobility plans, skills, banks etc. of 
organizations employing Indians to identify individuals with appropriate 
career orientations, expression of interest, or recognized potential;
    (4) Conducting workshops, health career days, orientation projects 
or other activities to identify interested Indians at any age level;
    (5) Performing liaison activities with Indian professional 
organizations, Indian education programs (including adult education), 
Indian school boards, Indian parent, youth recreation or community 
groups, or other Indian special interest or activity groups;
    (6) Identifying those Indians with an interest and potential who 
cannot undertake compensatory education or training in the health 
professions because of financial need.
    (d) Proposed projects designed to encourage and assist Indians to 
enroll in health professions schools; or, if not qualified to enroll, to 
undertake postsecondary education or training required to qualify them 
for enrollment may include, but are not limited to, the following 
activities:
    (1) Providing technical assistance and counseling to encourage and 
assist Indians identified as having a potential for education or 
training in the health professions--
    (i) To enroll in health professions schools.
    (ii) To undertake any post-secondary education and training required 
to qualify them to enroll in health professions schools, and
    (iii) To obtain financial aid to enable them to enroll in health 
professions schools or undertake post-secondary education or training 
required to qualify them to enroll in such schools;
    (2) Conducting programs to (i) identify factors such as deficiencies 
in basic communication, research, academic subject matter (such as 
science, mathematics, etc.), or other skills which may prevent or 
discourage Indians from enrolling in health professions schools or 
undertaking the post-secondary education or training required to qualify 
them to enroll, and (ii) provide counseling and technical assistance to 
Indians to assist them in undertaking the necessary education, training 
or other activities to overcome such factors.
    (e) Proposed projects to publicize existing kinds of financial aid 
available to Indians enrolled in health professions schools or to 
Indians undertaking training necessary to qualify them to enroll in such 
schools may include, but are not limited to, the following activities:
    (1) Collecting information on available sources of financial aid and 
disseminating such information to Indian students, Indians, recruited 
under programs assisted by grants under this

[[Page 747]]

subdivision and to Indian tribes, tribal organizations, urban Indian 
organizations, Indian health organizations and other interested groups 
and communities throughout the United States;
    (2) Providing information on available sources of financial aid 
which can be utilized by programs and counselors assisting Indians to 
obtain financial aid.
    (f) Proposed projects for establishment of other programs which will 
enhance or facilitate enrollment of Indians in health professions 
schools and the subsequent pursuit and completion by them of courses of 
study in such schools may include, but are not limited to, the following 
activities:
    (1) Compilation and dissemination of information on--
    (i) Health professions education or training programs and the 
requirements for enrollment in such programs; and
    (ii) Post-secondary education or training curricula and programs 
designed to qualify persons for enrollment in health professions 
schools;
    (2) Developing and coordinating career orientation programs in local 
schools (including high schools) and colleges and universites;
    (3) Developing programs to enable Indians to gain exposure to the 
health professions such as arranging for (i) visits to health care 
facilities and programs and meetings or seminars with health 
professionals, (ii) part-time summer or rotating employment in health 
care facilities, programs, or offices of health professionals, (iii) 
volunteer programs, or (iv) other means of providing such exposure;
    (4) Developing programs which relate tribal culture and tradition, 
including native medicine, to careers in the health professions; and
    (5) Developing programs to make Indians aware of projected health 
manpower needs, expected employment opportunities in the health 
professions, and other factors in order to orient and motivate Indians 
to pursue careers in the health professions.

[42 FR 59646, Nov. 18, 1977, as amended at 50 FR 1855, Jan. 14, 1985]



Sec. 136.313  Evaluation and grant awards.

    (a) Within the limits of funds available for such purpose, the 
Secretary, acting through the Service, may award health professions 
recruitment grants to those eligible applicants whose proposed projects 
will in his judgment best promote the purposes of section 102 of the 
Act, taking into consideration:
    (1) The potential effectiveness of the proposed project in carrying 
out such purposes;
    (2) The capability of the applicant to successfully conduct the 
project;
    (3) The accessibility of the applicant to target Indian communities 
or tribes, including evidence of past or potential cooperation between 
the applicant and such communities or tribes;
    (4) The relationship of project objectives to known or anticipated 
Indian health manpower deficiencies;
    (5) The soundness of the fiscal plan for assuring effective 
utilization of grant funds;
    (6) The completeness of the application.
    (b) Preference shall be given to applicants in the following order 
or priority: (1) Indian tribes, (2) tribal organizations, (3) urban 
Indian organizations and other Indian health organizations, and (4) 
public and other nonprofit profit private health or educational 
entities.
    (c) The Notice of Grant Awards specifies how long the Secretary 
intends to support the project period without requiring the project to 
re-compete for funds. This period, called the project period, will 
usually be for one to two years. The total project period comprises the 
original project period and any extension. Generally the grant will be 
for a one year budget period, any subsequent award will also be a one 
year budget period. A grantee must submit a separate application for 
each subsequent year. Decisions regarding continuation awards and the 
funding level of such awards will be made after consideration of such 
factors as the grantee's progress and management practices, and the 
availability of funds. In all cases, awards require a determination by 
the Secretary that funding is in the best interest of the Federal 
Government.

[[Page 748]]

    (d) Neither the approval of any application nor the award of any 
grant commits or obligates the Federal Government in any way to make any 
additional, supplemental, continuation, or other award with respect to 
any approved application or portion of an approved application.

[42 FR 59646, Nov. 18, 1977, as amended at 50 FR 1855, Jan. 14, 1985]



Sec. 136.314  Use of funds.

    A grantee shall only spend funds it receives under this subpart 
according to the approved application and budget, the regulations of 
this subpart, the terms and conditions of the award, and the applicable 
cost principles prescribed in subpart Q of 45 CFR part 74.

[50 FR 1855, Jan. 14, 1985]



Sec. 136.315  Publication of list of grantees and projects.

    The Secretary acting through the Service shall publish annually in 
the Federal Register a list of organizations receiving grants under this 
subdivision including for each grantee:
    (a) The organization's name and address;
    (b) The amount of the grant;
    (c) A summary of the project's purposes and its geographic location.



Sec. 136.316  Other HHS regulations that apply.

    Several other regulations apply to grants under this subdivision. 
These include but are not limited to:

42 CFR part 50, subpart D, Public Health Service grant appeals procedure
42 CFR part 16, Procedures of the Departmental Grant Appeals Board
45 CFR part 74, Administration of grants
45 CFR part 75, Informal grant appeals procedures
45 CFR part 84, Nondiscrimination on the basis of handicap in programs 
and activities receiving or benefiting from Federal financial assistance
45 CFR part 86, Nondiscrimination on the basis of sex in education 
programs and activities receiving or benefiting from Federal financial 
assistance
45 CFR part 91, Nondiscrimination on the basis of age in HHS programs or 
activities receiving Federal financial assistance

[50 FR 1855, Jan. 14, 1985]

Subdivision J-3--Health Professions Preparatory Scholarship Program for 
                                 Indians



Sec. 136.320  Preparatory scholarship grants.

    Scholarship grants may be awarded under this subdivision and section 
103 of the act for the period (not to exceed two academic years) 
necessary to complete a recipient's compensatory preprofessional 
education to enable the recipient to qualify for enrollment or re-
enrollment in a health professions school. Examples of individuals 
eligible for such grants are the individual who:
    (a) Has completed high school equivalency and needs compensatory 
preprofessional education to enroll in a health professions school;
    (b) Has a baccalaureate degree and needs compensatory 
preprofessional education to qualify for enrollment in a health 
professions school; or
    (c) Has been enrolled in a health professions school but is no 
longer so enrolled and needs preprofessional education to qualify for 
readmission to a health professions school.



Sec. 136.321  Eligibility.

    To be eligible for a preparatory scholarship grant under this 
subdivision an applicant must:
    (a) Be an Indian;
    (b) Have successfully completed high school education or high school 
equivalency;
    (c) Have demonstrated to the satisfaction of the Secretary the 
desire and capability to successfully complete courses of study in a 
health professions school;
    (d) Be accepted for enrollment in or be enrolled in any compensatory 
preprofessional education course or curriculum meeting the criteria in 
Sec. 136.320 of this subdivision; and
    (e) Be a citizen of the United States.

[42 FR 59646, Nov. 18, 1977. Redesignated and amended at 67 FR 35342, 
May 17, 2002]



Sec. 136.322  Application and selection.

    (a) An application for a preparatory scholarship grant under this 
subdivision shall be submitted in such form

[[Page 749]]

and at such time as the Secretary acting through the Service may 
prescribe. \1\ However, an application must indicate:
---------------------------------------------------------------------------

    \1\ Applications and instructions may be obtained from the 
appropriate Indian Health Service Area or Program Office.
---------------------------------------------------------------------------

    (1) The health profession which the applicant wishes to enter, and
    (2) Whether the applicant intends to provide health services to 
Indians upon completion of health professions education or training by 
serving as described in Sec. 136.332 or otherwise as indicated on the 
application.
    (b) Within the limits of funds available for the purpose, the 
Secretary, acting through the Service, shall make scholarship grant 
awards for a period not to exceed two academic years of an individual's 
compensatory preprofessional education to eligible applicants taking 
into consideration:
    (1) Academic performance;
    (2) Work experience;
    (3) Faculty recommendations;
    (4) Stated reasons for asking for the scholarship; and
    (5) The relative needs of the Service and Indian health 
organizations for persons in specific health professions.

[42 FR 59646, Nov. 18, 1977, as amended at 49 FR 7381, Feb. 29, 1984. 
Redesignated and amended at 67 FR 35342, May 17, 2002]]



Sec. 136.323  Scholarship and tuition.

    (a) Scholarship grant awards under this subdivision shall consist 
of:
    (1) A stipend of $400 per month adjusted in accordance with 
paragraph (c) of this section; and
    (2) An amount determined by the Secretary for transportation, 
tuition, fees, books, laboratory expenses, and other necessary 
educational expenses.
    (b) The portion of the scholarship for the costs of tuition and fees 
as indicated in the grant award will be paid directly to the school upon 
receipt of an invoice from the school. The stipend and remainder of the 
scholarship grant award will be paid monthly to the grantee under the 
conditions specified in the grant award.
    (c) The amount of the monthly stipend specified in paragraph (a)(1) 
of this section shall be adjusted by the Secretary for each academic 
year ending in a fiscal year beginning after September 30, 1978, by an 
amount (rounded down to the next lowest multiple of $1) equal to the 
amount of such stipend multiplied by the overall percentage (as set 
forth in the report transmitted to the Congress under section 5305 of 
title 5, United States Code) of the adjustment in the rates of pay under 
the General Schedule made effective in the fiscal year in which such 
academic year ends.

[42 FR 59646, Nov. 18, 1977, as amended at 49 FR 7381, Feb. 29, 1984]



Sec. 136.324  Availability of list of recipients.

    The Indian Health Service will provide to any persons requesting it 
a list of the recipients of scholarship grants under this subdivision, 
including the school attended and tribal affiliation of each recipient.

[49 FR 7381, Feb. 29, 1984]

           Subdivision J-4--Indian Health Scholarship Program



Sec. 136.330  Indian health scholarships.

    Indian Health Scholarships will be awarded by the Secretary pursuant 
to 338A through 339G of the Public Health Service Act, and such 
implementing regulations as may be promulgated by the Secretary except 
as set out in this subdivision for the purpose of providing scholarships 
to Indian and other students at health professions schools in order to 
obtain health professionals to serve Indians.

[42 FR 59646, Nov. 18, 1977, as amended at 50 FR 1855, Jan. 14, 1985]



Sec. 136.331  Selection.

    (a) The Secretary, acting through the Service, shall determine the 
individuals who receive Indian Health Scholarships.
    (b) Priority shall be given to applicants who are Indians.



Sec. 136.332  Service obligation.

    The service obligation provided in section 338G(b)(2) of the Public 
Health Service Act shall be met by the recipient of an Indian Health 
Scholarship by service in:
    (a) The Indian Health Service.

[[Page 750]]

    (b) An urban Indian organization assisted under Subdivision J-6.
    (c) In private practice of his or her profession if, the practice 
(1) is situated in a health manpower shortage area, designated under 
section 332 of the Public Health Service Act and (2) addresses the 
health care needs of a substantial number of Indians as determined by 
the Secretary in accordance with guidelines of the Service.

[42 FR 59646, Nov. 18, 1977, as amended at 50 FR 1855, Jan. 14, 1985]



Sec. 136.333  Distribution of scholarships.

    The Secretary, acting through the Service, shall determine the 
distribution of Indian Health Scholarships among the health professions 
based upon the relative needs of Indians for additional service in 
specific health professions. In making that determination the needs of 
the Service will be given priority consideration. The following factors 
will also be considered:
    (a) The professional goals of recipients of scholarships under 
section 103 of the Indian Health Care Improvement Act; and
    (b) The professional areas of study of Indian applicants.



Sec. 136.334  Publication of a list of recipients.

    The Secretary, acting through the Service, will publish annually in 
the Federal Register a list of recipients of Indian Health Scholarships, 
including the name of each recipient, tribal affiliation if applicable, 
and school.

            Subdivision J-5--Continuing Education Allowances



Sec. 136.340  Provision of continuing education allowances.

    In order to encourage physicians, dentists and other health 
professionals to join or continue in the Service and to provide their 
services in the rural and remote areas where a significant portion of 
the Indian people reside, the Secretary, acting through the Service, may 
provide allowances to health professionals, employed in the Service in 
order to enable them to leave their duty stations for not to exceed 480 
hours of professional consultation and refresher training courses in any 
one year.

       Subdivision J-6--Contracts With Urban Indian Organizations



Sec. 136.350  Contracts with Urban Indian organizations.

    (a) The Secretary, acting through the Service, to the extent that 
funds are available for the purpose, shall contract with urban Indian 
organizations selected under Sec. 36.351 of this subdivision to carry 
out the following activities in the urban centers where such 
organizations are situated:
    (1) Determine the population of urban Indians which are or could be 
recipients of health referral or care services;
    (2) Identify all public and private health service resources within 
the urban center in which the organization is situated which are or may 
be available to urban Indians;
    (3) Assist such resources in providing service to such urban 
Indians;
    (4) Assist such urban Indians in becoming familiar with and 
utilizing such resources;
    (5) Provide basic health education to such urban Indians;
    (6) Establish and implement manpower training programs to accomplish 
the referral and education tasks set forth in paragraphs (a)(3) through 
(5) of this section;
    (7) Identify gaps between unmet health needs of urban Indians and 
the resources available to meet such needs;
    (8) Make recommendations to the Secretary and Federal, State, local, 
and other resource agencies on methods of improving health service 
programs to meet the needs of urban Indians; and
    (9) Prove or contract for health care services to urban Indians 
where local health delivery resources are not available, not accessible, 
or not acceptable to the urban Indians to be served.
    (b) Contracts with urban Indian organizations pursuant to this title 
shall be in accordance with all Federal contracting laws and regulations 
except that, in the discretion of the Secretary, such contracts may be 
negotiated without advertising and need not conform to the provisions of 
the Act of August 24, 1935 as amended, (The Miller Act, 40

[[Page 751]]

U.S.C. 270a et seq. which is concerned with bonding requirements).
    (c) Payments under contracts may be made in advance or by way of 
reimbursement and in such installments and on such conditions as the 
Secretary deems necessary to carry out the purposes of title V of the 
Act.
    (d) Notwithstanding any provision of law to the contrary, the 
Secretary may, at the request or consent of an urban Indian 
organization, revise or amend any contract made by him with such 
organization pursuant to this subdivision as necessary to carry out the 
purposes of title V of this Act: Provided, however, that whenever an 
urban Indian organization requests retrocession of the Secretary for any 
such contract, retrocession shall become effective upon a date specified 
by the Secretary not more than one hundred and twenty days from the date 
of the request by the organization or at such later date as may be 
mutually agreed to by the Secretary and the organization.
    (e) In connection with any contract made pursuant to this 
subdivision, the Secretary may permit an urban Indian organization to 
utilize, in carrying out such contract, existing facilities owned by the 
Federal Government within his jurisdiction under such terms and 
conditions as may be agreed upon for their use and maintenance.



Sec. 136.351  Application and selection.

    (a) Proposals for contracts under this subdivision shall be 
submitted in such form and manner and at such time as the Secretary 
acting through the Service may prescribe.
    (b) The Secretary, acting through the Service shall select urban 
Indian organizations with which to contract under this subdivision whose 
proposals will in his judgment best promote the purposes of title V of 
the Act taking into consideration the following factors:
    (1) The extent of the unmet health care needs of the urban Indians 
in the urban center involved determined on the basis of the latest 
available statistics on disease incidence and prevalence, life 
expectancy, infant mortality, dental needs, housing conditions, family 
income, unemployment statistics, etc.
    (2) The urban Indian population which is to receive assistance in 
the following order of priority:
    (i) 9,000 or more;
    (ii) 4,500 to 9,000;
    (iii) 3,000 to 4,500;
    (iv) 1,000 to 3,000;
    (v) Under 1,000.
    (3) The relative accessibility which the urban Indian population to 
be served has to health care services, in the urban center. Factors to 
be considered in determining relative accessibility include:
    (i) Cultural barriers;
    (ii) Discrimination against Indians;
    (iii) Inability to pay for health care;
    (iv) Lack of facilities which provide free care to indigent persons;
    (v) Lack of state or local health programs;
    (vi) Technical barriers created by State and local health agencies;
    (vii) Availability of transportation to health care services;
    (viii) Distance between Indian residences and the nearest health 
care facility.
    (4) The extent to which required activities under Sec. 136.350(a) 
of this subdivision would duplicate any previous or current public or 
private health services projects in the urban center funded by another 
source. Factors to be considered in determining duplication include:
    (i) Urban Indian utilization of existing health services funded by 
other sources;
    (ii) Urban Indian utilization of existing health services delivered 
by an urban Indian organization funded by other sources.
    (5) The appropriateness and likely effectiveness of the activities 
required in Sec. 136.350(a) of this subdivision in the urban center 
involved.
    (6) The capability of the applicant urban Indian organization to 
perform satisfactorily the activities required in Sec. 136.350(a) of 
this subdivision and to contract with the Secretary.
    (7) The extent of existing or likely future participation in the 
activities required in Sec. 136.350(a) of this subdivision by 
appropriate health and health related Federal, State, local, and other 
resource agencies.

[[Page 752]]

    (8) Whether the city has an existing urban Indian health program.
    (9) The applicant organization's record of performance, if any, in 
regard to any of the activities required in Sec. 136.350(a) of this 
subdivision.
    (10) Letters demonstrating local support for the applicant 
organization from both the Indian and non-Indian communities in the 
urban center involved.

[42 FR 59646, Nov. 18, 1977; 42 FR 61861, Dec. 7, 1977. Redesignated and 
amended at 67 FR 35342, May 17, 2002]



Sec. 136.352  Fair and uniform provision of services.

    Contracts with urban Indian organizations under this subdivision 
shall incorporate the following clause:
    The Contractor agrees, consistent with medical need, and the 
efficient provision of medical services to make no discriminatory 
distinctions against Indian patients or beneficiaries of this contract 
which are inconsistent with the fair and uniform provision of services.



Sec. 136.353  Reports and records.

    For each fiscal year during which an urban Indian organization 
receives or expends funds pursuant to a contract under this title, such 
organization shall submit to the Secretary a report including 
information gathered pursuant to Sec. 136.350(a) (7) and (8) of this 
subdivision, information on activities conducted by the organization 
pursuant to the contract, an accounting of the amounts and purposes for 
which Federal funds were expended, and such other information as the 
Secretary may request. The reports and records of the urban Indian 
organization with respect to such contract shall be subject to audit by 
the Secretary and the Comptroller General of the United States.

[42 FR 59646, Nov. 18, 1977. Redesignated and amended at 67 FR 35342, 
May 17, 2002]

               Subdivision J-7--Leases With Indian Tribes



Sec. 136.360  Leases with Indian tribes.

    (a) Any land or facilities otherwise authorized to be acquired, 
constructed, or leased to carry out the purposes of the Act may be 
leased or subleased from Indian tribes for periods not in excess of 
twenty years.
    (b) Leases entered into pursuant to paragraph (a) shall be subject 
to the requirements of section 322 of the Economy Act (40 U.S.C. 278a), 
which limits expenditures for rent and alterations, improvements and 
repairs on leased buildings.

Subdivision J-8--Health Professions Pregraduate Scholarship Program for 
                                 Indians

    Source: 49 FR 7381, Feb. 29, 1984, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.



Sec. 136.370  Pregraduate scholarship grants.

    (a) Pregraduate scholarship grants may be awarded under this 
subdivision and section 103 of the Act for the period (not to exceed 
four academic years) necessary to complete a recipient's pregraduate 
education leading to a baccalaureate degree in a premedicine, 
preoptometry, predentistry, preosteopathy, preveterinary medicine, or 
prepodiatry curriculum or equivalent.
    (b) Students enrolled in accredited health professional or allied 
health professional programs which lead to eligibility for licensure, 
certification, registration or other types of credentials required for 
the practice of a health or allied health profession are ineligible for 
scholarships under this subdivision. Examples of health professions and 
allied health professions that will not be considered for funding 
include but are not limited to: nursing, audiology, medical technology, 
dental hygiene, dental technicians, engineering, radiologic technology, 
dietitian, nutritionist, social work, health education, physical 
therapy, occupational therapy and pharmacy. Scholarships for students in 
these programs are provided under Subdivision J-4 of this subpart.



Sec. 136.371  Eligibility.

    To be eligible for a pregraduate scholarship grant under this 
subdivison an applicant must:
    (a) Be an Indian;

[[Page 753]]

    (b) Have successfully completed high school education or high school 
equivalency;
    (c) Have demonstrated to the satisfaction of the Secretary the 
desire and capability to successfully complete courses of study in a 
pregraduate education program meeting the criteria in Sec. 136.370;
    (d) Be accepted for enrollment in or be enrolled in any accredited 
pregraduate education curriculum meeting the criteria in Sec. 136.370 
of this subdivision; and
    (e) Be a citizen of the United States.

[49 FR 7381, Feb. 29, 1984. Redesignated and amended at 67 FR 35342, May 
17, 2002]



Sec. 136.372  Application and selection.

    (a) An application for a pregraduate scholarship grant under this 
subdivision shall be submitted in such form and at such time as the 
Secretary may prescribe. However, an application must indicate:
    (1) The pregraduate program in which the applicant is or wishes to 
enter, and
    (2) Whether the applicant intends to provide health services to 
Indians upon completion of health professions education or training by 
serving as described in Sec. 136.332 or otherwise as indicated on the 
application.
    (b) Within the limits of available funds, the Director, IHS, shall 
make pregraduate scholarship grant awards for a period not to exceed 
four academic years of an individual's pregraduate education to eligible 
applicants taking into consideration:
    (1) Academic performance;
    (2) Work experience;
    (3) Faculty or employer recommendation;
    (4) Stated reasons for asking for the scholarship; and
    (5) The relative needs of the IHS and Indian health organizations 
for persons in specific health professions.

(Approved by the Office of Management and Budget under control number 
0915-0080)

[49 FR 7381, Feb. 29, 1984. Redesignated and amended at 67 FR 35342, May 
17, 2002]



Sec. 136.373  Scholarship and tuition.

    (a) Scholarship grant awards under this subdivision shall consist 
of:
    (1) A stipend of $400 per month adjusted in accordance with 
paragraph (c) of this section; and
    (2) An amount determined by the Secretary for transportation, 
tuition, fees, books, laboratory expenses and other necessary 
educational expenses.
    (b) The portion of the scholarship for the costs of tuition and fees 
as indicated in the grant award will be paid directly to the school upon 
receipt of an invoice from the school. The stipend and remainder of the 
scholarship grant award will be paid monthly to the grantee under the 
conditions specified in the grant award.
    (c) The amount of the monthly stipend specified in paragraph (a)(1) 
of this section shall be adjusted by the Secretary for each academic 
year ending in a fiscal year beginning after September 30, 1978, by an 
amount (rounded down to the next lowest multiple of $1) equal to the 
amount of such stipend multiplied by the overall percentage (as set 
forth in the report transmitted to the Congress under section 5305 of 
title 5, United States Code) of the adjustment in the rates of pay under 
the General Schedule made effective in the fiscal year in which such 
academic year ends.



Sec. 136.374  Availability of list of recipients.

    The IHS will provide to any person requesting it a list of the 
recipients of scholarship grants under this subdivision, including the 
school attended and tribal affiliation of each recipient.



    Subpart K_Indian Child Protection and Family Violence Prevention

    Source: 67 FR 59467, Sept. 23, 2002, unless otherwise noted.



Sec. 136.401  Purpose.

    (a) The purpose of the regulations in this subpart is to establish 
minimum standards for Federal employees working in the Indian Health 
Service (IHS), including standards of character to ensure that 
individuals having regular contact with or control over Indian children 
have not been convicted of certain types of crimes as mandated by 
section 408 of the Indian Child Protection and Family Violence 
Prevention

[[Page 754]]

Act (the ``Act''), Public Law (Pub. L.) 101-630, 104 Stat. 4544, 25 
U.S.C. 3201-3211, as amended by section 814 of the Native American Laws 
Technical Corrections Act of 2000. In order to implement these minimum 
standards of character, these regulations also address:
    (1) The efficiency standards to ensure that individuals are 
qualified for the positions they hold or seek, as mandated by Section 
408 of the Act.
    (2) Fitness standards to ensure child care service employees are fit 
to have responsibility for the safety and well-being of children, as 
mandated by Section 231 of the Crime Control Act of 1990, Pub. L. 101-
647, 42 U.S.C. 13041.
    (3) Suitability standards to ensure that individuals have not acted 
in a manner that places others at risk or raised questions about their 
trustworthiness, as mandated by 5 CFR part 731.
    (b) The Act requires that Tribes or Tribal organizations who receive 
funds under the Indian Self-Determination and Education Assistance Act 
(ISDEA), Pub. L. 93-638, employ individuals in positions involving 
regular contact with or control over Indian children only if the 
individuals meet standards of character no less stringent than those 
prescribed under these regulations. Thus, the minimum standards of 
character as defined in these regulations will become the basis for 
Tribes or Tribal organizations to use when developing their own minimum 
standards of character that cannot be less stringent than as prescribed 
herein.



Sec. 136.402  Policy.

    In enacting the Indian Child Protection and Family Violence 
Prevention Act, (the ``Act'') the Congress recognized there is no 
resource more vital to the continued existence and integrity of Indian 
Tribes than their children and that the United States has a direct 
interest, as trustee, in protecting Indian children who are members of, 
or are eligible for membership in, an Indian Tribe. The minimum 
standards of character as prescribed by the regulations in this subpart 
are intended to ensure that Indian children are protected.



Sec. 136.403  Definitions.

    Crimes against Persons means a crime that has as an element the use, 
attempted use, or threatened use of physical force or other abuse of a 
person and includes, but is not limited to, homicide; assault; 
kidnapping; false imprisonment; reckless endangerment; robbery; rape; 
sexual assault, molestation, exploitation, contact, or prostitution; and 
other sexual offenses. In determining whether a crime falls within this 
category, the applicable Federal, State, or Tribal law under which the 
individual was convicted or pleaded guilty or nolo contendere shall be 
controlling.
    Crimes of violence means a crime that has as an element the use, 
attempted use, or threatened use of physical force against the person or 
property of another, or any other crime that is a felony and that, by 
its nature, involves substantial risk that physical force against the 
person or property of another may be used in the course of committing 
the crime. In determining whether a crime falls within this category, 
reference may be made to the applicable Federal, State, or Tribal law 
under which the individual was convicted or pleaded guilty or nolo 
contendere.
    Indian means any individual who is a member of an Indian Tribe, as 
defined below.
    Indian child means any unmarried person under the age of eighteen 
who is either a member of an Indian Tribe or eligible for membership in 
an Indian Tribe and is the biological child of a member of an Indian 
Tribe.
    Indian Tribe means any Indian Tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq., which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    Individuals means persons with duties and responsibilities that 
involve regular contact with or control over Indian children and 
includes but is not limited to the following:

[[Page 755]]

    (a) Persons in the competitive or excepted service (including 
temporary employment), the Commissioned Corps, or the Senior Executive 
Service in the IHS;
    (b) Persons who perform service for or under the supervision of the 
IHS while being permanently assigned to another IHS office or to another 
organization, such as a Federal agency, State, or Tribe;
    (c) Persons who volunteer to perform services in IHS facilities;
    (d) Persons who contract with the IHS to perform services in IHS 
facilities.
    Must or shall indicates a mandatory or imperative act or 
requirement.
    Offenses against children means any felonious or misdemeanor crime 
under Federal, State, or Tribal law committed against a victim that has 
not attained the age of eighteen years. In determining whether a crime 
falls within this category, the applicable Federal, State, or Tribal law 
under which the individual was convicted or pleaded guilty or nolo 
contendere shall be controlling.
    Regular contact with or control over an Indian child means 
responsibility for an Indian child(ren) within the scope of the 
individual's duties and responsibilities or contact with an Indian 
child(ren) on a recurring and foreseeable basis.
    Tribal Organization as defined in the ISDEA, means the recognized 
governing body of any Indian Tribe or any legally established 
organization of Indians which is controlled, sanctioned, or chartered by 
such governing body or which is democratically elected by the adult 
members of the Indian community to be served by such organization and 
which includes the maximum participation of Indians in all phases of its 
activities.



Sec. 136.404  What does the Indian Child Protection and Family Violence 

Prevention Act require of the IHS and Indian Tribes or Tribal organizations 

receiving funds under the ISDEA?

    (a) The IHS must compile a list of all authorized positions with 
duties and responsibilities that involve regular contact with or control 
over Indian children; investigate the character of each individual who 
is employed or is being considered for employment in such a position; 
and prescribe minimum standards of character that each individual must 
meet to be appointed or employed in such positions.
    (b) All Indian Tribes or Tribal organizations receiving funds under 
the authority of the ISDEA must identify those positions that permit 
regular contact with or control over Indian children; conduct an 
investigation of the character of each individual who is employed or is 
being considered for employment in a position that involves regular 
contact with or control over Indian children; and employ only 
individuals who meet standards of character that are no less stringent 
than those prescribed by regulations in this subpart.



Sec. 136.405  What are the minimum standards of character for individuals 

placed in, or applying for, a position that involves regular contact with or 

control over Indian children?

    The minimum standards of character shall mean a benchmark of moral, 
ethical, and emotional strengths established by character traits and 
past conduct to ensure that the individual is competent to complete his/
her job without harm to Indian children. In order to protect Indian 
children, the IHS has established minimum standards of character 
requiring completion of a satisfactory background investigation that 
ensures that no individuals who have been found guilty of, or entered a 
plea of nolo contendere or guilty to, any felonious offense or any of 
two or more misdemeanor offenses under Federal, State, or Tribal law 
involving crimes of violence; sexual assault, molestation, exploitation, 
contact, or prostitution; crimes against persons; or offenses committed 
against children, are placed in positions involving regular contact with 
or control over Indian children.



Sec. 136.406  Under what circumstances will the minimum standards of character 

be considered to be met?

    The minimum standards of character shall be considered met only 
after the individual has been the subject of a satisfactory background 
investigation.

[[Page 756]]

The background investigation shall include a review of:
    (a) The individual's trustworthiness, through inquiries with the 
individual's references and places of employment and education;
    (b) A criminal history background check, which includes a 
fingerprint check through the Criminal Justice Information Services 
Division of the Federal Bureau of Investigation (FBI), under procedures 
approved by the FBI, and inquiries to State and Tribal law enforcement 
agencies for the previous five years of residence listed on the 
individual's application; and
    (c) A determination as to whether the individual has been found 
guilty of or entered a plea of nolo contendere or guilty to any 
felonious offense or any of two or more misdemeanor offenses under 
Federal, State, or Tribal law involving crimes of violence; sexual 
assault, molestation, exploitation, contact, or prostitution; crimes 
against persons; or offenses committed against children.



Sec. 136.407  Under what circumstances should a conviction, or plea of nolo 

contendere or guilty to, be considered if there has been a pardon, 

expungement, set aside, or other court order of the conviction or plea?

    All convictions or pleas of nolo contendere or guilty to should be 
considered in making a determination unless a pardon, expungement, set 
aside or other court order reaches the plea of guilty, plea of nolo 
contendere, or the finding of guilt.



Sec. 136.408  What are other factors, in addition to the minimum standards of 

character, that may be considered in determining placement of an individual in 

a position that involves regular contact with or control over Indian children?

    (a) All Federal employees are subject to suitability criteria 
contained in 5 CFR part 731 as a condition of employment.
    (b) Section 231 of the Crime Control Act of 1990, Pub. L. 101-647, 
42 U.S.C. 13041, provides that an individual may be disqualified from 
consideration or continuing employment if such individual has been 
convicted of a sex crime, an offense involving a child victim or a drug 
felony, or any other crime if such conviction bears on an individual's 
fitness to have responsibility for the safety and well-being of 
children.
    (c) Tribes or Tribal organizations may but are not required to apply 
additional criteria in determining whether an individual is suitable for 
a position with duties and responsibilities that involve regular contact 
with or control over Indian children. Any additional suitability 
criteria established by Tribes or Tribal organizations beyond the 
minimum standards of character described in Sec. 136.405 and Sec. 
136.406 would be determined by each individual Tribe or Tribal 
organization in accordance with its own personnel policies and 
procedures.



Sec. 136.409  What positions require a background investigation and 

determination of eligibility for employment or retention?

    (a) All positions that allow an individual regular contact with or 
control over Indian children are subject to a background investigation 
and determination of eligibility for employment. The IHS has compiled a 
list of positions within the agency in which the duties and 
responsibilities could involve regular contact with or control over 
Indian children. The list will be periodically updated and made 
available at all IHS Personnel Offices upon request. Positions should be 
reviewed on a case-by-case basis to determine whether the individual in 
that position has regular contact with or control over Indian children.
    (b) Tribes and Tribal organizations may use the list compiled by the 
IHS or develop their own procedures to determine within their program 
those positions that involve regular contact with or control over Indian 
children.



Sec. 136.410  Who conducts the background investigation and prepares 

determinations of eligibility for employment?

    (a) The IHS must use the Office of Personnel Management (OPM) to 
conduct background investigations for Federal employees. The IHS must 
designate qualified security personnel to

[[Page 757]]

adjudicate the results of background investigations.
    (b) Indian Tribes and Tribal organizations may conduct their own 
background investigations, contract with private firms, or may request 
that a Federal or State agency conduct investigations. (FBI criminal 
history record information, however, may only be received or evaluated 
by governmental agencies, including Tribes or Tribal organizations as 
defined in these regulations at Sec. 136.403, and may not be 
disseminated to private entities.)



Sec. 136.411  Are the requirements for IHS adjudication different from the 

requirements for Indian Tribes and Tribal organizations?

    Yes, in conducting background investigations and adjudicating 
eligibility for employment in Tribal positions that allow regular 
contact with or control over Indian children, Indian Tribes or Tribal 
organizations may, but are not required to, adopt portions of the rules 
in this subpart that are specifically applicable to employment with the 
IHS.



Sec. 136.412  What questions must the IHS ask as part of the background 

investigation?

    (a) Applications for employment with the IHS must include the 
following questions:
    (1) Has the individual been arrested or charged with a crime 
involving a child? If yes, the individual must provide the date, 
explanation of the violation, disposition of the arrest or charge, place 
of occurrence, and the name and address of the police department or 
court involved.
    (2) Has the individual ever been found guilty of, or entered a plea 
of nolo contendere or guilty to, any felonious or misdemeanor offense, 
under Federal, State, or Tribal law involving crimes of violence; sexual 
assault, molestation, exploitation, contact, or prostitution; crimes 
against persons; or offenses committed against children? If yes, the 
individual must provide an explanation of the violation, place of 
occurrence, date and disposition of the court proceeding, and the name 
and address of the police department or court involved.
    (b) The IHS must require that the individual sign, under penalty of 
perjury, a statement verifying the truth of all information provided in 
the employment application and acknowledging that knowingly falsifying 
or concealing a material fact is a felony that may result in fines up to 
$10,000 or five years imprisonment, or both.
    (c) The IHS must inform the individual that a criminal history 
record check is a condition of employment and require the individual to 
consent in writing to a criminal history record check.



Sec. 136.413  What protections must the IHS and Tribes or Tribal organizations 

provide to individuals undergoing a background investigation?

    (a) The IHS must comply with all policies, procedures, criteria, and 
guidance contained in other appropriate guidelines, such as the OPM 
policies, procedures, criteria, and guidance. Questions asked in Sec. 
136.412 will be added as an addendum to item 16 of the OPM 
Optional Form 306, ``Declaration for Federal Employment.'' The 
information is collected as part of the OPM Optional Form 306 and is 
safeguarded in accordance with Privacy Act provisions.
    (b) Indian Tribes and Tribal organizations must comply with the 
privacy requirements of the Federal, State, or other Tribal agency 
providing the background investigations. Indian Tribes and Tribal 
organizations may establish their own procedures that safeguard 
information derived from background investigations.



Sec. 136.414  How does the IHS determine eligibility for placement or 

retention of individuals in positions involving regular contact with Indian 

children?

    (a) Adjudication is the process IHS uses to determine eligibility 
for placement or retention of individuals in positions involving regular 
contact with Indian children. The adjudication process protects the 
interests of the employer and the right of applicants and employees. 
Adjudication requires uniform evaluation to ensure fair and consistent 
judgment.
    (b) Each case is judged on its own merits. All available 
information, both

[[Page 758]]

favorable and unfavorable, should be considered and assessed in terms of 
accuracy, completeness, relevance, seriousness, overall significance, 
and how similar cases have been handled in the past.
    (c) The adjudicating official who conducts the adjudication must 
first have been the subject of a favorable background investigation.
    (d) Each adjudicating official must be thoroughly familiar with all 
laws, regulations, and criteria involved in making a determination for 
eligibility.
    (e) The adjudicating official must review the background 
investigation to determine the character, reputation, and 
trustworthiness of the individual. At a minimum, the background 
investigation must:
    (1) Review each security investigation form and employment 
application and compare the information provided.
    (2) Review the results of written record searches requested from 
local law enforcement agencies, former employers, former supervisors, 
employment references, and schools.
    (3) Review the results of the fingerprint charts maintained by the 
FBI or other law enforcement information maintained by other agencies.
    (4) Review any other information obtained through a background 
investigation, including the results of searches by State human services 
agencies, the OPM National Agency Check and Inquiries, the OPM Security/
Suitability Investigations Index, and the Defense Clearance and 
Investigations Index.
    (5) Determine whether the individual has been found guilty of, or 
entered a plea of nolo contendere or guilty to, any felonious offense, 
or any of two or more misdemeanor offenses under Federal, State, or 
Tribal law, involving crimes of violence; sexual assault, molestation, 
exploitation, contact, or prostitution; crimes against persons; or 
offenses committed against children.
    (f) After an opportunity has been afforded the individual to 
respond, pursuant to Sec. 136.415, and it is adjudicated that the 
individual has been found guilty of or entered a plea of nolo contendere 
or guilty to an enumerated offense under paragraph (e)(5) of this 
section, that individual shall not be placed or retained in a position 
involving regular contact with or control over Indian children.
    (g) For individuals who have been determined to be ineligible for 
employment in positions having regular contact with or control over 
Indian children, the IHS may use Federal adjudicative standards to 
certify that an individual is suitable for employment in a position, if 
available, that does not involve regular contact with or control over 
Indian children. The adjudicating official must determine that the 
individual's prior conduct will not interfere with the performance of 
duties and will not create a potential risk to the safety and well-being 
of any Indian children after consideration of the following factors:
    (1) The nature and seriousness of the conduct in question.
    (2) The recency and circumstances surrounding the conduct in 
question.
    (3) The age of the individual at the time of the incident.
    (4) Societal conditions that may have contributed to the nature of 
the conduct.
    (5) The probability that the individual will continue the type of 
behavior in question.
    (6) The individual's commitment to rehabilitation and a change in 
the behavior in question.
    (7) The degree of public trust and the possibility the public would 
be placed at risk if the individual is appointed to the position.



Sec. 136.415  What rights does an individual have during this process?

    (a) The individual must be provided an opportunity to explain, deny, 
or refute unfavorable and incorrect information gathered in an 
investigation, before the adjudication is final. He/she should receive a 
written summary of all derogatory information and be informed of the 
process for explaining, denying, or refuting unfavorable information.
    (b) The adjudicating officials must not release the actual 
background investigative report to an individual. However, they may 
issue a written summary of the derogatory information.

[[Page 759]]

    (c) The individual who is the subject of a background investigation 
may request, to the extent permissible by law, a copy of the reports 
from the originating (Federal, State, or other Tribal) agency and 
challenge the accuracy and completeness of any information maintained by 
that agency.
    (d) The results of an investigation cannot be used for any purpose 
other than to determine eligibility for employment in a position that 
involves regular contact with or control over Indian children.
    (e) Investigative reports contain information of a highly personal 
nature and must be maintained confidentially and secured in locked 
files. Investigative reports must be seen only by those officials who, 
in performing their official duties, need to know the information 
contained in the report.



Sec. 136.416  When should the IHS deny employment or dismiss an employee?

    The IHS must deny employment to an individual or dismiss an 
employee, when the duties and responsibilities of the position the 
individual person would hold or holds involve regular contact with or 
control over Indian children, and it has been adjudicated, pursuant to 
Sec. 136.414 and Sec. 136.415, that the individual has been found 
guilty of, or entered a plea of guilty or nolo contendere to, any 
felonious offense, or any of two or more misdemeanor offenses, under 
Federal, State or Tribal law involving a crime of violence; sexual 
assault, molestation, exploitation, contact, or prostitution; crimes 
against persons; or offenses committed against children. The IHS has the 
discretion to place such an individual in a position, if available, that 
does not involve regular contact with or control over Indian children, 
if a determination has been made that such placement would not put 
Indian children at risk and the individual would be able to perform the 
duties and responsibilities of this position.



Sec. 136.417  May the IHS hire individuals pending completion of a background 

investigation?

    Pursuant to section 231 of the Crime Control Act of 1990, Pub. L. 
101-647, 42 U.S.C. 13041, as amended by Pub. L. 102-190, the IHS may 
hire provisionally individuals as defined in these regulations, prior to 
the completion of a background investigation if, at all times prior to 
receipt of the background investigation during which children are in the 
care of the individual, the individual is within the sight and under the 
supervision of a staff person and a satisfactory background 
investigation has been completed on that staff person.



Sec. 136.418  What should the IHS do if an individual has been charged with an 

offense but the charge is pending or no disposition has been made by a court?

    (a) The IHS may deny the applicant employment until the charge has 
been resolved.
    (b) The IHS may deny the employee any on-the-job contact with 
children until the charge is resolved.
    (c) The IHS may detail or reassign the employee to other duties that 
do not involve regular contact with children.
    (d) The IHS may place the employee on indefinite suspension, in 
accordance with statutory and regulatory requirements, until the court 
has disposed of the charge.



PART 136a_INDIAN HEALTH--Table of Contents




                            Subpart A_Purpose

Sec.
136a.1 Purpose of the regulations.
136a.2 Administrative instructions.

  Subpart B_What Services Are Available and Who Is Eligible To Receive 
                                  Care?

136a.10 Definitions.
136a.11 Services available.
136a.12 Persons to whom health services will be provided.
136a.13 Authorization for contract health services.
136a.14 Reconsideration and appeals.
136a.15 Health Service Delivery Areas.
136a.16 Beneficiary Identification Cards and verification of tribal 
          membership.

Subpart C [Reserved]

                     Subpart D_Transition Provisions

136a.31 Transition period.
136a.32 Delayed implementation.

[[Page 760]]

136a.33 Grace period.
136a.34 Care and treatment of people losing eligibility.

                   Subpart E_Preference in Employment

136a.41 Definitions.
136a.42 Appointment actions.
136a.43 Application procedure for preference eligibility.

   Subpart F_Abortions and Related Medical Services in Indian Health 
          Service Facilities and Indian Health Service Programs

136a.51 Applicability.
136a.52 Definitions.
136a.53 General rule.
136a.54 Life of the mother would be endangered.
136a.55 Drugs and devices and termination of ectopic pregnancies.
136a.56 Recordkeeping requirements.
136a.57 Confidentiality.

                        Subpart G_Residual Status

136.61 Payor of last resort.

    Authority: Sec. 3, 68 Stat. 674; 42 U.S.C. 2003, 42 Stat. 208, sec. 
1, 68 Stat. 674; 25 U.S.C. 13, 42 U.S.C. 2001, unless otherwise noted.

    Source: 64 FR 58318, 58319, Oct. 28, 1999, unless otherwise noted. 
Redesignated at 67 FR 35342, May 17, 2002.

    Effective Date Note: At 64 FR 58318, 58319, Oct. 28, 1999, as 
corrected at 65 FR 53914, Sept. 6, 2000, Subparts A-G of part 36 were 
redesignated as part 36a and suspended indefinitely, effective Oct. 28, 
1999. At 67 FR 35342, May 17, 2002, part 36a was redesignated as part 
136a and moved to subchapter M.



                            Subpart A_Purpose



Sec. 136a.1  Purpose of the regulations.

    These regulations establish general principles and program 
requirements for carrying out the Indian health program.

[46 FR 40692, Aug. 11, 1981. Redesignated at 52 FR 35048, Sept. 16, 
1987]



Sec. 136a.2  Administrative instructions.

    The Service periodically issues administrative instructions to its 
officers and employees which are primarily found in the Indian Health 
Service Manual and the Area Office and Program Office supplements. These 
instructions are operating procedures to assist officers and employees 
in carrying out their responsibilities, and are not regulations 
establishing program requirements which are binding upon members of the 
general public.

[46 FR 40692, Aug. 11, 1981. Redesignated at 52 FR 35048, Sept. 16, 
1987]



  Subpart B_What Services Are Available and Who Is Eligible To Receive 
                                  Care?



Sec. 136a.10  Definitions.

    As used in this subpart:
    Appropriate ordering official means, unless otherwise specified by 
contract with the health care facility or provider or by a contract with 
a tribe or tribal organization, the ordering official for the Service 
Unit in which the individual requesting contract health services or on 
whose behalf the services are requested, resides.
    Area Director means the Director of an Indian Health Service Area 
Office designated for purposes for administration of Indian Health 
Service Programs.
    Contract health services means health services provided at the 
expense of the Indian Health Service from public or private medical or 
hospital facilities other than those of the Service or those funded by 
the Service.
    Emergency means any medical condition for which immediate medical 
attention is necessary to prevent the death or serious impairment of the 
health of an individual.
    Health Service Delivery Area means a geographic area designated 
pursuant to Sec. 36.15 of this subpart.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et. seq., which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    Reservation means any Federally recognized Indian tribe's 
reservation, Pueblo, or colony, including former reservations in 
Oklahoma, Alaska Native regions established pursuant to the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601 et seq.), and Indian

[[Page 761]]

allotments if considered reservation land by the Bureau of Indian 
Affairs.
    Reside means living in a locality with the intent to make it a fixed 
and a permanent home. The following persons will be deemed residents of 
the Health Service Delivery Area:
    (1) Students who are temporarily absent from the Health Service 
Delivery Area during full time attendance at programs of vocational, 
technical, or academic education including normal school breaks;
    (2) Persons who are temporarily absent from the Health Service 
Delivery Area for purposes of travel or employment (such as seasonal or 
migratory workers);
    (3) Indian children placed in foster care outside the Health Service 
Delivery Area by order of a court of competent jurisdiction and who were 
residents within the Health Service Delivery Area at the time of the 
court order.
    Secretary means the Secretary of Health and Human Services and any 
other officer or employee of the Department of Health and Human Services 
to whom the authority involved has been delegated.
    Service means the Indian Health Service.
    Service Unit Director means the Director of Indian Health Service 
programs for a designated geographical or tribal area of responsibility 
or the equivalent official of a contractor administering an IHS program.

[52 FR 35048, Sept. 16, 1987, as amended at 55 FR 4609, Feb. 9, 1990]



Sec. 136a.11  Services available.

    (a) Type of services that may be available. Services for the Indian 
community served by the local facilities and program may include 
hospital and medical care, dental care, public health nursing and 
preventive care including immunizations, and health examination of 
special groups such as school children.
    (b) Where services are available. Available services will be 
provided at hospitals and clinics of the Service, and at contract 
facilities (including tribal facilities under contract with the 
Service).
    (c) Determination of what services are available. The Service does 
not provide the same health services in each area served. The services 
provided to any particular Indian community will depend upon the 
facilities and services available from sources other than the Service 
and the financial and personnel resources made available to the Service.
    (d) Priorities when funds, facilities, or personnel are insufficient 
to provide the indicated volume of services. Priorities for care and 
treatment, as among individuals who are within the scope of the program, 
will be determined on the basis of relative medical need and access to 
other arrangements for obtaining the necessary care.

[46 FR 40692, Aug. 11, 1981, as amended at 52 FR 35048, Sept. 16, 1987]



Sec. 136a.12  Persons to whom health services will be provided.

    (a) Subject to the requirements of this subpart, the Indian Health 
Service will provide direct services at its facilities, and contract 
health services, as medically indicated, and to the extent that funds 
and resources allocated to the particular Health Service Delivery Area 
permit, to persons of Indian or Alaska Native descent who:
    (1) Are members of a federally recognized Indian tribe; and
    (2) Reside within a Health Service Delivery Area designated under 
Sec. 36a.15; or
    (3) Are not members of a federally recognized Indian tribe but are 
the natural minor children (18 years old or under) of a member of a 
Federally recognized tribe and reside within a Health Service Delivery 
Area designated under Sec. 36a.15.
    (b) Subject to the requirements of this subpart, the Indian Health 
Service will also provide direct services at its facilities and, except 
where otherwise provided, contract health services, as medically 
indicated and to the extent that funds and resources allocated to the 
particular Health Service Delivery Area permit, to people in the 
circumstances listed below:
    (1) To persons who meet the eligibility criteria in paragraph (a) of 
this section except for the residency requirement, who formerly resided 
within a Health Service Delivery area designated under Sec. 36a.15, and 
who present

[[Page 762]]

themselves to any Indian Health Service or Indian Health Service funded 
facility (and to minor children of such persons if the children meet the 
eligibility criteria in paragraph (a) of this section except for the 
residency requirement). Contract health services may not be authorized 
for these individuals;
    (2) To a non-Indian woman pregnant with an eligible Indian's child 
but only during the period of her pregnancy through post-partum 
(generally about 6 weeks after delivery). In cases where the woman is 
not married to the eligible Indian under applicable state or tribal law, 
paternity must be acknowledged in writing by the Indian or determined by 
order of a court of competent jurisdiction;
    (3) To non-Indian members of an eligible Indian's household if the 
medical officer in charge determines that the health services are 
necessary to control acute infectious disease or a public health hazard; 
and
    (4) To an otherwise eligible person for up to 90 days after the 
person ceases to reside in a Health Service Delivery Area when the 
Service Unit Director has been notified of the move.
    (c) Contract health services will not be authorized when and to the 
extent that Indian Health Service or Indian Health Service funded 
facilities are available to provide the needed care. When funds are 
insufficient to provide the volume of contract health services needed by 
the service population, the Indian Health Service shall determine 
service priorities on the basis of medical need.
    (d) The Indian Health Service may provide direct services at its 
facilities on a fee-for-service basis to persons who are not 
beneficiaries under paragraphs (a) and (b) of this section under a 
number of authorities including the following:
    (1) In emergencies under section 322(b) of the Public Health Service 
Act, 42 U.S.C. 249(b), and 42 CFR 32.111 of the regulations;
    (2) To Public Health Service and other Federal beneficiaries under 
Economy Act (31 U.S.C. 1535) arrangements to the extent that providing 
services does not interfere with or restrict the provision of services 
to Indian and Alaska Native beneficiaries; and
    (3) To non-beneficiaries residing within the Health Service Delivery 
Area when approved by the tribe or tribes located on the reservation but 
only to the extent that providing services does not interfere with or 
restrict the provision of services to Indian and Alaska Native 
beneficiaries.

(Approved by the Office of Management and Budget under control number 
0915-0107)

[52 FR 35048, Sept. 16, 1987, as amended at 55 FR 4609, Feb. 9, 1990; 65 
FR 53914, Sept. 6, 2000]



Sec. 136a.13  Authorization for contract health services.

    (a) No payment will be made for medical care and services obtained 
from non-Service providers or in non-Service facilities unless the 
applicable requirements of paragraphs (b) and (c) below have been met 
and a purchase order for the care and services has been issued by the 
appropriate ordering official to the medical care provider.
    (b) In non-emergency cases, a sick or disabled Indian, or an 
individual or agency acting on behalf of the Indian, or the medical care 
provider shall, prior to the provision of medical care and services, 
notify the appropriate ordering official of the need for services and 
supply information that the ordering official deems necessary to 
determine the relative medical need for the services and the 
individual's eligibility. The requirement for notice prior to providing 
medical care and services under this paragraph may be waived by the 
ordering official if:
    (1) Such notice and information is provided within 72 hours after 
the beginning of treatment or admission to a health care facility; and
    (2) The ordering official determines that giving of notice prior to 
obtaining the medical care and services was impracticable or that other 
good cause exists for the failure to provide prior notice.
    (c) In emergency cases, a sick or disabled Indian, or an individual 
or agency acting on behalf of the Indian, or the medical care provider 
shall, within 72 hours after the beginning of treatment for the 
condition or after admission to a health care facility notify the

[[Page 763]]

appropriate ordering official of the fact of the admission or treatment, 
together with information necessary to determine the relative medical 
need for the services and the eligibility of the Indian for the 
services. The 72-hour period may be extended if the ordering official 
determines that notification within the prescribed period was 
impracticable or that other good cause exists for the failure to comply.

[43 FR 34654, Aug. 4, 1978. Redesignated at 52 FR 35048, Sept. 16, 1987]



Sec. 136a.14  Reconsideration and appeals.

    (a) Any person who has applied for and been denied health services 
or eligibility by the Indian Health Service or by any contractor 
contracting to administer an Indian Health Service program or portion of 
a program, including tribes and tribal organizations contracting under 
the Indian Self-Determination Act, shall be notified of the denial in 
writing together with a statement of all the reasons for the denial. The 
notice shall advise the applicant that within 30 days from the receipt 
of the notice the applicant.
    (b) If the original decision is affirmed on reconsideration, the 
applicant shall be so notified in writing and advised that an appeal may 
be taken to the area or program director within 30 days of receipt of 
the notice of the reconsidered decision. The appeal shall be in writing 
and shall set forth the grounds supporting the appeal.
    (c) If the original or reconsidered decision is affirmed on appeal 
by the area or program director, the applicant shall be so notified in 
writing and advised that a further appeal may be taken to the Director, 
Indian Health Service, within 30 days of receipt of the notice. The 
appeal shall be in writing and shall set forth the grounds supporting 
the appeal. The decision of the Director, Indian Health Service, shall 
constitute final administrative action.

(Approved by the Office of Management and Budget under control number 
0915-0107)

[43 FR 34654, Aug. 4, 1978. Redesignated and amended at 52 FR 35048, 
35049, Sept. 16, 1987]



Sec. 136a.15  Health Service Delivery Areas.

    (a) The Indian Health Service will designate and publish as a notice 
in the Federal Register specific geographic areas within the United 
States including Federal Indian reservations and areas surrounding those 
reservations as Health Service Delivery Areas.
    (b) The Indian Health Service may, after consultation with all the 
Indian tribes affected, redesignate the boundaries of any Health Service 
Delivery Area followed by publication of a notice in the Federal 
Register. Any redesignation of a Health Service Delivery area will 
include the reservation, and those areas close to the reservation 
boundaries which can reasonably be considered part of the reservation 
service area based on consideration of the following factors:
    (1) The number of persons residing in the off-reservation area who 
would be eligible under Sec. 36a.12(a) (1) and (3).
    (2) The number of persons residing in the off-reservation area who 
have traditionally received health services from the Indian Health 
Service and whose eligibility for services would be affected;
    (3) The geographic proximity of the off-reservation area to the 
reservation; and
    (4) Whether the Indians residing in the off-reservation area can be 
expected to need and to use health services provided by the Indian 
Health Service given the alternate resources (health facilities and 
payment sources) available and accessible to them.
    (c) Notwithstanding paragraphs (a) and (b) of this section, the 
Indian Health Service may designate States, subdivisions of States such 
as counties or towns, or other identifiable geographic areas such as 
census divisions or zip code areas, as Health Service Delivery Areas 
where reservations are nonexistent, or so small and scattered and the 
eligible Indian population so widely dispersed that it is inappropriate 
to use reservations as the basis for defining the Health Service 
Delivery Area.
    (d) Any Indian tribal government may request a change in the 
boundaries of the Health Service Delivery

[[Page 764]]

Area. Such a request should be supported by documentation related to the 
factors for consideration set out in paragraph (b) of this section and 
shall include documentation of any consultation with or notification of 
other affected or nearby tribes. The request shall be submitted to the 
appropriate Area Director(s) who shall afford all Indian tribes affected 
the opportunity to express their views orally and in writing. The Area 
Director(s) shall then submit the request, including all comments, 
together with the Area's recommendation and independent findings or 
verification of the factors set out in paragraph (b) of this section, to 
the Indian Health Service Director or to the Director's designee for the 
Indian Health Service decision. The decision of the Indian Health 
Service Director or the Director's designee shall constitute final 
agency action on the tribe's request. Changes in the boundaries of 
Health Service Delivery Areas will be published in the Federal Register.

(Approved by the Office of Management and Budget under control number 
0915-0107)

[52 FR 35049, Sept. 16, 1987, as amended at 65 FR 53914, Sept. 6, 2000]



Sec. 136a.16  Beneficiary Identification Cards and verification of tribal 

membership.

    (a) The Indian Health Service will issue Beneficiary Identification 
Cards as evidence of beneficiary status to persons who are currently 
eligible for services under Sec. 36a.12(a). Persons requesting 
Beneficiary Identification Cards must submit or have on file evidence 
satisfactory to the Indian Health Service of tribal membership and 
residence within a Health Service Delivery Area. The absence of a 
Beneficiary Identification Card will not preclude an otherwise eligible 
Indian from obtaining services though it may delay the administrative 
determination that an individual is eligible for services on a no charge 
basis.
    (b) For establishing eligibility or obtaining a Beneficiary 
Identification Card, applicants must demonstrate that they are members 
of a federally recognized tribe. Membership in a federally recognized 
tribe is to be determined by the individual tribe or the Bureau of 
Indian Affairs. Therefore, the Indian Health Service will recognize two 
methods of demonstrating tribal membership:
    (1) Documentation that the applicant meets the requirements of 
tribal membership as prescribed by the charter, articles of 
incorporation, or other legal instruments or traditional processes of 
the tribe and has been officially designated a tribal member by an 
authorized tribal official or body; or
    (2) Certification of tribal enrollment or membership by the 
Secretary of the Interior acting through the Bureau of Indian Affairs.
    (c) Demonstrating membership in a federally recognized tribe is the 
responsibility of the applicant. However, the Indian Health Service may 
consult with the appropriate tribe or the Bureau of Indian Affairs on 
outstanding questions regarding an applicant's tribal membership if the 
Indian Health Service has some documentation that it believes may be 
helpful to the tribe or the Bureau of Indian Affairs in making their 
determination.

(Approved by the Office of Management and Budget under control number 
0915-0107)

[50 FR 35050, Sept. 16, 1987, as amended at 65 FR 53914, Sept. 6, 2000]

Subpart C [Reserved]



                     Subpart D_Transition Provisions

    Source: 52 FR 35050, Sept. 16, 1987, unless otherwise noted.



Sec. 136a.31  Transition period.

    (a) The transition period for full implementation of the new 
eligibility regulations consists of three parts;
    (1) A six month delayed implementation;
    (2) A six month grace period; and
    (3) A health care continuity period determined by medical factors.



Sec. 136a.32  Delayed implementation.

    (a) The eligibility requirements in subparts A and B of this part 
become effective March 16, 1988.
    (b) During the six month delayed implementation period the former 
eligibility regulations will apply.

[[Page 765]]



Sec. 136a.33  Grace period.

    (a) Upon the effective date referred to in Sec. 36a.32(a), 
individuals who would lose their eligibility under the new eligilibity 
regulations published on September 16, 1987, and who have made use of an 
Indian Health Service of Indian Health Service funded service within 
three years prior to September 16, 1987 (date of publication of the new 
eligibility regulations) shall retain their eligibility for a six month 
grace period ending September 16, 1988. During this grace period such 
individual's eligibility will continue to be determined under the former 
regulations except that the new residency requirements established by 
subparts A and B must be met for the individual to be eligible.
    (b) All individuals who receive services during the grace period 
based on paragraph (a) of this section and whose eligibility will 
terminate on September 16, 1988, shall be notified in writing that after 
September 16, 1988 they will no longer the eligible for services as 
Indian Health Service beneficiaries. Such written notice should include 
an explanation of their appeal rights as provided in Sec. 36a.14 of the 
part. These patients shall be offered assistance in locating other 
health care providers and medical assistance programs.

[52 FR 35050, Sept. 16, 1987, as amended at 65 FR 53914, Sept. 6, 2000]



Sec. 136a.34  Care and treatment of people losing eligibility.

    (a) Individuals who lose their eligibility on September 16, 1988, 
(end of the grace period) and on that date are actively undergoing 
treatment may still be provided services for a limited period in the 
following circumstances;
    (1) Inpatients in IHS and IHS funded facilities and those receiving 
inpatient care under contract, including contract health services, may 
continue to receive such care and necessary follow-up services at Indian 
Health Service expense until the need for hospitalization and follow-up 
services has ended as determined by the responsible Indian Health 
Service or tribal physician, all other conditions being met including 
medical priorities;
    (2) Those actively undergoing a course of outpatient treatment 
either in Indian Health Service and Indian Health Service funded 
facilities or through contract health services, termination of which 
would impair the health of the individual patient, may continue to 
receive the treatment at Indian Health Service expense for a reasonable 
length of time, until the course of treatment reaches a point where it 
may safely be terminated or the patient transferred to other providers 
as determined by the responsible Indian Health Service or tribal 
physician, all other conditions being met including medical priorities.
    (3) Those under treatment for chronic degenerative conditions may be 
provided additional treatment at Indian Health Service expense for no 
longer than 1 year beyond the end of the grace period notwithstanding 
any determination that it was otherwise safe to transfer treatment to 
other providers, all other conditions being met including medical 
priorities.
    (b) All patients receiving care under paragraph (a) of this section 
shall be notified in writing that, after discharge from care provided 
under any of the above circumstances, they will no longer be eligible 
for services as Indian Health Service beneficiaries. Such notice shall 
include an explanation of their appeal rights as provided in Sec. 
36a.14 of this part. These patients shall be offered assistance in 
locating other health care providers and medical assistance programs.

[52 FR 35050, Sept. 16, 1987, as amended at 65 FR 53914, Sept. 6, 2000]



                   Subpart E_Preference in Employment

    Authority: 25 U.S.C. 44, 45, 46 and 472; Pub. L. 83-568, 42 U.S.C. 
2003.



Sec. 136a.41  Definitions.

    For purposes of making appointments to vacancies in all positions in 
the Indian Health Service a preference will be extended to persons of 
Indian descent who are:
    (a) Members of any recognized Indian tribe now under Federal 
jurisdiction;

[[Page 766]]

    (b) Descendants of such members who were, on June 1, 1934, residing 
within the present boundaries of any Indian reservation;
    (c) All others of one-half or more Indian blood of tribes indigenous 
to the United States;
    (d) Eskimos and other aboriginal people of Alaska; or
    (e) Until January 4, 1990 or until the Osage Tribe has formally 
organized, whichever comes first, a person of at least one-quarter 
degree Indian ancestry of the Osage Tribe of Indians, whose rolls were 
closed by an act of Congress.

[43 FR 29783, July 11, 1978, as amended at 54 FR 48246, Nov. 22, 1989]



Sec. 136a.42  Appointment actions.

    (a) Preference will be afforded a person meeting any one of the 
definitions of Sec. 36a.41 whether the placement in the position 
involves initial appointment, reappointment, reinstatement, transfer, 
reassignment, promotion, or any other personnel action intended to fill 
a vacancy.
    (b) Preference eligibles may be given a schedule A excepted 
appointment under 5 CFR 213.3116(b)(8). If the individuals are within 
reach on a Civil Service Register, they may be given a competitive 
appointment.

[43 FR 29783, July 11, 1978, as amended at 65 FR 53914, Sept. 6, 2000]



Sec. 136a.43  Application procedure for preference eligibility.

    To be considered a preference eligible, the person must submit with 
the employment application a Bureau of Indian Affairs certification that 
the person is an Indian as defined by Sec. 36a.41 except that an 
employee of the Indian Health Service who has a certificate of 
preference eligibility on file in the Official Personnel Folder is not 
required to resubmit such proof but may instead include a statement on 
the application that proof of eligibility is on file in the Official 
Personnel Folder.

[43 FR 29783, July 11, 1978, as amended at 65 FR 53914, Sept. 6, 2000]



   Subpart F_Abortions and Related Medical Services in Indian Health 
          Service Facilities and Indian Health Service Programs

    Authority: Sec. 1, 42 Stat. 208, 25 U.S.C. 13; sec. 1, 68 Stat. 674, 
42 U.S.C. 2001; sec. 3, 68 Stat. 674, 42 U.S.C. 2003.

    Source: 47 FR 4018, Jan. 27, 1982, unless otherwise noted.



Sec. 136a.51  Applicability.

    This subpart is applicable to the use of Federal funds in providing 
health services to Indians in accordance with the provisions of subparts 
A, B, C, H, I and J of this part.



Sec. 136a.52  Definitions.

    As used in this subpart:
    Physician means a doctor of medicine or osteopathy legally 
authorized to practice medicine and surgery at an Indian Health Service 
or tribally run facility, or by the State in which he or she practices.



Sec. 136a.53  General rule.

    Federal funds may not be used to pay for or otherwise provide for 
abortions in the programs described in Sec. 36a.51, except under the 
Circumstances discribed in Sec. 36a.54.

[47 FR 4018, Jan. 27, 1982, as amended at 65 FR 53914, Sept. 6, 2000]



Sec. 136a.54  Life of the mother would be endangered.

    Federal funds are available for an abortion when a physician has 
found and so certified in writing to the appropriate tribal or other 
contracting organization, or service unit or area director, that ``on 
the basis of my professional judgement the life of the mother would be 
endangered if the fetus were carried to term.'' The certification must 
contain the name and address of the patient.



Sec. 136a.55  Drugs and devices and termination of ectopic pregnancies.

    Federal funds are available for drugs or devices to prevent 
implantation of the fertilized ovum, and for medical procedures 
necessary for the termination of an ectopic pregnancy.

[[Page 767]]



Sec. 136a.56  Recordkeeping requirements.

    Documents required by Sec. 36a.54 must be maintained for three 
years pursuant to the retention and custodial requirements for records 
at 45 CFR 74.20 et seq.

[47 FR 4018, Jan. 27, 1982, as amended at 65 FR 53914, Sept. 6, 2000]



Sec. 136a.57  Confidentiality.

    Information which is acquired in connection with the requirements of 
this subpart may not be disclosed in a form which permits the 
identification of an individual without the individual's consent, except 
as may be necessary for the health of the individual or as may be 
necessary for the Secretary to monitor Indian Health Service program 
activities. In any event, any disclosure shall be subject to appropriate 
safeguards which will minimize the likelihood of disclosures of personal 
information in identifiable form.



                        Subpart G_Residual Status



Sec. 136a.61  Payor of last resort.

    (a) The Indian Health Service is the payor of last resort of persons 
defined as eligible for contract health services under these 
regulations, notwithstanding any State or local law or regulation to the 
contrary.
    (b) Accordingly, the Indian Health Service will not be responsible 
for or authorize payment for contract health services to the extent 
that:
    (1) The Indian is eligible for alternate resources, as defined in 
paragraph (c), or
    (2) The Indian would be eligible for alternate resources if he or 
she were to apply for them, or
    (3) The Indian would be eligible for alternate resources under State 
or local law or regulation but for the Indian's eligibility for contract 
health services, or other health services, from the Indian Health 
Service or Indian Health Service funded programs.
    (c) Alternate resources means health care resources other than those 
of the Indian Health Service. Such resources include health care 
providers and institutions, and health care programs for the payment of 
health services including but not limited to programs under title XVIII 
and XIX of the Social Security Act (i.e., Medicare, Medicaid), State or 
local health care programs and private insurance.

[55 FR 4609, Feb. 9, 1990]



PART 137_TRIBAL SELF-GOVERNANCE--Table of Contents




                      Subpart A_General Provisions

Sec.
137.1 Authority, purpose and scope.
137.2 Congressional policy.
137.3 Effect on existing Tribal rights.
137.4 May Title V be construed to limit or reduce in any way the funding 
          for any program, project, or activity serving an Indian Tribe 
          under this or other applicable Federal law?
137.5 Effect of these regulations on Federal program guidelines, manual, 
          or policy directives.
137.6 Secretarial policy.

                          Subpart B_Definitions

137.10 Definitions.

     Subpart C_Selection of Indian Tribes for Participation in Self-
                               Governance

137.15 Who may participate in Tribal Self-Governance?
137.16 What if more than 50 Indian Tribes apply to participate in self-
          governance?
137.17 May more than one Indian Tribe participate in the same compact 
          and/or funding agreement?
137.18 What criteria must an Indian Tribe satisfy to be eligible to 
          participate in self-governance?

                             Planning Phase

137.20 What is required during the planning phase?
137.21 How does an Indian Tribe demonstrate financial stability and 
          financial management capacity?
137.22 May the Secretary consider uncorrected significant and material 
          audit exceptions identified regarding centralized financial 
          and administrative functions?
137.23 For purposes of determining eligibility for participation in 
          self-governance, may the Secretary consider any other 
          information regarding the Indian Tribe's financial stability 
          and financial management capacity?
137.24 Are there grants available to assist the Indian Tribe to meet the 
          requirements to participate in self-governance?
137.25 Are planning and negotiation grants available?

[[Page 768]]

137.26 Must an Indian Tribe receive a planning or negotiation grant to 
          be eligible to participate in self-governance?

                    Subpart D_Self-Governance Compact

137.30 What is a self-governance compact?
137.31 What is included in a compact?
137.32 Is a compact required to participate in self-governance?
137.33 May an Indian Tribe negotiate a funding agreement at the same 
          time it is negotiating a compact?
137.34 May a funding agreement be executed without negotiating a 
          compact?
137.35 What is the term of a self-governance compact?

                      Subpart E_Funding Agreements

137.40 What is a funding agreement?
137.41 What PSFAs must be included in a funding agreement?
137.42 What Tribal shares may be included in a funding agreement?
137.43 May a Tribe negotiate and leave funds with IHS for retained 
          services?

                      Terms in a Funding Agreement

137.45 What terms must be included in a funding agreement?
137.46 May additional terms be included in a funding agreement?
137.47 Do any provisions of Title I apply to compacts, funding 
          agreements, and construction project agreements negotiated 
          under Title V of the Act?
137.48 What is the effect of incorporating a Title I provision into a 
          compact or funding agreement?
137.49 What if a Self-Governance Tribe requests such incorporation at 
          the negotiation stage of a compact or funding agreement?

                       Term of a Funding Agreement

137.55 What is the term of a funding agreement?
137.56 Does a funding agreement remain in effect after the end of its 
          term?
137.57 How is a funding agreement amended during the effective period of 
          the funding agreement?

                  Subpart F_Statutorily Mandated Grants

137.60 May a statutorily mandated grant be added to a funding agreement?
137.65 May a Self-Governance Tribe receive statutorily mandated grant 
          funding in an annual lump sum advance payment?
137.66 May a Self-Governance Tribe keep interest earned on statutorily 
          mandated grant funds?
137.67 How may a Self-Governance Tribe use interest earned on 
          statutorily mandated grant funds?
137.68 May funds from a statutorily mandated grant be added to a funding 
          agreement be reallocated?
137.69 May a statutorily mandated grant program added to a funding 
          agreement be redesigned?
137.70 Are the reporting requirements different for a statutorily 
          mandated grant program added to a funding agreement?
137.71 May the Secretary and the Self-Governance Tribe develop separate 
          programmatic reporting requirements for statutorily mandated 
          grants?
137.72 Are Self-Governance Tribes and their employees carrying out 
          statutorily mandated grant programs added to a funding 
          agreement covered by the Federal Tort Claims Act (FTCA)?
137.73 What provisions of Title V apply to statutorily mandated grants 
          added to the funding agreement?

                            Subpart G_Funding

                                 General

137.75 What funds must the Secretary transfer to a Self-Governance Tribe 
          in a funding agreement?
137.76 When must the Secretary transfer to a Self-Governance Tribe funds 
          identified in a funding agreement?
137.77 When must the Secretary transfer funds that were not paid as part 
          of the initial lump sum payment?
137.78 May a Self-Governance Tribe negotiate a funding agreement for a 
          term longer or shorter than one year?
137.79 What funds must the Secretary include in a funding agreement?

                              Prohibitions

137.85 Is the Secretary prohibited from failing or refusing to transfer 
          funds that are due to a Self-Governance Tribe under Title V?
137.86 Is the Secretary prohibited from reducing the amount of funds 
          required under Title V to make funding available for self-
          governance monitoring or administration by the Secretary?
137.87 May the Secretary reduce the amount of funds due under Title V in 
          subsequent years?
137.88 May the Secretary reduce the amount of funds required under Title 
          V to pay for Federal functions, including Federal pay costs, 
          Federal employee retirement benefits, automated data 
          processing, technical assistance, and monitoring of activities 
          under the Act?
137.89 May the Secretary reduce the amount of funds required under Title 
          V to pay for costs of Federal personnel displaced by contracts 
          under Title I or self-governance under Title V?

[[Page 769]]

137.90 May the Secretary increase the funds required under the funding 
          agreement?

             Acquisition of Goods and Services From the IHS

137.95 May a Self-Governance Tribe purchase goods and services from the 
          IHS on a reimbursable basis?

                           Prompt Payment Act

137.96 Does the Prompt Payment Act apply to funds transferred to a Self-
          Governance Tribe in a compact or funding agreement?

                  Interest or Other Income on Transfers

137.100 May a Self-Governance Tribe retain and spend interest earned on 
          any funds paid under a compact or funding agreement?
137.101 What standard applies to a Self-Governance Tribe's management of 
          funds paid under a compact or funding agreement?

                           Carryover of Funds

137.105 May a Self-Governance Tribe carryover from one year to the next 
          any funds that remain at the end of the funding agreement?

                             Program Income

137.110 May a Self-Governance Tribe retain and expend any program income 
          earned pursuant to a compact and funding agreement?

                           Limitation of Costs

137.115 Is a Self-Governance Tribe obligated to continue performance 
          under a compact or funding agreement if the Secretary does not 
          transfer sufficient funds?

                           Stable Base Budget

137.120 May a Self-Governance Tribe's funding agreement provide for a 
          stable base budget?
137.121 What funds may be included in a stable base budget amount?
137.122 May a Self-Governance Tribe with a stable base budget receive 
          other funding under its funding agreement?
137.123 Once stable base funding is negotiated, do funding amounts 
          change from year to year?
137.124 Does the effective period of a stable base budget have to be the 
          same as the term of the funding agreement?

                          Subpart H_Final Offer

137.130 What is covered by this subpart?
137.131 When should a final offer be submitted?
137.132 How does the Indian Tribe submit a final offer?
137.133 What does a final offer contain?
137.134 When does the 45-day review period begin?
137.135 May the Secretary request and obtain an extension of time of the 
          45-day review period?
137.136 What happens if the agency takes no action within the 45-day 
          review period (or any extensions thereof)?
137.137 If the 45-day review period or extension thereto, has expired, 
          and the Tribe's offer is deemed accepted by operation of law, 
          are there any exceptions to this rule?
137.138 Once the Indian Tribe's final offer has been accepted or deemed 
          accepted by operation of law, what is the next step?

                        Rejection of Final Offers

137.140 On what basis may the Secretary reject an Indian Tribe's final 
          offer?
137.141 How does the Secretary reject a final offer?
137.142 What is a ``significant danger'' or ``risk'' to the public 
          health'?
137.143 How is the funding level to which the Indian Tribe is entitled 
          determined?
137.144 Is technical assistance available to an Indian Tribe to avoid 
          rejection of a final offer?
137.145 If the Secretary rejects a final offer, is the Secretary 
          required to provide the Indian Tribe with technical 
          assistance?
137.146 If the Secretary rejects all or part of a final offer, is the 
          Indian Tribe entitled to an appeal?
137.147 Do those portions of the compact, funding agreement, or 
          amendment not in dispute go into effect?
137.148 Does appealing the decision of the Secretary prevent entering 
          into the compact, funding agreement or amendment?

                             Burden of Proof

137.150 What is the burden of proof in an appeal from rejection of a 
          final offer?

                             Decision Maker

137.155 What constitutes a final agency action?

                    Subpart I_Operational Provisions

                          Conflicts of Interest

137.160 Are Self-Governance Tribes required to address potential 
          conflicts of interest?

                       Audits and Cost Principles

137.165 Are Self-Governance Tribes required to undertake annual audits?
137.166 Are there exceptions to the annual audit requirements?

[[Page 770]]

137.167 What cost principles must a Self-Governance Tribe follow when 
          participating in self-governance under Title V?
137.168 May the Secretary require audit or accounting standards other 
          than those specified in Sec. 137.167?
137.169 How much time does the Federal Government have to make a claim 
          against a Self-Governance Tribe relating to any disallowance 
          of costs, based on an audit conducted under Sec. 137.165?
137.170 When does the 365-day period commence?
137.171 Where do Self-Governance Tribes send their audit reports?
137.172 Should the audit report be sent anywhere else to ensure receipt 
          by the Secretary?
137.173 Does a Self-Governance Tribe have a right of appeal from a 
          disallowance?

                                 Records

137.175 Is a Self-Governance Tribe required to maintain a recordkeeping 
          system?
137.176 Are Tribal records subject to the Freedom of Information Act and 
          Federal Privacy Act?
137.177 Is the Self-Governance Tribe required to make its records 
          available to the Secretary?
137.178 May Self-Governance Tribes store patient records at the Federal 
          Records Centers?
137.179 May a Self-Governance Tribe make agreements with the Federal 
          Records Centers regarding disclosure and release of the 
          patient records stored pursuant to Sec. 137.178?
137.180 Are there other laws that govern access to patient records?

                                Redesign

137.185 May a Self-Governance Tribe redesign or consolidate the PSFAs 
          that are included in a funding agreement and reallocate or 
          redirect funds for such PSFAs?

                             Non-Duplication

137.190 Is a Self-Governance Tribe that receives funds under Title V 
          also entitled to contract under section 102 of the Act [25 
          U.S.C. 450(f)] for such funds?

                          Health Status Reports

137.200 Are there reporting requirements for Self-Governance Tribes 
          under Title V?
137.201 What are the purposes of the Tribal reporting requirements?
137.202 What types of information will Self-Governance Tribes be 
          expected to include in the reports?
137.203 May a Self-Governance Tribe participate in a voluntary national 
          uniform data collection effort with the IHS?
137.204 How will this voluntary national uniform data set be developed?
137.205 Will this voluntary uniform data set reporting activity be 
          required of all Self-Governance Tribes entering into a compact 
          with the IHS under Title V?
137.206 Why does the IHS need this information?
137.207 Will funding be provided to the Self-Governance Tribe to 
          compensate for the costs of reporting?

                                 Savings

137.210 What happens if self-governance activities under Title V reduce 
          the administrative or other responsibilities of the Secretary 
          with respect to the operation of Indian programs and result in 
          savings?
137.211 How does a Self-Governance Tribe learn whether self-governance 
          activities have resulted in savings as described in Sec. 
          137.210.

                 Access to Government Furnished Property

137.215 How does a Self-Governance Tribe obtain title to real and 
          personal property furnished by the Federal Government for use 
          in the performance of a compact, funding agreement, 
          construction project agreement, or grant agreement pursuant to 
          section 512(c) of the Act [25 U.S.C. 458aaa-11(c)]?

              Matching and Cost Participation Requirements

137.217 May funds provided under compacts, funding agreements, or grants 
          made pursuant to Title V be treated as non-Federal funds for 
          purposes of meeting matching or cost participation 
          requirements under any other Federal or non-Federal program?

                     Federal Tort Claims Act (FTCA)

137.220 Do section 314 of Public Law 101-512 [25 U.S.C. 450f note] and 
          section 102(d) of the Act [25 U.S.C. 450f(d)] (regarding, in 
          part, FTCA coverage) apply to compacts, funding agreements and 
          construction project agreements?

                       Subpart J_Regulation Waiver

137.225 What regulations may be waived under Title V?
137.226 How does a Self-Governance Tribe request a waiver?
137.227 How much time does the Secretary have to act on a waiver 
          request?
137.228 Upon what basis may the waiver request be denied?
137.229 What happens if the Secretary neither approves or denies a 
          waiver request within the time specified in Sec. 137.227.

[[Page 771]]

137.230 Is the Secretary's decision on a waiver request final for the 
          Department?
137.231 May a Self-Governance Tribe appeal the Secretary's decision to 
          deny its request for a waiver of a regulation promulgated 
          under section 517 of the Act [25 U.S.C. 458aaa-16]?

                          Subpart K_Withdrawal

137.235 May an Indian Tribe withdraw from a participating inter-Tribal 
          consortium or Tribal organization?
137.236 When does a withdrawal become effective?
137.237 How are funds redistributed when an Indian Tribe fully or 
          partially withdraws from a compact or funding agreement and 
          elects to enter a contract or compact?
137.238 How are funds distributed when an Indian Tribe fully or 
          partially withdraws from a compact or funding agreement 
          administered by an inter-Tribal consortium or Tribal 
          organization serving more than one Indian Tribe and the 
          withdrawing Indian Tribe elects not to enter a contract or 
          compact?
137.239 If the withdrawing Indian Tribe elects to operate PSFAs carried 
          out under a compact or funding agreement under Title V through 
          a contract under Title I, is the resulting contract considered 
          a mature contract under section 4(h) of the Act [25 U.S.C. 
          450b(h)]?

                         Subpart L_Retrocession

137.245 What is retrocession ?
137.246 How does a Self-Governance Tribe retrocede a PSFA?
137.247 What is the effective date of a retrocession?
137.248 What effect will a retrocession have on a retroceding Self-
          Governance Tribe's rights to contract or compact under the 
          Act?
137.249 Will retrocession adversely affect funding available for the 
          retroceded program?
137.250 How are funds distributed when a Self-Governance Tribe fully or 
          partially retrocedes from its compact or funding agreement?
137.251 What obligation does the retroceding Self-Governance Tribe have 
          with respect to returning property that was provided by the 
          Secretary under the compact or funding agreement and that was 
          used in the operation of the retroceded program?

                         Subpart M_Reassumption

137.255 What does reassumption mean?
137.256 Under what circumstances may the Secretary reassume a program, 
          service, function, or activity (or portion thereof)?
137.257 What steps must the Secretary take prior to reassumption 
          becoming effective?
137.258 Does the Self-Governance Tribe have a right to a hearing prior 
          to a non-immediate reassumption becoming effective?
137.259 What happens if the Secretary determines that the Self-
          Governance Tribe has not corrected the conditions that the 
          Secretary identified in the notice?
137.260 What is the earliest date on which a reassumption can be 
          effective?
137.261 Does the Secretary have the authority to immediately reassume a 
          PSFA?
137.262 If the Secretary reassumes a PSFA immediately, when must the 
          Secretary provide the Self-Governance Tribe with a hearing?
137.263 May the Secretary provide a grant to a Self-Governance Tribe for 
          technical assistance to overcome conditions identified under 
          Sec. 137.257?
137.264 To what extent may the Secretary require the Self-Governance 
          Tribe to return property that was provided by the Secretary 
          under the compact or funding agreement and used in the 
          operation of the reassume program?
137.265 May a Tribe be reimbursed for actual and reasonable close out 
          costs incurred after the effective date of reassumption?

                         Subpart N_Construction

                            Purpose and Scope

137.270 What is covered by this subpart?
137.271 Why is there a separate subpart in these regulations for 
          construction project agreements?
137.272 What other alternatives are available for Self-Governance Tribes 
          to perform construction projects?
137.273 What are IHS construction PSFAs?
137.274 Does this subpart cover construction programs?
137.275 May Self-Governance Tribes include IHS construction programs in 
          a construction project agreement or in a funding agreement?

                        Construction Definitions

137.280 Construction definitions.

                              NEPA Process

137.285 Are Self-Governance Tribes required to accept Federal 
          environmental responsibilities to enter into a construction 
          project agreement?
137.286 Do Self-Governance Tribes become Federal agencies when they 
          assume these Federal environmental responsibilities?
137.287 What is the National Environmental Policy Act (NEPA)?
137.288 What is the National Historic Preservation Act (NHPA)?

[[Page 772]]

137.289 What is a Federal undertaking under NHPA?
137.290 What additional provisions of law are related to NEPA and NHPA?
137.291 May Self-Governance Tribes carry out construction projects 
          without assuming these Federal environmental responsibilities?
137.292 How do Self-Governance Tribes assume environmental 
          responsibilities for construction projects under section 509 
          of the Act [25 U.S.C. 458aaa-8]?
137.293 Are Self-Governance Tribes required to adopt a separate 
          resolution or take equivalent Tribal action to assume 
          environmental responsibilities for each construction project 
          agreement?
137.294 What is the typical IHS environmental review process for 
          construction projects?
137.295 May Self-Governance Tribes elect to develop their own 
          environmental review process?
137.296 How does a Self-Governance Tribe comply with NEPA and NHPA?
137.297 If the environmental review procedures of a Federal agency are 
          adopted by a Self-Governance Tribe, is the Self-Governance 
          Tribe responsible for ensuring the agency's policies and 
          procedures meet the requirements of NEPA, NHPA, and related 
          environmental laws?
137.298 Are Self-Governance Tribes required to comply with Executive 
          Orders to fulfill their environmental responsibilities under 
          section 509 of the Act [25 U.S.C. 458aaa-8]?
137.299 Are Federal funds available to cover the cost of Self-Governance 
          Tribes carrying out environmental responsibilities?
137.300 Since Federal environmental responsibilities are new 
          responsibilities which may be assumed by Tribes under section 
          509 of the Act [25 U.S.C. 458aaa-8], are there additional 
          funds available to Self-Governance Tribes to carry out these 
          formerly inherently Federal responsibilities?
137.301 How are project and program environmental review costs 
          identified?
137.302 Are Federal funds available to cover start-up costs associated 
          with initial Tribal assumption of environmental 
          responsibilities?
137.303 Are Federal or other funds available for training associated 
          with Tribal assumption of environmental responsibilities?
137.304 May Self-Governance Tribes buy back environmental services from 
          the IHS?
137.305 May Self-Governance Tribes act as lead, cooperating, or joint 
          lead agencies for environmental review purposes?
137.306 How are Self-Governance Tribes recognized as having lead, 
          cooperating, or joint lead agency status?
137.307 What Federal environmental responsibilities remain with the 
          Secretary when a Self-Governance Tribe assumes Federal 
          environmental responsibilities for construction projects under 
          section 509 of the Act [25 U.S.C. 458aaa-8]?
137.308 Does the Secretary have any enforcement authority for Federal 
          environmental responsibilities assumed by Tribes under Section 
          509 of the Act?
137.309 How are NEPA and NHPA obligations typically enforced?
137.310 Are Self-Governance Tribes required to grant a limited waiver of 
          their sovereign immunity to assume Federal environmental 
          responsibilities under Section 509 of the Act [25 U.S.C. 
          458aaa-8]?
137.311 Are Self-Governance Tribes entitled to determine the nature and 
          scope of the limited immunity waiver required under section 
          509(a)(2) of the Act?
137.312 Who is the proper defendant in a civil enforcement action under 
          section 509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)]?

    Notification (Prioritization Process, Planning, Development and 
                              Construction)

137.320 Is the Secretary required to consult with affected Indian Tribes 
          concerning construction projects and programs?
137.321 How do Indian Tribes and the Secretary identify and request 
          funds for needed construction projects?
137.322 Is the Secretary required to notify an Indian Tribe that funds 
          are available for a construction project or a phase of a 
          project?

                       Project Assumption Process

137.325 What does a Self-Governance Tribe do if it wants to perform a 
          construction project under section 509 of the Act [25 U.S.C. 
          458aaa-8]?
137.326 What must a Tribal proposal for a construction project agreement 
          contain?
137.327 May multiple projects be included in a single construction 
          project agreement?
137.328 Must a construction project proposal incorporate provisions of 
          Federal construction guidelines and manuals?
137.329 What environmental considerations must be included in the 
          construction project agreement?
137.330 What happens if the Self-Governance Tribe and the Secretary 
          cannot develop a mutually agreeable construction project 
          agreement?
137.331 May the Secretary reject a final construction project proposal 
          based on a determination of Tribal capacity or capability?
137.332 On what bases may the Secretary reject a final construction 
          project proposal?

[[Page 773]]

137.333 What procedures must the Secretary follow if the Secretary 
          rejects a final construction project proposal, in whole or in 
          part?
137.334 What happens if the Secretary fails to notify the Self-
          Governance Tribe of a decision to approve or reject a final 
          construction project proposal within the time period allowed?
137.335 What costs may be included in the budget for a construction 
          agreement?
137.336 What is the difference between fixed-price and cost-
          reimbursement agreements?
137.337 What funding must the Secretary provide in a construction 
          project agreement?
137.338 Must funds from other sources be incorporated into a 
          construction project agreement?
137.339 May the Self-Governance Tribe use project funds for matching or 
          cost participation requirements under other Federal and non-
          Federal programs?
137.340 May a Self-Governance Tribe contribute funding to a project?
137.341 How will a Self-Governance Tribe receive payment under a 
          construction project agreement?
137.342 What happens to funds remaining at the conclusion of a cost 
          reimbursement construction project?
137.343 What happens to funds remaining at the conclusion of a fixed 
          price construction project?
137.344 May a Self-Governance Tribe reallocate funds among construction 
          project agreements?

    Roles of Self-Governance Tribe in Establishing and Implementing 
                     Construction Project Agreements

137.350 Is a Self-Governance Tribe responsible for completing a 
          construction project in accordance with the negotiated 
          construction project agreement?
137.351 Is a Self-Governance Tribe required to submit construction 
          project progress and financial reports for construction 
          project agreements?
137.352 What is contained in a construction project progress report?
137.353 What is contained in a construction project financial report?

  Roles of the Secretary in Establishing and Implementing Construction 
                           Project Agreements

137.360 Does the Secretary approve project planning and design documents 
          prepared by the Self-Governance Tribe?
137.361 Does the Secretary have any other opportunities to approve 
          planning or design documents prepared by the Self-Governance 
          Tribe?
137.362 May construction project agreements be amended?
137.363 What is the procedure for the Secretary's review and approval of 
          amendments?
137.364 What constitutes a significant change in the original scope of 
          work?
137.365 What is the procedure for the Secretary's review and approval of 
          project planning and design documents submitted by the Self-
          Governance Tribe?
137.366 May the Secretary conduct onsite project oversight visits?
137.367 May the Secretary issue a stop work order under a construction 
          project agreement?
137.368 Is the Secretary responsible for oversight and compliance of 
          health and safety codes during construction projects being 
          performed by a Self-Governance Tribe under section 509 of the 
          Act [25 U.S.C. 488aaa-8]?

                                  Other

137.370 Do all provisions of this part apply to construction project 
          agreements under this subpart?
137.371 Who takes title to real property purchased with funds provided 
          under a construction project agreement?
137.372 Does the Secretary have a role in the fee-to-trust process when 
          real property is purchased with construction project agreement 
          funds?
137.373 Do Federal real property laws, regulations and procedures that 
          apply to the Secretary also apply to Self-Governance Tribes 
          that purchase real property with funds provided under a 
          construction project agreement?
137.374 Does the Secretary have a role in reviewing or monitoring a 
          Self-Governance Tribe's actions in acquiring or leasing real 
          property with funds provided under a construction project 
          agreement?
137.375 Are Tribally-owned facilities constructed under section 509 of 
          the Act [25 U.S.C. 458aaa-8] eligible for replacement, 
          maintenance, and improvement funds on the same basis as if 
          title to such property were vested in the United States?
137.376 Are design and construction projects performed by Self-
          Governance Tribes under section 509 of the Act [25 U.S.C. 
          458aaa-8] subject to Federal metric requirements?
137.377 Do Federal procurement law and regulations apply to construction 
          project agreements performed under section 509 of the Act [25 
          U.S.C. 458aaa-8]?
137.378 Does the Federal Davis-Bacon Act and wage rates apply to 
          construction projects performed by Self-Governance Tribes 
          using their own funds or other non-Federal funds?

[[Page 774]]

137.379 Do Davis-Bacon wage rates apply to construction projects 
          performed by Self-Governance Tribes using Federal funds?

                 Subpart O_Secretarial Responsibilities

                             Budget Request

137.401 What role does Tribal consultation play in the IHS annual budget 
          request process?

                                 Reports

137.405 Is the Secretary required to report to Congress on 
          administration of Title V and the funding requirements 
          presently funded or unfunded?
137.406 In compiling reports pursuant to this section, may the Secretary 
          impose any reporting requirements on Self-Governance Tribes, 
          not otherwise provided in Title V?
137.407 What guidelines will be used by the Secretary to compile 
          information required for the report?

                            Subpart P_Appeals

137.410 For the purposes of section 110 of the Act [25 U.S.C. 450m-1] 
          does the term ``contract'' include compacts, funding 
          agreements, and construction project agreements entered into 
          under Title V?

                           Post-Award Disputes

137.412 Do the regulations at 25 CFR Part 900, Subpart N apply to 
          compacts, funding agreements, and construction project 
          agreements entered into under Title V?

                           Pre-Award Disputes

137.415 What decisions may an Indian Tribe appeal under Sec. Sec. 
          137.415 through 137.436?
137.416 Do Sec. Sec. 137.415 through 137.436 apply to any other 
          disputes?
137.417 What procedures apply to Interior Board of Indian Appeals (IBIA) 
          proceedings?
137.418 How does an Indian Tribe know where and when to file its appeal 
          from decisions made by IHS?
137.419 What authority does the IBIA have under Sec. Sec. 137.415 
          through 137.436?
137.420 Does an Indian Tribe have any options besides an appeal?
137.421 How does an Indian Tribe request an informal conference?
137.422 How is an informal conference held?
137.423 What happens after the informal conference?
137.424 Is the recommended decision from the informal conference final 
          for the Secretary?
137.425 How does an Indian Tribe appeal the initial decision if it does 
          not request an informal conference or if it does not agree 
          with the recommended decision resulting from the informal 
          conference?
137.426 May an Indian Tribe get an extension of time to file a notice of 
          appeal?
137.427 What happens after an Indian Tribe files an appeal?
137.428 How is a hearing arranged?
137.429 What happens when a hearing is necessary?
137.430 What is the Secretary's burden of proof for appeals covered by 
          Sec. 137.145?
137.431 What rights do Indian Tribes and the Secretary have during the 
          appeal process?
137.432 What happens after the hearing?
137.433 Is the recommended decision always final?
137.434 If an Indian Tribe objects to the recommended decision, what 
          will the Secretary do?
137.435 Will an appeal adversely affect the Indian Tribe's rights in 
          other compact, funding negotiations, or construction project 
          agreements?
137.436 Will the decisions on appeal be available for the public to 
          review?

    Appeals of an Immediate Reassumption of a Self-Governance Program

137.440 What happens in the case of an immediate reassumption under 
          section 507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)]?
137.441 Will there be a hearing?
137.442 What happens after the hearing?
137.443 Is the recommended decision always final?
137.444 If a Self-Governance Tribe objects to the recommended decision, 
          what action will the Secretary take?
137.445 Will an immediate reassumption appeal adversely affect the Self-
          Governance Tribe's rights in other self-governance 
          negotiations?

                    Equal Access to Justice Act Fees

137.450 Does the Equal Access to Justice Act (EAJA) apply to appeals 
          under this subpart?

    Authority: 25 U.S.C. 458 et seq.

    Source: 67 FR 35342, May 17, 2002, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 137.1  Authority, purpose and scope

    (a) Authority. These regulations are prepared, issued and maintained 
with the active participation and representation of Indian Tribes, 
Tribal organizations and inter-Tribal consortia pursuant to the guidance 
of the negotiated rulemaking procedures required by section 517 of the 
Act [25 U.S.C. 458aaa-16].

[[Page 775]]

    (b) Purpose. These regulations codify rules for self-governance 
compacts, funding agreements, and construction project agreements 
between the Department of Health and Human Services (DHHS) and Self-
Governance Tribes to implement sections 2, 3, and 4 of Pub. L. 106-260.
    (c) Scope. These regulations are binding on the Secretary and on 
Indian Tribes carrying out programs, services, functions, and activities 
(or portions thereof) (PSFAs) under Title V except as otherwise 
specifically authorized by a waiver under section 512(b) of the Act [25 
U.S.C. 458aaa-11(b)].
    (d) Information collection. The information collection requirements 
have been submitted to the Office of Management and Budget (OMB) and are 
pending OMB approval.



Sec. 137.2  Congressional policy.

    (a) According to section 2 of Pub. L. 106-260, Congress has declared 
that:
    (1) The Tribal right of self-government flows from the inherent 
sovereignty of Indian Tribes and nations;
    (2) The United States recognizes a special government-to-government 
relationship with Indian Tribes, including the right of the Indian 
Tribes to self-governance, as reflected in the Constitution, treaties, 
Federal statutes, and the course of dealings of the United States with 
Indian Tribes;
    (3) Although progress has been made, the Federal bureaucracy, with 
its centralized rules and regulations, has eroded Tribal Self-Governance 
and dominates Tribal affairs.
    (4) The Tribal Self-Governance Demonstration Project, established 
under title III of the Indian Self-Determination Act (ISDA) [25 U.S.C. 
450f note] was designed to improve and perpetuate the government-to-
government relationship between Indian Tribes and the United States and 
to strengthen Tribal control over Federal funding and program 
management;
    (5) Although the Federal Government has made considerable strides in 
improving Indian health care, it has failed to fully meet its trust 
responsibilities and to satisfy its obligations to the Indian Tribes 
under treaties and other laws; and
    (6) Congress has reviewed the results of the Tribal Self-Governance 
Demonstration Project and finds that transferring full control and 
funding to Tribal governments, upon Tribal request, over decision making 
for Federal PSFAs:
    (i) Is an appropriate and effective means of implementing the 
Federal policy of government-to-government relations with Indian Tribes; 
and
    (ii) Strengthens the Federal policy of Indian self-determination.
    (b) According to section 3 of Pub. L. 106-260, Congress has declared 
its policy to:
    (1) Permanently establish and implement Tribal Self-Governance 
within the DHHS;
    (2) Call for full cooperation from the DHHS and its constituent 
agencies in the implementation of Tribal Self-Governance to--
    (i) Enable the United States to maintain and improve its unique and 
continuing relationship with, and responsibility to, Indian Tribes;
    (ii) Permit each Indian Tribe to choose the extent of its 
participation in self-governance in accordance with the provisions of 
the ISDA relating to the provision of Federal services to Indian Tribes;
    (iii) Ensure the continuation of the trust responsibility of the 
United States to Indian Tribes and Indians;
    (iv) Affirm and enable the United States to fulfill its obligations 
to the Indian Tribes under treaties and other laws;
    (v) Strengthen the government-to-government relationship between the 
United States and Indian Tribes through direct and meaningful 
consultation with all Tribes;
    (vi) Permit an orderly transition from Federal domination of 
programs and services to provide Indian Tribes with meaningful 
authority, control, funding, and discretion to plan, conduct, redesign, 
and administer PSFAs that meet the needs of the individual Tribal 
communities;
    (vii) Provide for a measurable parallel reduction in the Federal 
bureaucracy as programs, services, functions, and activities (or portion 
thereof) are assumed by Indian Tribes;

[[Page 776]]

    (viii) Encourage the Secretary to identify all PSFAs of the DHHS 
that may be managed by an Indian Tribe under this Act and to assist 
Indian Tribes in assuming responsibility for such PSFAs; and
    (ix) Provide Indian Tribes with the earliest opportunity to 
administer PSFAs from throughout the Department.
    (c) According to section 512(a) of the Act [25 U.S.C. 458aaa-11(a)], 
Congress has declared, except as otherwise provided by law, the 
Secretary shall interpret all Federal laws, Executive Orders, and 
regulations in a manner that will facilitate:
    (1) The inclusion of PSFAs and funds associated therewith, in the 
agreements entered into under this section;
    (2) The implementation of compacts and funding agreements entered 
into under this title; and
    (3) The achievement of Tribal health goals and objectives.
    (d) According to section 512(f) of the Act [25 U.S.C. 458aaa-11(f)], 
Congress has declared that each provision of Title V and each provision 
of a compact or funding agreement shall be liberally construed for the 
benefit of the Indian Tribe participating in and any ambiguity shall be 
resolved in favor of the Indian Tribe.
    (e) According to section 515(b) of the Act [25 U.S.C. 458aaa-14(b)], 
Congress has declared that nothing in the Act shall be construed to 
diminish in any way the trust responsibility of the United States to 
Indian Tribes and individual Indians that exists under treaties, 
Executive orders, or other laws and court decisions.
    (f) According to section 507(g) of the Act [25 U.S.C. 458aaa-6(g)], 
Congress has declared that the Secretary is prohibited from waiving, 
modifying, or diminishing in any way the trust responsibility of the 
United States with respect to Indian Tribes and individual Indians that 
exists under treaties, Executive orders, other laws, or court decisions.
    (g) According to section 515(c) of the Act [25 U.S.C. 458aaa-14(c)], 
Congress has declared that the Indian Health Service (IHS) under this 
Act shall neither bill nor charge those Indians who may have the 
economic means to pay for services, nor require any Tribe to do so. 
Nothing in this section shall impair the right of the IHS or an Indian 
Tribe to seek recovery from third parties section 206 of the Indian 
Health Care Improvement Act [25 U.S.C. 1621e], under section 1 of the 
Federal Medical Care Recovery Act [42 U.S.C. 2651], and any other 
applicable Federal, State or Tribal law.
    (h) According to section 507(e) of the Act [25 U.S.C. 458aaa-6(e)], 
Congress has declared that in the negotiation of compacts and funding 
agreements the Secretary shall at all times negotiate in good faith to 
maximize implementation of the self-governance policy. The Secretary 
shall carry out Title V in a manner that maximizes the policy of Tribal 
Self-Governance, and in a manner consistent with the purposes specified 
in section 3 of the Act.



Sec. 137.3  Effect on existing Tribal rights.

    Nothing in this part shall be construed as:
    (a) Affecting, modifying, diminishing, or otherwise impairing the 
sovereign immunity from suit enjoyed by Indian Tribes;
    (b) Terminating, waiving, modifying, or reducing the trust 
responsibility of the United States to the Indian Tribe(s) or individual 
Indians. The Secretary must act in good faith in upholding this trust 
responsibility;
    (c) Mandating an Indian Tribe to apply for a compact(s) or grant(s) 
as described in the Act; or
    (d) Impeding awards by other Departments and agencies of the United 
States to Indian Tribes to administer Indian programs under any other 
applicable law.



Sec. 137.4  May Title V be construed to limit or reduce in any way the funding 

for any program, project, or activity serving an Indian Tribe under this or 

other applicable Federal law?

    No, if an Indian Tribe alleges that a compact or funding agreement 
violates section 515(a) of the Act [25 U.S.C. 458aaa-14(a)], the Indian 
Tribe may apply the provisions of section 110 of the Act [25 U.S.C. 
450m-1].

[[Page 777]]



Sec. 137.5  Effect of these regulations on Federal program guidelines, manual, 

or policy directives.

    Unless expressly agreed to by the Self-Governance Tribe in the 
compact or funding agreement, the Self-Governance Tribe shall not be 
subject to any agency circular, policy, manual, guidance, or rule 
adopted by the IHS, except for the eligibility provisions of section 
105(g) of the Act [25 U.S.C. 450j(g)] and regulations promulgated under 
section 517 of the Act [25 U.S.C. 458aaa-16(e)].



Sec. 137.6  Secretarial policy.

    In carrying out Tribal self-governance under Title V, the Secretary 
recognizes the right of Tribes to self-government and supports Tribal 
sovereignty and self-determination. The Secretary recognizes a unique 
legal relationship with Tribal governments as set forth in the 
Constitution of the United States, treaties, statutes, Executive Orders, 
and court decisions. The Secretary supports the self-determination 
choices of each Tribe and will continue to work with all Tribes on a 
government-to-government basis to address issues concerning Tribal self-
determination.



                          Subpart B_Definitions



Sec. 137.10  Definitions.

    Unless otherwise provided in this part:
    Act means sections 1 through 9 and Titles I and V of the Indian 
Self-Determination and Education Assistance Act of 1975, Public Law 93-
638, as amended.
    Appeal means a request by an Indian Tribe for an administrative 
review of an adverse decision by the Secretary.
    Compact means a legally binding and mutually enforceable written 
agreement, including such terms as the parties intend shall control year 
after year, that affirms the government-to-government relationship 
between a Self-Governance Tribe and the United States.
    Congressionally earmarked competitive grants as used in section 
505(b)(1) of the Act [25 U.S.C. 458aaa-4(b)(1)] means statutorily 
mandated grants as defined in this section and used in subpart H of this 
part.
    Contract means a self-determination contract as defined in section 
4(j) of the Act [25 U.S.C. 450b].
    Days means calendar days; except where the last day of any time 
period specified in these regulations falls on a Saturday, Sunday, or a 
Federal holiday, the period shall carry over to the next business day 
unless otherwise prohibited by law.
    Department means the Department of Health and Human Services.
    Director means the Director of the Indian Health Service.
    Funding agreement means a legally binding and mutually enforceable 
written agreement that identifies the PSFAs that the Self-Governance 
Tribe will carry out, the funds being transferred from the Service Unit, 
Area, and Headquarter's levels in support of those PSFAs and such other 
terms as are required, or may be agreed upon, pursuant to Title V.
    Gross mismanagement means a significant, clear, and convincing 
violation of a compact, funding agreement, or regulatory or statutory 
requirements applicable to Federal funds transferred to an Indian Tribe 
by a compact or funding agreement that results in a significant 
reduction of funds available for the PSFAs assumed by a Self-Governance 
Tribe.
    IHS means Indian Health Service.
    IHS discretionary grant means a grant established by IHS pursuant to 
the IHS' discretionary authority without any specific statutory 
directive.
    Indian means a person who is a member of an Indian Tribe.
    Indian Tribe means any Indian Tribe, band, nation, or other 
organized group, or community, including pueblos, rancherias, colonies, 
and any Alaska Native Village, or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act, which is recognized as eligible for the special programs 
and services provided by the United States to Indians because of their 
status as Indians; provided that in any case in which an Indian Tribe 
has authorized another Indian Tribe, an inter-Tribal consortium, or a 
Tribal organization to

[[Page 778]]

plan for or carry out programs, services, functions, or activities (or 
portions thereof) on its behalf under Title V, the authorized Indian 
Tribe, inter-Tribal consortium or Tribal organization shall have the 
rights and responsibilities of the authorizing Indian Tribe (except as 
otherwise provided in the authorizing resolution or in this part). In 
such event, the term ``Indian Tribe'' as used in this part includes such 
other authorized Indian Tribe, inter-Tribal consortium, or Tribal 
organization.
    Indirect costs shall have the same meaning as it has in 25 CFR 900.6 
as applied to compacts, funding agreements and construction project 
agreements entered into under this part.
    Inherent Federal functions means those Federal functions which 
cannot legally be delegated to Indian Tribes.
    Inter-Tribal consortium means a coalition of two or more separate 
Indian Tribes that join together for the purpose of participating in 
self-governance, including Tribal organizations.
    OMB means the Office of Management and Budget.
    PSFA means programs, services, functions, and activities (or 
portions thereof).
    Real property means any interest in land together with the 
improvements, structures, and fixtures and appurtenances thereto.
    Reassumption means rescission, in whole or part, of a funding 
agreement and assuming or resuming control or operation of the PSFAs by 
the Secretary without consent of the Self-Governance Tribe.
    Retained Tribal share means those funds that are available as a 
Tribal share but which the Self-Governance Tribe elects to leave with 
the IHS to administer.
    Retrocession means the voluntary return to the Secretary of a self-
governance program, service, function or activity (or portion thereof) 
for any reason, before or on the expiration of the term of the funding 
agreement.
    Secretary means the Secretary of Health and Human Services (and his 
or her respective designees.)
    Self-Governance means the program of self-governance established 
under section 502 of the Act [25 U.S.C. 458aaa-1].
    Self-Governance Tribe means an Indian Tribe participating in the 
program of self-governance pursuant to section 503(a) of the Act [25 
U.S.C. 458aaa-2(a)] or selected and participating in self-governance 
pursuant to section 503(b) of the Act [25 U.S.C. 458aaa-2(b)].
    Statutorily mandated grant as used in this section and subpart F of 
this part means a grant specifically designated in a statute for a 
defined purpose.
    Title I means sections 1 through 9 and Title I of the Indian Self-
Determination and Education Assistance Act of 1975, Pub. L. 93-638, as 
amended.
    Title V means Title V of the Indian Self-Determination and Education 
Assistance Act of 1975, Pub. L. 93-638, as amended.
    Tribal organization means the recognized governing body of any 
Indian Tribe; any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities; provided, that 
in any case where a contract or compact is entered into, or a grant is 
made, to an organization to perform services benefitting more than one 
Indian Tribe, the approval of each such Indian Tribe shall be a 
prerequisite to the entering into or making of such contract, compact, 
or grant.
    Tribal Self-Governance Advisory Committee means the Committee 
established by the Director of IHS that consists of Tribal 
representatives from each of the IHS Areas participating in Self-
Governance, and that provides advocacy and policy guidance for 
implementation of Tribal Self-Governance within IHS.
    Tribal share means an Indian Tribe's portion of all funds and 
resources that support secretarial PSFAs that are not required by the 
Secretary for the performance of inherent Federal functions.

[[Page 779]]



     Subpart C_Selection of Indian Tribes for Participation in Self-
                               Governance



Sec. 137.15  Who may participate in Tribal Self-Governance?

    Those Self-Governance Tribes described in 503(a) of the Act [25 
U.S.C. 458aaa-2(a)] participating in the Title III Tribal Self-
Governance Demonstration Project and up to 50 additional Indian Tribes 
per year that meet the criteria in Sec. 137.18 may participate in self-
governance.



Sec. 137.16  What if more than 50 Indian Tribes apply to participate in self-

governance?

    The first Indian Tribes who apply and are determined to be eligible 
shall have the option to participate in self-governance. Any Indian 
Tribe denied participation due to the limitation in number of Indian 
Tribes that may take part is entitled to participate in the next fiscal 
year, provided the Indian Tribe continues to meet the financial 
stability and financial management capacity requirements.



Sec. 137.17  May more than one Indian Tribe participate in the same compact 

and/or funding agreement?

    Yes, Indian Tribes may either:
    (a) Each sign the same compact and/or funding agreement, provided 
that each one meets the criteria to participate in self-governance and 
accepts legal responsibility for all financial and administrative 
decisions made under the compact or funding agreement, or
    (b) Authorize another Indian Tribe to participate in self-governance 
on their behalf.



Sec. 137.18  What criteria must an Indian Tribe satisfy to be eligible to 

participate in self-governance?

    To be eligible to participate in self-governance, an Indian Tribe 
must have:
    (a) Successfully completed the planning phase described in Sec. 
137.20;
    (b) Requested participation in self-governance by resolution or 
other official action by the governing body of each Indian Tribe to be 
served; and
    (c) Demonstrated, for three fiscal years, financial stability and 
financial management capability.

                             Planning Phase



Sec. 137.20  What is required during the planning phase?

    The planning phase must be conducted to the satisfaction of the 
Indian Tribe and must include:
    (a) legal and budgetary research; and
    (b) internal Tribal government planning and organizational 
preparation relating to the administration of health programs.



Sec. 137.21  How does an Indian Tribe demonstrate financial stability and 

financial management capacity?

    The Indian Tribe provides evidence that, for the three years prior 
to participation in self-governance, the Indian Tribe has had no 
uncorrected significant and material audit exceptions in the required 
annual audit of the Indian Tribe's self-determination contracts or self-
governance funding agreements with any Federal agency.



Sec. 137.22  May the Secretary consider uncorrected significant and material 

audit exceptions identified regarding centralized financial and administrative 

functions?

    Yes, if the Indian Tribe chooses to centralize its self-
determination or self-governance financial and administrative functions 
with non-self-determination or non-self-governance financial and 
administrative functions, such as personnel, payroll, property 
management, etc., the Secretary may consider uncorrected significant and 
material audit exceptions related to the integrity of a cross-cutting 
centralized function in determining the Indian Tribe's eligibility for 
participation in the self-governance program.



Sec. 137.23  For purposes of determining eligibility for participation in 

self-governance, may the Secretary consider any other information regarding 

the Indian Tribe's financial stability and financial management capacity?

    No, meeting the criteria set forth in Sec. Sec. 137.21 and 137.22, 
shall be conclusive evidence of the required stability and

[[Page 780]]

capability to participate in self-governance.



Sec. 137.24  Are there grants available to assist the Indian Tribe to meet the 

requirements to participate in self-governance?

    Yes, any Indian Tribe may apply, as provided in Sec. 137.25, for a 
grant to assist it to:
    (a) Plan to participate in self-governance; and
    (b) Negotiate the terms of the compact and funding agreement between 
the Indian Tribe and Secretary.



Sec. 137.25  Are planning and negotiation grants available?

    Subject to the availability of funds, IHS will annually publish a 
notice of the number of planning and negotiation grants available, an 
explanation of the application process for such grants, and the criteria 
for award. Questions may be directed to the Office of Tribal Self-
Governance.



Sec. 137.26  Must an Indian Tribe receive a planning or negotiation grant to 

be eligible to participate in self-governance?

    No, an Indian Tribe may use other resources to meet the planning 
requirement and to negotiate.



                    Subpart D_Self-Governance compact



Sec. 137.30  What is a self-governance compact?

    A self-governance compact is a legally binding and mutually 
enforceable written agreement that affirms the government-to-government 
relationship between a Self-Governance Tribe and the United States.



Sec. 137.31  What is included in a compact?

    A compact shall include general terms setting forth the government-
to-government relationship consistent with the Federal Government's 
trust responsibility and statutory and treaty obligations to Indian 
Tribes and such other terms as the parties intend to control from year 
to year.



Sec. 137.32  Is a compact required to participate in self-governance?

    Yes, Tribes must have a compact in order to participate in self-
governance.



Sec. 137.33  May an Indian Tribe negotiate a funding agreement at the same 

time it is negotiating a compact?

    Yes, at an Indian Tribe's option, a funding agreement may be 
negotiated prior to or at the same time as the negotiation of a compact.



Sec. 137.34  May a funding agreement be executed without negotiating a 

compact?

    No, a compact is a separate document from a funding agreement, and 
the compact must be executed before or at the same time as a funding 
agreement.



Sec. 137.35  What is the term of a self-governance compact?

    Upon approval and execution of a self-governance compact, the 
compact remains in effect for so long as permitted by Federal law or 
until terminated by mutual written agreement or retrocession or 
reassumption of all PSFAs.



                      Subpart E_Funding Agreements



Sec. 137.40  What is a funding agreement?

    A funding agreement is a legally binding and mutually enforceable 
written agreement that identifies the PSFAs that the Self-Governance 
Tribe will carry out, the funds being transferred from service unit, 
area and headquarters levels in support of those PSFAs and such other 
terms as are required or may be agreed upon pursuant to Title V.



Sec. 137.41  What PSFAs must be included in a funding agreement?

    At the Self-Governance Tribe's option, all PSFAs identified in and 
in accordance with section 505(b) of the Act must be included in a 
funding agreement, subject to section 507(c) of the Act [25 U.S.C. 
458aaa-6(c)].



Sec. 137.42  What Tribal shares may be included in a funding agreement?

    All Tribal shares identified in sections 505(b)(1) [25 U.S.C. 
458aaa-4(b)(1)]

[[Page 781]]

and 508(c) of the Act [25 U.S.C. 458aaa-7(c)] may be included in a 
funding agreement, including Tribal shares of IHS discretionary grants.



Sec. 137.43  May a Tribe negotiate and leave funds with IHS for retained 

services?

    Yes, at the discretion of the Self-Governance Tribe, Tribal shares 
may be left, in whole or in part, with IHS for certain PSFAs. These 
shares are referred to as a ``retained Tribal shares.''

                      Terms in a Funding Agreement



Sec. 137.45  What terms must be included in a funding agreement?

    A funding agreement must include terms required under section 505(d) 
of the Act [25 U.S.C. 458aaa-4(d)] and provisions regarding mandatory 
reporting and reassumption pursuant to section 507(a) of the Act [25 
U.S.C. 458aaa-6(a)], unless those provisions have been included in a 
compact.



Sec. 137.46  May additional terms be included in a funding agreement?

    Yes, at the Self-Governance Tribe's option, additional terms may be 
included as set forth in sections 506 [25 U.S.C. 458aaa-5] and 516(b) of 
the Act [25 U.S.C. 458aaa-15(b)]. In addition, any other terms to which 
the Self-Governance Tribe and the Secretary agree may be included.



Sec. 137.47  Do any provisions of Title I apply to compacts, funding 

agreements, and construction project agreements negotiated under Title V of 

the Act?

    (a) Yes, the provisions of Title I listed in section 516(a) of the 
Act [25 U.S.C. 458aaa-15(a)] and section 314 of Pub. L. 101-512, as 
amended, [25 U.S.C. 450f note] mandatorily apply to a compact, funding 
agreement and construction project agreement to the extent they are not 
in conflict with Title V. In addition, at the option of a Self-
Governance Tribe, under section 516(b) of the Act [25 U.S.C. 458aaa-
15(b)] any provisions of Title I may be included in the compact or 
funding agreement.
    (b) The provisions of Title I referenced in section 516(a) of the 
Act [25 U.S.C. 458aaa-15(a)] are sections 5 [25 U.S.C. 450c], 6 [25 
U.S.C. 450d], 7 [25 U.S.C. 450e], 102(c) and (d) [25 U.S.C. 450f(c) and 
(d)], 104 [25 U.S.C. 450i], 105(k) and (l) [25 U.S.C. 450j(k) and (l)], 
106(a) through (k) [25 U.S.C. 450j-1(a) through (k)], and 111 [25 U.S.C. 
450n] of the Act.



Sec. 137.48  What is the effect of incorporating a Title I provision into a 

compact or funding agreement?

    The incorporated Title I provision shall have the same force and 
effect as if it were set out in full in Title V.



Sec. 137.49  What if a Self-Governance Tribe requests such incorporation at 

the negotiation stage of a compact or funding agreement?

    In that event, such incorporation shall be deemed effective 
immediately and shall control the negotiation and resulting compact and 
funding agreement.

                       Term of a Funding Agreement



Sec. 137.55  What is the term of a funding agreement?

    A funding agreement shall have the term mutually agreed to by the 
parties. Absent notification from an Indian Tribe that it is withdrawing 
or retroceding the operation of one or more PSFAs identified in the 
funding agreement, the funding agreement shall remain in full force and 
effect until a subsequent funding agreement is executed.



Sec. 137.56  Does a funding agreement remain in effect after the end of its 

term?

    Yes, the provisions of a funding agreement, including all recurring 
increases received and continuing eligibility for other increases, 
remain in full force and effect until a subsequent funding agreement is 
executed. Upon execution of a subsequent funding agreement, the 
provisions of such a funding agreement are retroactive to the end of the 
term of the preceding funding agreement.



Sec. 137.57  How is a funding agreement amended during the effective period of 

the funding agreement?

    A funding agreement may be amended by the parties as provided for in 
the

[[Page 782]]

funding agreement, Title V, or this part.



                  Subpart F_Statutorily Mandated Grants



Sec. 137.60  May a statutorily mandated grant be added to a funding agreement?

    Yes, in accordance with section 505(b)(2) of the Act [25 U.S.C. 
458aaa-4(b)(2)], a statutorily mandated grant may be added to the 
funding agreement after award.



Sec. 137.65  May a Self-Governance Tribe receive statutorily mandated grant 

funding in an annual lump sum advance payment?

    Yes, grant funds shall be added to the funding agreement as an 
annual lump sum advance payment after the grant is awarded.



Sec. 137.66  May a Self-Governance Tribe keep interest earned on statutorily 

mandated grant funds?

    Yes, a Self-Governance Tribe may keep Interest Earned on Statutorily 
Mandated Grant Funds.



Sec. 137.67  How may a Self-Governance Tribe use interest earned on 

statutorily mandated grant funds?

    Interest earned on such funds must be used to enhance the grant 
program including allowable administrative costs.



Sec. 137.68  May funds from a statutorily mandated grant added to a funding 

agreement be reallocated?

    No, unless it is permitted under the statute authorizing the grant 
or under the terms and conditions of the grant award, funds from a 
statutorily mandated grant may not be reallocated.



Sec. 137.69  May a statutorily mandated grant program added to a funding 

agreement be redesigned?

    No, unless it is permitted under the statute authorizing the grant 
or under the terms and conditions of the grant award, a program added to 
a funding agreement under a statutorily mandated grant may not be 
redesigned.



Sec. 137.70  Are the reporting requirements different for a statutorily 

mandated grant program added to a funding agreement?

    Yes, the reporting requirements for a statutorily mandated grant 
program added to a funding agreement are subject to the terms and 
conditions of the grant award.



Sec. 137.71  May the Secretary and the Self-Governance Tribe develop separate 

programmatic reporting requirements for statutorily mandated grants?

    Yes, the Secretary and the Self-Governance Tribe may develop 
separate programmatic reporting requirements for statutorily mandated 
grants.



Sec. 137.72  Are Self-Governance Tribes and their employees carrying out 

statutorily mandated grant programs added to a funding agreement covered by 

the Federal Tort Claims Act (FTCA)?

    Yes, Self-Governance Tribes and their employees carrying out 
statutorily mandated grant programs are added to a funding agreement 
covered by the FTCA. Regulations governing coverage under the FTCA are 
published at 25 CFR Part 900, Subpart M.



Sec. 137.73  What provisions of Title V apply to statutorily mandated grants 

added to the funding agreement?

    None of the provisions of Title V apply.



                            Subpart G_Funding

                                 General



Sec. 137.75  What funds must the Secretary transfer to a Self-Governance Tribe 

in a funding agreement?

    Subject to the terms of any compact or funding agreement, the 
Secretary must transfer to a Tribe all funds provided for in the funding 
agreement, pursuant to section 508(c) of the Act [25 U.S.C. 458aaa-7(c)] 
and Sec. 137.80. The Secretary shall provide funding for periods 
covered by joint resolution adopted by Congress making continuing 
appropriations, to the extent permitted by such resolutions.

[[Page 783]]



Sec. 137.76  When must the Secretary transfer to a Self-Governance Tribe funds 

identified in a funding agreement?

    When a funding agreement requires an annual transfer of funding to 
be made at the beginning of a fiscal year, or requires semiannual or 
other periodic transfers of funding to be made commencing at the 
beginning of a fiscal year, the first such transfer shall be made not 
later than 10 days after the apportionment of such funds by the OMB to 
the Department, unless the funding agreement provides otherwise.



Sec. 137.77  When must the Secretary transfer funds that were not paid as part 

of the initial lump sum payment?

    The Secretary must transfer any funds that were not paid in the 
initial lump sum payment within 10 days after distribution methodologies 
and other decisions regarding payment of those funds have been made by 
the IHS.



Sec. 137.78  May a Self-Governance Tribe negotiate a funding agreement for a 

term longer or shorter than one year?

    Yes, upon Tribal request, the Secretary must negotiate a funding 
agreement for a term longer or shorter than a year. All references in 
these regulations to funding agreements shall also include funding 
agreements for a term longer or shorter than one year.



Sec. 137.79  What funds must the Secretary include in a funding agreement?

    The Secretary must include funds in a funding agreement in an amount 
equal to the amount that the Self-Governance Tribe would have been 
entitled to receive in a contract under Title I, including amounts for 
direct program costs specified under section 106(a)(1) of the Act and 
amounts for contract support costs specified under section 106(a) (2), 
(3), (5), and (6) of the Act [25 U.S.C. 450j-1(a)(2), (3), (5) and (6)]. 
In addition, the Secretary shall include any funds that are specifically 
or functionally related to the provision by the Secretary of services 
and benefits to the Self-Governance Tribe or its members, all without 
regard to the organizational level within the Department where such 
functions are carried out.

                              Prohibitions



Sec. 137.85  Is the Secretary prohibited from failing or refusing to transfer 

funds that are due to a Self-Governance Tribe under Title V?

    Yes, sections 508(d)(1)(A) and (B) of the Act [25 U.S.C. 458aaa-
7(d)(1)(A) and (B)] expressly prohibit the Secretary from:
    (a) Failing or refusing to transfer to a Self-Governance Tribe its 
full share of any central, headquarters, regional, area, or service unit 
office or other funds due under Title V, except as required by Federal 
law, and
    (b) From withholding portions of such funds for transfer over a 
period of years.



Sec. 137.86  Is the Secretary prohibited from reducing the amount of funds 

required under Title V to make funding available for self-governance 

monitoring or administration by the Secretary?

    Yes, the Secretary is prohibited from reducing the amount of funds 
required under Title V to make funding available for self-governance 
monitoring or administration.



Sec. 137.87  May the Secretary reduce the amount of funds due under Title V in 

subsequent years?

    No, in accordance with section 508(d)(1)(C)(ii) of the Act [25 
U.S.C. 458aaa-7(d)(1)(C)(ii)], the Secretary is prohibited from reducing 
the amount of funds required under Title V in subsequent years, except 
pursuant to:
    (a) A reduction in appropriations from the previous fiscal year for 
the program or function to be included in a compact or funding 
agreement;
    (b) A Congressional directive in legislation or accompanying report;
    (c) A Tribal authorization;
    (d) A change in the amount of pass-through funds subject to the 
terms of the funding agreement; or
    (e) Completion of a project, activity, or program for which such 
funds were provided.

[[Page 784]]



Sec. 137.88  May the Secretary reduce the amount of funds required under Title 

V to pay for Federal functions, including Federal pay costs, Federal employee 

retirement benefits, automated data processing, technical 

assistance, and monitoring of activities under the Act?

    No, the Secretary may not reduce the amount of funds required under 
Title V to pay for Federal functions, including Federal pay costs, 
Federal employee retirement benefits, automated data processing, 
technical assistance, and monitoring of activities under the Act.



Sec. 137.89  May the Secretary reduce the amount of funds required under Title 

V to pay for costs of Federal personnel displaced by contracts under Title I 

or Self-Governance under Title V?

    No, the Secretary may not reduce the amount of funds required under 
Title V to pay for costs of Federal personnel displaced by contracts 
under Title I or Self-Governance under Title V.



Sec. 137.90  May the Secretary increase the funds required under the funding 

agreement?

    Yes, the Secretary may increase the funds required under the funding 
agreement. However, the Self-Governance Tribe and the Secretary must 
agree to any transfer of funds to the Self-Governance Tribe unless 
otherwise provided for in the funding agreement.

             Acquisition of Goods and Services From the IHS



Sec. 137.95  May a Self-Governance Tribe purchase goods and services from the 

IHS on a reimbursable basis?

    Yes, a Self-Governance Tribe may choose to purchase from the IHS any 
goods and services transferred by the IHS to a Self-Governance Tribe in 
a compact or funding agreement. The IHS shall provide any such goods and 
services to the Self-Governance Tribe, on a reimbursable basis, 
including payment in advance with subsequent adjustment.

                           Prompt Payment Act



Sec. 137.96  Does the Prompt Payment Act apply to funds transferred to a Self-

Governance Tribe in a compact or funding agreement?

    Yes, the Prompt Payment Act, 39 U.S.C. section 3901 et seq., applies 
to the transfer of all funds due under a compact or funding agreement 
authorized pursuant to Title V. See also Sec. 137.76 through 137.78 and 
137.341(f).

                  Interest or Other Income on Transfers



Sec. 137.100  May a Self-Governance Tribe retain and spend interest earned on 

any funds paid under a compact or funding agreement?

    Yes, pursuant to section 508(h) of the Act [25 U.S.C. 458aaa-7(h)], 
a Self-Governance Tribe may retain and spend interest earned on any 
funds paid under a compact or funding agreement.



Sec. 137.101  What standard applies to a Self-Governance Tribe's management of 

funds paid under a compact or funding agreement?

    A Self-Governance Tribe is under a duty to invest and manage the 
funds as a prudent investor would, in light of the purpose, terms, 
distribution requirements, and provisions in the compact or funding 
agreement and Title V. This duty requires the exercise of reasonable 
care, skill, and caution, and is to be applied to investments not in 
isolation but in the context of the investment portfolio and as a part 
of an overall investment strategy, which should incorporate risk and 
return objectives reasonably suitable to the Self-Governance Tribe. In 
making and implementing investment decisions, the Self-Governance Tribe 
has a duty to diversify the investments unless, under the circumstances, 
it is prudent not to do so. In addition, the Self-Governance Tribe must:
    (a) Conform to fundamental fiduciary duties of loyalty and 
impartiality;
    (b) Act with prudence in deciding whether and how to delegate 
authority and in the selection and supervision of agents; and
    (c) Incur only costs that are reasonable in amount and appropriate 
to the

[[Page 785]]

investment responsibilities of the Self-Governance Tribe.

                           Carryover of Funds



Sec. 137.105  May a Self-Governance Tribe carryover from one year to the next 

any funds that remain at the end of the funding agreement?

    Yes, pursuant to section 508(i) of the Act, a Self-Governance Tribe 
may carryover from one year to the next any funds that remain at the end 
of the funding agreement.

                             Program Income



Sec. 137.110  May a Self-Governance Tribe retain and expend any program income 

earned pursuant to a compact and funding agreement?

    All Medicare, Medicaid, or other program income earned by a Self-
Governance Tribe shall be treated as supplemental funding to that 
negotiated in the funding agreement. The Self-Governance Tribe may 
retain all such income and expend such funds in the current year or in 
future years except to the extent that the Indian Health Care 
Improvement Act (25 U.S.C. 1601 et seq.) provides otherwise for Medicare 
and Medicaid receipts. Such funds shall not result in any offset or 
reduction in the amount of funds the Self-Governance Tribe is authorized 
to receive under its funding agreement in the year the program income is 
received or for any subsequent fiscal year.

                           Limitation of Costs



Sec. 137.115  Is a Self-Governance Tribe obligated to continue performance 

under a compact or funding agreement if the Secretary does not transfer 

sufficient funds?

    No, if a Self-Governance Tribe believes that the total amount of 
funds provided for a specific PSFA in a compact or funding agreement is 
insufficient, the Self-Governance Tribe must provide reasonable written 
notice of such insufficiency to the Secretary. If the Secretary does not 
increase the amount of funds transferred under the funding agreement in 
a quantity sufficient for the Self-Governance Tribe to complete the 
PSFA, as jointly determined by the Self-Governance Tribe and the 
Secretary, the Self-Governance Tribe may suspend performance of the PSFA 
until such time as additional funds are transferred.

                           Stable Base Budget



Sec. 137.120  May a Self-Governance Tribe's funding agreement provide for a 

stable base budget?

    Yes, at the option of a Self-Governance Tribe, a funding agreement 
may provide for a stable base budget, specifying the recurring funds to 
be transferred to a Self-Governance Tribe for a period specified in the 
funding agreement.



Sec. 137.121  What funds may be included in a stable base budget amount?

    The stable base budget amount may include, at the option of the 
Self-Governance Tribe,
    (a) Recurring funds available under section 106(a) of the Act [25 
U.S.C. 450j-1] ;
    (b) Recurring Tribal shares; and
    (c) Any recurring funds for new or expanded PSFAs not previously 
assumed by the Self-Governance Tribe.



Sec. 137.122  May a Self-Governance Tribe with a stable base budget receive 

other funding under its funding agreement?

    Yes, the funding agreement may include non-recurring funds, other 
recurring funds, and other funds the Self-Governance Tribe is entitled 
to include in a funding agreement that are not included in the stable 
base budget amount.



Sec. 137.123  Once stable base funding is negotiated, do funding amounts 

change from year to year?

    Stable base funding amounts are subject to adjustment:
    (a) Annually only to reflect changes in Congressional appropriations 
by sub-sub activity excluding earmarks;
    (b) By mutual agreement of the Self-Governance Tribe and the 
Secretary; or
    (c) As a result of full or partial retrocession or reassumption.

[[Page 786]]



Sec. 137.124  Does the effective period of a stable base budget have to be the 

same as the term of the funding agreement?

    No, the Self-Governance Tribe may provide in its funding agreement 
that the effective period of the stable base budget will be either 
longer or shorter than the term of the funding agreement.



                          Subpart H_Final Offer



Sec. 137.130  What is covered by this subpart?

    This subpart explains the final offer process provided by the 
statute for resolving, within a specific timeframe, disputes that may 
develop in negotiation of compacts, funding agreements, or amendments 
thereof.



Sec. 137.131  When should a final offer be submitted?

    A final offer should be submitted when the Secretary and an Indian 
Tribe are unable to agree, in whole or in part, on the terms of a 
compact or funding agreement (including funding levels).



Sec. 137.132  How does the Indian Tribe submit a final offer?

    (a) A written final offer should be submitted:
    (1) During negotiations to the agency lead negotiator or
    (2) Thereafter to the Director.
    (b) The document should be separate from the compact, funding 
agreement, or amendment and clearly identified as a ``Final Offer.''



Sec. 137.133  What does a final offer contain?

    A final offer contains a description of the disagreement between the 
Secretary and the Indian Tribe and the Indian Tribe's final proposal to 
resolve the disagreement.



Sec. 137.134  When does the 45 day review period begin?

    The 45 day review period begins from the date the IHS receives the 
final offer. Proof of receipt may include a date stamp, or postal return 
receipt, or hand delivery.



Sec. 137.135  May the Secretary request and obtain an extension of time of the 

45 day review period?

    Yes, the Secretary may request an extension of time before the 
expiration of the 45 day review period. The Indian Tribe may either 
grant or deny the Secretary's request for an extension. To be effective, 
any grant of extension of time must be in writing and be signed by the 
person authorized by the Indian Tribe to grant the extension before the 
expiration of the 45 day review period.



Sec. 137.136  What happens if the agency takes no action within the 45 day 

review period (or any extensions thereof)?

    The final offer is accepted automatically by operation of law.



Sec. 137.137  If the 45 day review period or extension thereto, has expired, 

and the Tribes offer is deemed accepted by operation of law, are there any 

exceptions to this rule?

    No, there are no exceptions to this rule if the 45 day review period 
or extension thereto, has expired, and the Tribe's offer is deemed 
accepted by operation of law.



Sec. 137.138  Once the Indian Tribe's final offer has been accepted or deemed 

accepted by operation of law, what is the next step?

    After the Indian Tribe's final offer is accepted or deemed accepted, 
the terms of the Indian Tribe's final offer and any funds included 
therein, shall be added to the funding agreement or compact within 10 
days of the acceptance or the deemed acceptance.

                        Rejection of Final Offers



Sec. 137.140  On what basis may the Secretary reject an Indian Tribe's final 

offer?

    The Secretary may reject an Indian Tribe's final offer for one of 
the following reasons:
    (a) the amount of funds proposed in the final offer exceeds the 
applicable funding level to which the Indian Tribe is entitled under the 
Act;
    (b) the PSFA that is the subject of the final offer is an inherent 
Federal

[[Page 787]]

function that cannot legally be delegated to an Indian Tribe;
    (c) the Indian Tribe cannot carry out the PSFA in a manner that 
would not result in significant danger or risk to the public health; or
    (d) the Indian Tribe is not eligible to participate in self-
governance under section 503 of the Act [25 U.S.C. 458aaa-2].



Sec. 137.141  How does the Secretary reject a final offer?

    The Secretary must reject a final offer by providing written notice 
to the Indian Tribe based on the criteria in Sec. 137.140 not more than 
45 days after receipt of a final offer, or within a longer time period 
as agreed by the Self-Governance Tribe consistent with this subpart.



Sec. 137.142  What is a ``significant danger'' or ``risk'' to the public 

health?

    A significant danger or risk is determined on a case-by-case basis 
in accordance with section 507(c) of the Act [25 U.S.C. 458aaa-6(c)].



Sec. 137.143  How is the funding level to which the Indian Tribe is entitled 

determined?

    The Secretary must provide funds under a funding agreement in an 
amount equal to the amount that the Indian Tribe would have been 
entitled to receive under self-determination contracts under this Act, 
including amounts for direct program costs specified under section 
106(a)(1) of the Act [25 U.S.C. 450j-1(a)(1)] and amounts for contract 
support costs specified under section 106(a) (2), (3), (5), and (6) of 
the Act [25 U.S.C. 450j-1(a)(2), (3), (5) and (6)], including any funds 
that are specifically or functionally related to the provision by the 
Secretary of services and benefits to the Indian Tribe or its members, 
all without regard to the organizational level within the Department 
where such functions are carried out.



Sec. 137.144  Is technical assistance available to an Indian Tribe to avoid 

rejection of a final offer?

    Yes, upon receiving a final offer, the Secretary must offer any 
necessary technical assistance, and must share all relevant information 
with the Indian Tribe in order to avoid rejection of a final offer.



Sec. 137.145  If the Secretary rejects a final offer, is the Secretary 

required to provide the Indian Tribe with technical assistance?

    Yes, the Secretary must offer and, if requested by the Indian Tribe, 
provide additional technical assistance to overcome the stated grounds 
for rejection.



Sec. 137.146  If the Secretary rejects all or part of a final offer, is the 

Indian Tribe entitled to an appeal?

    Yes, the Indian Tribe is entitled to appeal the decision of the 
Secretary, with an agency hearing on the record, and the right to engage 
in full discovery relevant to any issue raised in the matter. The 
procedures for appeals are found in subpart P of this part. 
Alternatively, at its option, the Indian Tribe has the right to sue 
pursuant to section 110 of the Act [25 U.S.C. 450m-1] in Federal 
district court to challenge the Secretary's decision.



Sec. 137.147  Do those portions of the compact, funding agreement, or 

amendment not in dispute go into effect?

    Yes, subject to section 507(c)(1)(D) of the Act [25 U.S.C. 458aaa-
6(c)(1)(D)].



Sec. 137.148  Does appealing the decision of the Secretary prevent entering 

into the compact, funding agreement, or amendment?

    No, appealing the decision of the Secretary does not prevent 
entering into the compact, funding agreement, or amendment.

                             Burden of Proof



Sec. 137.150  What is the burden of proof in an appeal from rejection of a 

final offer?

    With respect to any appeal, hearing or civil action, the Secretary 
shall have the burden of demonstrating by clear and convincing evidence 
the validity of the grounds for rejecting the final offer.

[[Page 788]]

                             Decision Maker



Sec. 137.155  What constitutes a final agency action?

    A final agency action shall consist of a written decision from the 
Department to the Indian Tribe either:
    (a) By an official of the Department who holds a position at a 
higher organizational level within the Department than the level of the 
departmental agency in which the decision that is the subject of the 
appeal was made; or
    (b) By an administrative judge.



                    Subpart I_Operational Provisions

                          Conflicts of Interest



Sec. 137.160  Are Self-Governance Tribes required to address potential 

conflicts of interest?

    Yes, self-Governance Tribes participating in self-governance under 
Title V must ensure that internal measures are in place to address 
conflicts of interest in the administration of self-governance PSFAs.

                       Audits and Cost Principles



Sec. 137.165  Are Self-Governance Tribes required to undertake annual audits?

    Yes, under the provisions of section 506(c) of the Act [25 U.S.C. 
458aaa-5(c)], Self-Governance Tribes must undertake annual audits 
pursuant to the Single Audit Act, 31 U.S.C. 7501 et seq.



Sec. 137.166  Are there exceptions to the annual audit requirements?

    Yes, the exceptions are described in 31 U.S.C. 7502 of the Single 
Audit Act.



Sec. 137.167  What cost principles must a Self-Governance Tribe follow when 

participating in self-governance under Title V?

    A Self-Governance Tribe must apply the cost principles of the 
applicable OMB circular, except as modified by:
    (a) Section 106 (k) of the Act [25 U.S.C. 450j-1],
    (b) Other provisions of law, or
    (c) Any exemptions to applicable OMB circulars subsequently granted 
by the OMB.



Sec. 137.168  May the Secretary require audit or accounting standards other 

than those specified in Sec. 137.167?

    No, no other audit or accounting standards shall be required by the 
Secretary.



Sec. 137.169  How much time does the Federal Government have to make a claim 

against a Self-Governance Tribe relating to any disallowance of costs, based 

on an audit conducted under Sec. 137.165?

    Any right of action or other remedy (other than those relating to a 
criminal offense) relating to any disallowance of costs is barred unless 
the Secretary provides notice of such a disallowance within 365 days 
from receiving any required annual agency single audit report or, for 
any period covered by law or regulation in force prior to enactment of 
the Single Agency Audit Act of 1984, any other required final audit 
report.



Sec. 137.170  When does the 365 day period commence?

    For the purpose of determining the 365 day period, an audit report 
is deemed received on the date of actual receipt by the Secretary, at 
the address specified in Sec. 137.172, if, within 60 days after 
receiving the audit report, the Secretary does not give notice of a 
determination by the Secretary to reject the single-agency audit report 
as insufficient due to non-compliance with chapter 75 of title 31, 
United States Code or noncompliance with any other applicable law.



Sec. 137.171  Where do Self-Governance Tribes send their audit reports?

    (a) For fiscal years ending on or before June 30, 1996, the audit 
report must be sent to: National External Audit Review Center, Lucas 
Place Room 514, 323 W. 8th St., Kansas City, MO 64105.
    (b) For fiscal years, beginning after June 30, 1996, the audit 
report must be sent to: Single Audit Clearinghouse, 1201 E. 10th St., 
Jeffersonville, IN 47132.

[[Page 789]]



Sec. 137.172  Should the audit report be sent anywhere else to ensure receipt 

by the Secretary?

    Yes, the Self-Governance Tribe should also send the audit report to: 
National External Audit Review Center, Lucas Place Room 514, 323 W. 8th 
St., Kansas City, MO 64105.



Sec. 137.173  Does a Self-Governance Tribe have a right of appeal from a 

disallowance?

    Yes, the notice must set forth the right of appeal and hearing to 
the Interior Board of Contract Appeals, pursuant to section 110 of the 
Act [25 U.S.C. 450m-1].

                                 Records



Sec. 137.175  Is a Self-Governance Tribe required to maintain a recordkeeping 

system?

    Yes. Tribes are required to maintain records and provide Federal 
agency access to those records as provided in Sec. 137.177.



Sec. 137.176  Are Tribal records subject to the Freedom of Information Act and 

Federal Privacy Act?

    No, except to the extent that a Self-Governance Tribe specifies 
otherwise in its compact or funding agreement, the records of the Self-
Governance Tribe shall not be considered Federal records for purposes of 
chapter 5 of title 5, United States Code.



Sec. 137.177  Is the Self-Governance Tribe required to make its records 

available to the Secretary?

    Yes, after 30 days advance written notice from the Secretary, the 
Self-Governance Tribe must provide the Secretary with reasonable access 
to such records to enable the Department to meet its minimum legal 
recordkeeping system requirements under sections 3101 through 3106 of 
title 44 United States Code.



Sec. 137.178  May Self-Governance Tribes store patient records at the Federal 

Records Centers?

    Yes, at the option of a Self-Governance Tribe, patient records may 
be stored at Federal Records Centers to the same extent and in the same 
manner as other Department patient records in accordance with section 
105(o) of the Act [25 U.S.C. 450j(o)].



Sec. 137.179  May a Self-Governance Tribe make agreements with the Federal 

Records Centers regarding disclosure and release of the patient records stored 

pursuant to Sec. 137.178?

    Yes, a Self-Governance Tribe may make agreements with the Federal 
Records Centers regarding disclosure and release of the patient records 
stored pursuant to Sec. 137.178.



Sec. 137.180  Are there other laws that govern access to patient records?

    Yes, a Tribe must consider the potential application of Tribal, 
Federal and state law and regulations that may apply to requests for 
access to Tribal patient records, such as the provisions 42 CFR 2.1-2.67 
pertaining to records regarding drug and/or alcohol treatment.

                                Redesign



Sec. 137.185  May a Self-Governance Tribe redesign or consolidate the PSFAs 

that are included in a funding agreement and reallocate or redirect funds for 

such PSFAs?

    Yes, a Self-Governance Tribe may redesign or consolidate PSFAs 
included in a funding agreement and reallocate or redirect funds for 
such PSFAs in any manner which the Self-Governance Tribe deems to be in 
the best interest of the health and welfare of the Indian community 
being served, only if the redesign or consolidation does not have the 
effect of denying eligibility for services to population groups 
otherwise eligible to be served under applicable Federal law.

                             Non-Duplication



Sec. 137.190  Is a Self-Governance Tribe that receives funds under Title V 

also entitled to contract under section 102 of the Act [25 U.S.C. 450(f)] for 

such funds?

    For the period for which, and to the extent to which, funding is 
provided under the compact or funding agreement, the Self-Governance 
Tribe is not entitled to contract with the Secretary for the same funds 
or PSFA under section 102 of the Act [25 U.S.C. 450f]. Such Self-
Governance Tribe is eligible for

[[Page 790]]

new programs on the same basis as other Indian Tribes.

                          Health Status Reports



Sec. 137.200  Are there reporting requirements for Self-Governance Tribes 

under Title V?

    Yes, compacts or funding agreements negotiated between the Secretary 
and a Self-Governance Tribe must include a provision that requires the 
Self-Governance Tribe to report on health status and services delivery. 
These reports may only impose minimal burdens on the Self-Governance 
Tribes.



Sec. 137.201  What are the purposes of the Tribal reporting requirements?

    Tribal reports enable the Secretary to prepare reports required 
under Title V and to develop the budget request. The reporting 
requirements are not intended as a quality assessment or monitoring 
tool, although such provision may be included at the option of the Self-
Governance Tribe. Under no circumstances will the reporting requirement 
include any confidential, proprietary or commercial information. For 
example, while staffing levels may be a part of a report, pay levels for 
the staff are considered confidential between the Self-Governance Tribe 
and the employee.



Sec. 137.202  What types of information will Self-Governance Tribes be 

expected to include in the reports?

    Reports will be derived from existing minimal data elements 
currently collected by Self-Governance Tribes, and may include patient 
demographic and workload data. Not less than 60 days prior to the start 
of negotiations or a mutually agreed upon timeframe, the IHS will 
propose a list of recommended minimal data elements, along with 
justification for their inclusion, to be used as a basis for negotiating 
these requirements into the Self-Governance Tribe's compact or funding 
agreement.



Sec. 137.203  May a Self-Governance Tribe participate in a voluntary national 

uniform data collection effort with the IHS?

    Yes, in order to advance Indian health advocacy efforts, each Self-
Governance Tribe will be encouraged to participate, at its option, in 
national IHS data reporting activities such as Government Performance 
Results Act, epidemiologic and surveillance reporting.



Sec. 137.204  How will this voluntary national uniform data set be developed?

    IHS will work with representatives of Self-Governance Tribes, in 
coordination with the Tribal Self Governance Advisory Committee (TSGAC), 
to develop a mutually-defined annual voluntary uniform subset of data 
that is consistent with Congressional intent, minimizes reporting 
burdens, and responds to the needs of the Self-Governance Tribe.



Sec. 137.205  Will this voluntary uniform data set reporting activity be 

required of all Self-Governance Tribes entering into a compact with the IHS 

under Title V?

    No, to the extent that specific resources are available or have not 
otherwise been provided to Self-Governance Tribes for this purpose, and 
if the Self-Governance Tribes choose to participate, the IHS will 
provide resources, hardware, software, and technical assistance to the 
Self-Governance Tribes to facilitate data gathering to ensure data 
consistency and integrity under this voluntary effort.



Sec. 137.206  Why does the IHS need this information?

    This information will be used to comply with sections 513 [25 U.S.C. 
458aaa-12] and 514 [25 U.S.C. 458aaa-13] of the Act as well as to assist 
IHS in advocating for the Indian health system, budget formulation, and 
other reporting required by statute, development of partnerships with 
other organizations that benefit the health status of Indian Tribes, and 
sharing of best practices.



Sec. 137.207  Will funding be provided to the Self-Governance Tribe to 

compensate for the costs of reporting?

    Yes, reporting requirements are subject to the Secretary providing 
specific funds for this purpose in the funding agreement.

[[Page 791]]

                                 Savings



Sec. 137.210  What happens if self-governance activities under Title V reduce 

the administrative or other responsibilities of the Secretary with respect to 

the operation of Indian programs and result in savings?

    To the extent that PSFAs carried out by Self-Governance Tribes under 
Title V reduce the administrative or other responsibilities of the 
Secretary with respect to the operation of Indian programs and result in 
savings that have not otherwise been included in the amount of Tribal 
shares and other funds determined under section 508(c) of the Act [25 
U.S.C. 458aaa-7(c)], the Secretary must make such savings available to 
the Self-Governance Tribes, for the provision of additional services to 
program beneficiaries in a manner equitable to directly served, 
contracted, and compacted programs.



Sec. 137.211  How does a Self-Governance Tribe learn whether self-governance 

activities have resulted in savings as described in Sec. 137.210.

    The annual report prepared pursuant to section 514(b)(2) [25 U.S.C. 
458aaa-13(b)(2)] of the Act must specifically identify any such savings.

                 Access to Government Furnished Property



Sec. 137.215  How does a Self-Governance Tribe obtain title to real and 

personal property furnished by the Federal Government for use in the 

performance of a compact, funding agreement, construction project agreement, 

or grant agreement pursuant to section 512(c) of the Act [25 U.S.C. 458aaa-

11(c)]?

    (a) For government-furnished real and personal property made 
available to a Self-Governance Tribe, the Self-Governance Tribe must 
take title to all real or personal property unless the Self-Governance 
Tribe requests that the United States retain the title.
    (b) For government-furnished personal property made available to a 
Self-Governance Tribe:
    (1) The Secretary, in consultation with each Self-Governance Tribe, 
must develop a list of the property used in a compact, funding 
agreement, or construction project agreement.
    (2) The Self-Governance Tribe must indicate any items on the list to 
which the Self-Governance Tribe wants the Secretary to retain title.
    (3) The Secretary must provide the Self-Governance Tribe with any 
documentation needed to transfer title to the remaining listed property 
to the Self-Governance Tribe.
    (c) For government-furnished real property made available to a Self-
Governance Tribe:
    (1) The Secretary, in consultation with the Self-Governance Tribe, 
must develop a list of the property furnished for use in a compact, 
funding agreement, or construction project agreement.
    (2) The Secretary must inspect any real property on the list to 
determine the presence of any hazardous substance activity, as defined 
in 41 CFR 101-47.202-2(b)(10).
    (3) The Self-Governance Tribe must indicate on the list to the 
Secretary any items of real property to which the Self-Governance Tribe 
wants the Secretary to retain title and those items of property to which 
the Self-Governance Tribe wishes to obtain title. The Secretary must 
take such steps as necessary to transfer title to the Self-Governance 
Tribe those items of real property which the Self-Governance Tribe 
wishes to acquire.

              Matching and Cost Participation Requirements



Sec. 137.217  May funds provided under compacts, funding agreements, or grants 

made pursuant to Title V be treated as non-Federal funds for purposes of 

meeting matching or cost participation requirements under any other 

Federal or non-Federal program?

    Yes, funds provided under compacts, funding agreements, or grants 
made pursuant to Title V may be treated as non-Federal funds for 
purposes of meeting matching or cost participation requirements under 
any other Federal or non-Federal program.

[[Page 792]]

                     Federal Tort Claims Act (FTCA)



Sec. 137.220  Do section 314 of Public Law 101-512 [25 U.S.C. 450f note] and 

section 102(d) of the Act [25 U.S.C. 450f(d)] (regarding, in part, FTCA 

coverage) apply to compacts, funding agreements and construction project 

agreements?

    Yes, regulations governing FTCA coverage are set out at 25 CFR Part 
900, Subpart M.



                       Subpart J_Regulation Waiver



Sec. 137.225  What regulations may be waived under Title V?

    A Self-Governance Tribe may request a waiver of regulation(s) 
promulgated under section 517 of the Act [25 U.S.C. 458aaa-16] or under 
the authorities specified in section 505(b) of the Act [25 U.S.C. 
458aaa-4(b)] for a compact or funding agreement entered into with the 
IHS under Title V.



Sec. 137.226  How does a Self-Governance Tribe request a waiver?

    A Self-Governance Tribe may request a waiver by submitting a written 
request to the Secretary identifying the applicable Federal 
regulation(s) sought to be waived and the basis for the request.



Sec. 137.227  How much time does the Secretary have to act on a waiver 

request?

    The Secretary must either approve or deny the requested waiver in 
writing within 90 days after receipt by the Secretary.



Sec. 137.228  Upon what basis may the waiver request be denied?

    A denial may be made only upon a specific finding by the Secretary 
that identified language in the regulation may not be waived because 
such waiver is prohibited by Federal law.



Sec. 137.229  What happens if the Secretary neither approves or denies a 

waiver request within the time specified in Sec. 137.227?

    The waiver request is deemed approved.



Sec. 137.230  Is the Secretary's decision on a waiver request final for the 

Department?

    Yes, the Secretary's decision on a waiver request is final for the 
Department.



Sec. 137.231  May a Self-Governance Tribe appeal the Secretary's decision to 

deny its request for a waiver of a regulation promulgated under section 517 of 

the Act [25 U.S.C. 458aaa-16]?

    The decision may not be appealed under these regulations but may be 
appealed by the Self-Governance Tribe in Federal Court under applicable 
law.



                          Subpart K_Withdrawal



Sec. 137.235  May an Indian Tribe withdraw from a participating inter-Tribal 

consortium or Tribal organization?

    Yes, an Indian Tribe may fully or partially withdraw from a 
participating inter-Tribal consortium or Tribal organization its share 
of any PSFAs included in a compact or funding agreement.



Sec. 137.236  When does a withdrawal become effective?

    A withdrawal becomes effective within the time frame specified in 
the resolution that authorizes withdrawal from the participating Tribal 
organization or inter-Tribal consortium. In the absence of a specific 
time frame set forth in the resolution, such withdrawal becomes 
effective on
    (a) The earlier of 1 year after the date of submission of such 
request, or the date on which the funding agreement expires; or
    (b) Such date as may be mutually agreed upon by the Secretary, the 
withdrawing Indian Tribe, and the participating Tribal organization or 
inter-Tribal consortium that has signed the compact or funding agreement 
on behalf of the withdrawing Indian Tribe, inter-Tribal consortium, or 
Tribal organization.

[[Page 793]]



Sec. 137.237  How are funds redistributed when an Indian Tribe fully or 

partially withdraws from a compact or funding agreement and elects to enter a 

contract or compact?

    When an Indian Tribe eligible to enter into a contract under Title I 
or a compact or funding agreement under Title V fully or partially 
withdraws from a participating inter-Tribal consortium or Tribal 
organization, and has proposed to enter into a contract or compact and 
funding agreement covering the withdrawn funds:
    (a) The withdrawing Indian Tribe is entitled to its Tribal share of 
funds supporting those PSFAs that the Indian Tribe will be carrying out 
under its own contract or compact and funding agreement (calculated on 
the same basis as the funds were initially allocated in the funding 
agreement of the inter-Tribal consortium or Tribal organization); and
    (b) the funds referred to in paragraph (a) of this section must be 
transferred from the funding agreement of the inter-Tribal consortium or 
Tribal organization, on the condition that the provisions of sections 
102 [25 U.S.C. 450f] and 105(i) of the Act [25 U.S.C. 450j], as 
appropriate, apply to the withdrawing Indian Tribe.



Sec. 137.238  How are funds distributed when an Indian Tribe fully or 

partially withdraws from a compact or funding agreement administered by an 

inter-Tribal consortium or Tribal organization serving more than one Indian 

Tribe and the withdrawing Indian Tribe elects not to enter a 

contract or compact?

    All funds not obligated by the inter-Tribal consortium or Tribal 
organization associated with the withdrawing Indian Tribe's returned 
PSFAs, less close out costs, shall be returned by the inter-Tribal 
consortium or Tribal organization to the IHS for operation of the PSFAs 
included in the withdrawal.



Sec. 137.239  If the withdrawing Indian Tribe elects to operate PSFAs carried 

out under a compact or funding agreement under Title V through a contract 

under Title I, is the resulting contract considered a mature 

contract under section 4(h) of the Act [25 U.S.C. 450b(h)]?

    Yes, if the withdrawing Indian Tribe elects to operate PSFAs carried 
out under a compact or funding agreement under Title V through a 
contract under Title I, the resulting contract is considered a mature 
contract under section 4(h) of the Act [25 U.S.C. 450b(h)] at the option 
of the Indian Tribe.



                         Subpart L_Retrocession



Sec. 137.245  What is retrocession?

    Retrocession means the return by a Self-Governance Tribe to the 
Secretary of PSFAs, that are included in a compact or funding agreement, 
for any reason, before the expiration of the term of the compact or 
funding agreement.



Sec. 137.246  How does a Self-Governance Tribe retrocede a PSFA?

    The Self-Governance Tribe submits a written notice to the Director 
of its intent to retrocede. The notice must specifically identify those 
PSFAs being retroceded. The notice may also include a proposed effective 
date of the retrocession.



Sec. 137.247  What is the effective date of a retrocession?

    Unless the request for retrocession is rescinded, the retrocession 
becomes effective within the timeframe specified by the parties in the 
compact or funding agreement. In the absence of a specification, the 
retrocession becomes effective on:
    (a) The earlier of 1 year after:
    (1) The date of submission of the request, or
    (2) The date on which the funding agreement expires; or
    (b) Whatever date is mutually agreed upon by the Secretary and the 
retroceding Self-Governance Tribe.

[[Page 794]]



Sec. 137.248  What effect will a retrocession have on a retroceding Self-

Governance Tribe's rights to contract or compact under the Act?

    A retrocession request shall not negatively affect:
    (a) Any other contract or compact to which the retroceding Self-
Governance Tribe is a party;
    (b) Any other contracts or compacts the retroceding Self-Governance 
Tribe may request; and
    (c) Any future request by such Self-Governance Tribe or an Indian 
Tribe to compact or contract for the same program.



Sec. 137.249  Will retrocession adversely affect funding available for the 

retroceded program?

    No, the Secretary shall provide no less than the same level of 
funding that would have been available if there had been no 
retrocession.



Sec. 137.250  How are funds distributed when a Self-Governance Tribe fully or 

partially retrocedes from its compact or funding agreement?

    Any funds not obligated by the Self-Governance Tribe and associated 
with the Self-Governance Tribe's returned PSFAs, less close out costs, 
must be returned by the Self-Governance Tribe to IHS for operation of 
the PSFA's associated with the compact or funding agreement from which 
the Self-Governance Tribe retroceded in whole or in part.



Sec. 137.251.  What obligation does the retroceding Self-Governance Tribe have 

with respect to returning property that was provided by the Secretary under 

the compact or funding agreement and that was used in the 

operation of the retroceded program?

    On the effective date of any retrocession, the retroceding Self-
Governance Tribe, shall, at the option of the Secretary, deliver to the 
Secretary all requested property and equipment provided by the Secretary 
under the compact or funding agreement, to the extent used to carry out 
the retroceded PSFAs, which at the time of retrocession has a per item 
current fair market value, less the cost of improvements borne by the 
Self-Governance Tribe in excess of $5,000 at the time of the 
retrocession.



                         Subpart M_Reassumption



Sec. 137.255  What does reassumption mean?

    Reassumption means rescission by the Secretary without consent of 
the Self-Governance Tribe of PSFAs and associated funding in a compact 
or funding agreement and resuming responsibility to provide such PSFAs.



Sec. 137.256  Under what circumstances may the Secretary reassume a program, 

service, function, or activity (or portion thereof)?

    (a) Subject to the steps in Sec. 137.257, the Secretary may 
reassume a program, service, function, or activity (or portion thereof) 
and associated funding if the Secretary makes a specific finding 
relative to that PSFA of :
    (1) Imminent endangerment of the public health caused by an act or 
omission of the Self-Governance Tribe, and the imminent endangerment 
arises out of a failure to carry out the compact or funding agreement; 
or
    (2) Gross mismanagement with respect to funds transferred to the 
Self-Governance Tribe by a compact or funding agreement, as determined 
by the Secretary, in consultation with the Inspector General, as 
appropriate.
    (b) Immediate reassumption may occur under additional requirements 
set forth in Sec. 137.261.



Sec. 137.257  What steps must the Secretary take prior to reassumption 

becoming effective?

    Except as provided in Sec. 137.261 for immediate reassumption, 
prior to a reassumption becoming effective, the Secretary must:
    (a) Notify the Self-Governance Tribe in writing by certified mail of 
the details of findings required under Sec. 137.256(a)(1) and (2);
    (b) Request specified corrective action within a reasonable period 
of time, which in no case may be less than 45 days;
    (c) Offer and provide, if requested, the necessary technical 
assistance and advice to assist the Self-Governance Tribe to overcome 
the conditions that

[[Page 795]]

led to the findings described under (a); and
    (d) Provide the Self-Governance Tribe with a hearing on the record 
as provided under Subpart P of this part.



Sec. 137.258  Does the Self-Governance Tribe have a right to a hearing prior 

to a non-immediate reassumption becoming effective?

    Yes, at the Self-Governance Tribe's request, the Secretary must 
provide a hearing on the record prior to or in lieu of the corrective 
action period identified in Sec. 137.257(b).



Sec. 137.259  What happens if the Secretary determines that the Self-

Governance Tribe has not corrected the conditions that the Secretary 

identified in the notice?

    (a) The Secretary shall provide a second written notice by certified 
mail to the Self-Governance Tribe served by the compact or funding 
agreement that the compact or funding agreement will be rescinded, in 
whole or in part.
    (b) The second notice shall include:
    (1) The intended effective date of the reassumption;
    (2) The details and facts supporting the intended reassumption; and
    (3) Instructions that explain the Indian Tribe's right to a formal 
hearing within 30 days of receipt of the notice.



Sec. 137.260  What is the earliest date on which a reassumption can be 

effective?

    Except as provided in Sec. 137.261, no PSFA may be reassumed by the 
Secretary until 30 days after the final resolution of the hearing and 
any subsequent appeals to provide the Self-Governance Tribe with an 
opportunity to take corrective action in response to any adverse final 
ruling.



Sec. 137.261  Does the Secretary have the authority to immediately reassume a 

PSFA?

    Yes, the Secretary may immediately reassume operation of a program, 
service, function, or activity (or portion thereof) and associated 
funding upon providing to the Self-Governance Tribe written notice in 
which the Secretary makes a finding:
    (a) of imminent substantial and irreparable endangerment of the 
public health caused by an act or omission of the Indian Tribe; and
    (b) the endangerment arises out of a failure to carry out the 
compact or funding agreement.



Sec. 137.262  If the Secretary reassumes a PSFA immediately, when must the 

Secretary provide the Self-Governance Tribe with a hearing?

    If the Secretary immediately reassumes a PSFA, the Secretary must 
provide the Self-Governance Tribe with a hearing under Subpart P of this 
part not later than 10 days after such reassumption, unless the Self-
Governance Tribe and the Secretary agree to an extension.



Sec. 137.263  May the Secretary provide a grant to a Self-Governance Tribe for 

technical assistance to overcome conditions identified under Sec. 137.257?

    Yes, the Secretary may make a grant for the purpose of obtaining 
technical assistance as provided in section 103 of the Act [25 U.S.C. 
458aaa-h].



Sec. 137.264  To what extent may the Secretary require the Self-Governance 

Tribe to return property that was provided by the Secretary under the compact 

or funding agreement and used in the operation of the reassumed program?

    On the effective date of any reassumption, the Self-Governance 
Tribe, shall, at the option of the Secretary and only to the extent 
requested by the Secretary, deliver to the Secretary property and 
equipment provided by the Secretary under the compact or funding 
agreement, to the extent the property was used to directly carry out the 
reassumed program, service, function, or activity (or portion thereof), 
provided that at the time of reassumption the property has a per item 
current fair market value, less the cost of improvements borne by the 
Self-Governance Tribe, in excess of $5,000 at the time of the 
reassumption.



Sec. 137.265  May a Tribe be reimbursed for actual and reasonable close out 

costs incurred after the effective date of reassumption?

    Yes, a Tribe may be reimbursed for actual and reasonable close out 
costs

[[Page 796]]

incurred after the effective date of reassumption.



                         Subpart N_Construction

                            Purpose and Scope



Sec. 137.270  What is covered by this subpart?

    This subpart covers IHS construction projects carried out under 
section 509 of the Act [25 U.S.C. 458aaa-8].



Sec. 137.271  Why is there a separate subpart in these regulations for 

construction project agreements?

    Construction projects are separately defined in Title V and are 
subject to a separate proposal and review process. Provisions of a 
construction project agreement and this subpart shall be liberally 
construed in favor of the Self-Governance Tribe.



Sec. 137.272  What other alternatives are available for Self-Governance Tribes 

to perform construction projects?

    Self-Governance Tribes also have the option of performing IHS 
construction projects under a variety of other legal authorities, 
including but not limited to Title I of the Act, the Indian Health Care 
Improvement Act, Public Law 94-437, and Public Law 86-121. This subpart 
does not cover projects constructed pursuant to agreements entered into 
under these authorities.



Sec. 137.273  What are IHS construction PSFAs?

    IHS construction PSFAs are a combination of construction projects as 
defined in Sec. 137.280 and construction programs.



Sec. 137.274  Does this subpart cover construction programs?

    No, except as provided in Sec. 137.275, this subpart does not cover 
construction programs such as the:
    (a) Maintenance and Improvement Program;
    (b) Construction program functions; and,
    (c) Planning services and construction management services.



Sec. 137.275  May Self-Governance Tribes include IHS construction programs in 

a construction project agreement or in a funding agreement?

    Yes, Self-Governance Tribes may choose to assume construction 
programs in a construction project agreement, in a funding agreement, or 
in a combination of the two. These programs may include the following:
    (a) Maintenance and improvement program;
    (b) Construction program functions; and
    (c) Planning services and construction management services.

                        Construction Definitions



Sec. 137.280  Construction Definitions.

    ALJ means administrative law judge.
    APA means Administrative Procedures Act, 5 U.S.C. 701-706.
    Budget means a statement of the funds required to complete the scope 
of work in a construction project agreement. For cost reimbursement 
agreements, budgets may be stated using broad categories such as 
planning, design, construction, project administration, and contingency. 
For fixed price agreements, budgets may be stated as lump sums, unit 
cost pricing, or a combination thereof.
    Categorical exclusion means a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment and that have been found to have no such effect in 
procedures adopted by a Federal agency in implementation of these 
regulations and for which, therefore, neither an environmental 
assessment nor an environmental impact statement is required. Any 
procedures under this section shall provide for extraordinary 
circumstances in which a normally excluded action may have a significant 
environmental effect.
    CEQ means Council on Environmental Quality in the Office of the 
President.
    Construction management services (CMS) means activities limited to 
administrative support services; coordination; and monitoring oversight 
of the planning, design, and construction process. CMS activities 
typically include:

[[Page 797]]

    (1) Coordination and information exchange between the Self-
Governance Tribe and the Federal Government;
    (2) Preparation of a Self-Governance Tribe's project agreement; and
    (3) A Self-Governance Tribe's subcontract scope of work 
identification and subcontract preparation, and competitive selection of 
construction contract subcontractors.
    Construction phase is the phase of a construction project agreement 
during which the project is constructed, and includes labor, materials, 
equipment and services necessary to complete the work, in accordance 
with the construction project agreement.
    Construction project means:
    (1) An organized noncontinuous undertaking to complete a specific 
set of predetermined objectives for the planning, environmental 
determination, design, construction, repair, improvement, or expansion 
of buildings or facilities described in a project agreement, and
    (2) Does not include construction program administration and 
activities described in sections 4(m)(1) through (3) of the Act [25 
U.S.C. 4b(m)(1) through (3)], that may otherwise be included in a 
funding agreement under section 505 of the Act [25 U.S.C. 458aaa-4].
    Construction project agreement means a negotiated agreement between 
the Secretary and a Self-Governance Tribe, that at a minimum:
    (1) Establishes project phase start and completion dates;
    (2) Defines a specific scope of work and standards by which it will 
be accomplished;
    (3) Identifies the responsibilities of the Self-Governance Tribe and 
the Secretary;
    (4) Addresses environmental considerations;
    (5) Identifies the owner and operations and maintenance entity of 
the proposed work;
    (6) Provides a budget;
    (7) Provides a payment process; and
    (8) Establishes the duration of the agreement based on the time 
necessary to complete the specified scope of work, which may be 1 or 
more years.
    Design phase is the phase of a construction project agreement during 
which project plans, specifications, and other documents are prepared 
that are used to build the project. Site investigation, final site 
selection activities and environmental review and determination 
activities are completed in this phase if not conducted as a part of the 
planning phase.
    Maintenance and improvement program:
    (1) As used in this subpart means the program that provides funds 
for eligible facilities for the purpose of:
    (i) Performing routine maintenance;
    (ii) Achieving compliance with accreditation standards;
    (iii) Improving and renovating facilities;
    (iv) Ensuring that Indian health care facilities meet existing 
building codes and standards; and
    (v) Ensuring compliance with public law building requirements.
    (2) The maintenance and improvement program is comprised of routine 
maintenance and repair funding and project funding. Typical maintenance 
and improvement projects have historically been funded out of regional 
or national project pools and may include, but are not limited to, total 
replacement of a heating or cooling system, remodel of a medical 
laboratory, removal of lead based paint, abatement of asbestos and 
abatement of underground fuel storage tanks. Maintenance and repair 
program funding provided under a funding agreement is not covered under 
this subpart.
    NEPA means the National Environmental Policy Act of 1969 [42 U.S.C. 
4321 et seq.].
    NHPA means the National Historic Preservation Act [16 U.S.C. 470 et 
seq.].
    Planning phase is the phase of a construction project agreement 
during which planning services are provided.
    Planning services may include performing a needs assessment, 
completing and/or verifying master plans, developing justification 
documents, conducting pre-design site investigations, developing budget 
cost estimates, conducting feasibility studies as needed, conducting 
environmental review activities and justifying the need for the project.
    SHPO means State Historic Preservation Officer.

[[Page 798]]

    Scope of work or specific scope of work means a brief written 
description of the work to be accomplished under the construction 
project agreement, sufficient to confirm that the project is consistent 
with the purpose for which the Secretary has allocated funds.
    THPO means Tribal Historic Preservation Officer.

                              NEPA Process



Sec. 137.285  Are Self-Governance Tribes required to accept Federal 

environmental responsibilities to enter into a construction project agreement?

    Yes, under section 509 of the Act [25 U.S.C. 458aaa-8], Self-
Governance Tribes must assume all Federal responsibilities under the 
NEPA of 1969 [42 U.S.C. 4321 et seq.] and the National Historic 
Preservation Act [16 U.S.C. 470 et seq.] and related provisions of law 
that would apply if the Secretary were to undertake a construction 
project, but only those responsibilities directly related to the 
completion of the construction project being assumed.



Sec. 137.286  Do Self-Governance Tribes become Federal agencies when they 

assume these Federal environmental responsibilities?

    No, while Self-Governance Tribes are required to assume Federal 
environmental responsibilities for projects in place of the Secretary, 
Self-Governance Tribes do not thereby become Federal agencies. However, 
because Self-Governance Tribes are assuming the responsibilities of the 
Secretary for the purposes of performing these Federal environmental 
responsibilities, Self-Governance Tribes will be considered the 
equivalent of Federal agencies for certain purposes as set forth in this 
subpart.



Sec. 137.287  What is the National Environmental Policy Act (NEPA)?

    The NEPA is a procedural law that requires Federal agencies to 
follow established environmental review procedures, which include 
reviewing and documenting the environmental impact of their actions. 
NEPA establishes a comprehensive policy for protection and enhancement 
of the environment by the Federal Government; creates the Council on 
Environmental Quality in the Office of the President; and directs 
Federal agencies to carry out the policies and procedures of the Act. 
CEQ regulations (40 CFR 1500-1508) establish three levels of 
environmental review: categorical exclusions, environmental assessments, 
and environmental impact statements.



Sec. 137.288  What is the National Historic Preservation Act (NHPA)?

    The NHPA requires Federal agencies to take into account the effects 
of their undertakings, such as construction projects, on properties 
covered by the NHPA, such as historic properties, properties eligible 
for listing on the National Register of Historic Places, or properties 
that an Indian Tribe regards as having religious and/or cultural 
importance. Section 106 of the NHPA [16 U.S.C. 470f] requires Federal 
agencies to afford the Advisory Council on Historic Preservation, acting 
through the SHPO or the THPO, a reasonable opportunity to comment on 
such undertakings.



Sec. 137.289  What is a Federal undertaking under NHPA?

    The Advisory Council on Historic Preservation has defined a Federal 
undertaking in 36 CFR 800.16(y) as a project, activity, or program 
funded in whole or in part under the direct or indirect jurisdiction of 
a Federal agency, including those carried out by or on behalf of a 
Federal agency; those carried out with Federal financial assistance; 
those requiring a Federal permit, license or approval; and those subject 
to State or local regulation administered pursuant to a delegation or 
approval by a Federal agency.



Sec. 137.290  What additional provisions of law are related to NEPA and NHPA?

    (a) Depending upon the nature and the location of the construction 
project, environmental laws related to NEPA and NHPA may include:
    (1) Archaeological and Historical Data Preservation Act [16 U.S.C. 
469];
    (2) Archeological Resources Protection Act [16 U.S.C. 470aa];
    (3) Clean Air Act [42 U.S.C. 7401];
    (4) Clean Water Act [33 U.S.C. 1251];

[[Page 799]]

    (5) Coastal Barrier Improvement Act [42 U.S.C. 4028 and 16 U.S.C. 
Sec. 3501];
    (6) Coastal Barrier Resources Act [16 U.S.C. 3501];
    (7) Coastal Zone Management Act [16 U.S.C. 1451];
    (8) Comprehensive Environmental Response, Compensation, and 
Liability Act [42 U.S.C. 9601];
    (9) Endangered Species Act [16 U.S.C. 1531 et seq.];
    (10) Farmland Protection Policy Act [7 U.S.C. 4201 et seq.];
    (11) Marine Protection, Research, and Sanctuaries Act [33 U.S.C. 
1401-1445; 16 U.S.C. 1431-1447F; 33 U.S.C. 2801-2805];
    (12) National Historic Preservation Act [16 U.S.C. 470 et seq.];
    (13) National Trails System Act [16 U.S.C. 1241];
    (14) Native American Graves Protection and Repatriation Act [25 
U.S.C. 3001];
    (15) Noise Control Act [42 U.S.C.4901];
    (16) Resource Conservation and Recovery Act [42 U.S.C. 6901];
    (17) Safe Drinking Water Act [42 U.S.C. 300F];
    (18) Toxic Substance Control Act [15 U.S.C. 2601];
    (19) Wild and Scenic Rivers Act [16 U.S.C. 1271]; and
    (20) Wilderness Act [16 U.S.C. 1131].
    (b) This section provides a list of environmental laws for 
informational purposes only and does not create any legal rights or 
remedies, or imply private rights of action.



Sec. 137.291  May Self-Governance Tribes carry out construction projects 

without assuming these Federal environmental responsibilities?

    Yes, but not under section 509 of the Act [25 U.S.C. 458aaa-8]. 
Self-Governance Tribes may otherwise elect to perform construction 
projects, or phases of construction projects, under other legal 
authorities (see Sec. 137.272).



Sec. 137.292  How do Self-Governance Tribes assume environmental 

responsibilities for construction projects under section 509 of the Act [25 

U.S.C. 458aaa-8]?

    Self-Governance Tribes assume environmental responsibilities by:
    (a) Adopting a resolution or taking an equivalent Tribal action 
which:
    (1) Designates a certifying officer to represent the Self-Governance 
Tribe and to assume the status of a responsible Federal official under 
NEPA, NHPA, and related provisions of law; and
    (2) Accepts the jurisdiction of the Federal court, as provided in 
Sec. 137.310 and Sec. 137.311 for purposes of enforcement of the 
Federal environmental responsibilities assumed by the Self-Governance 
Tribe; and
    (b) Entering into a construction project agreement under section 509 
of the Act [25 U.S.C. 458aaa-8].



Sec. 137.293  Are Self-Governance Tribes required to adopt a separate 

resolution or take equivalent Tribal action to assume environmental 

responsibilities for each construction project agreement?

    No, the Self-Governance Tribe may adopt a single resolution or take 
equivalent Tribal action to assume environmental responsibilities for a 
single project, multiple projects, a class of projects, or all projects 
performed under section 509 of the Act [25 U.S.C. 458aaa-8].



Sec. 137.294  What is the typical IHS environmental review process for 

construction projects?

    (a) Most IHS construction projects normally do not have a 
significant impact on the environment, and therefore do not require 
environmental impact statements (EIS). Under current IHS procedures, an 
environmental review is performed on all construction projects. During 
the IHS environmental review process, the following activities may 
occur:
    (1) Consult with appropriate Tribal, Federal, state, and local 
officials and interested parties on potential environmental effects;
    (2) Document assessment of potential environmental effects; (IHS has 
developed a form to facilitate this process.)
    (3) Perform necessary environmental surveys and inventories;
    (4) Consult with the Advisory Council on Historic Preservation, 
acting through the SHPO or THPO, to ensure compliance with the NHPA;
    (5) Determine if extraordinary or exceptional circumstances exist 
that

[[Page 800]]

would prevent the project from meeting the criteria for categorical 
exclusion from further environmental review under NEPA, or if an 
environmental assessment is required;
    (6) Obtain environmental permits and approvals; and
    (7) Identify methods to avoid or mitigate potential adverse effects;
    (b) This section is for informational purposes only and does not 
create any legal rights or remedies, or imply private rights of action.



Sec. 137.295  May Self-Governance Tribes elect to develop their own 

environmental review process?

    Yes, Self-Governance Tribes may develop their own environmental 
review process or adopt the procedures of the IHS or the procedures of 
another Federal agency.



Sec. 137.296  How does a Self-Governance Tribe comply with NEPA and NHPA?

    Self-Governance Tribes comply with NEPA and the NHPA by adopting and 
following:
    (a) their own environmental review procedures;
    (b) the procedures of the IHS; and/or
    (c) the procedures of another Federal agency.



Sec. 137.297  If the environmental review procedures of a Federal agency are 

adopted by a Self-Governance Tribe, is the Self-Governance Tribe responsible 

for ensuring the agency's policies and procedures meet the 

requirements of NEPA, NHPA, and related environmental laws?

    No, the Federal agency is responsible for ensuring its own policies 
and procedures meet the requirements of NEPA, NHPA, and related 
environmental laws, not the Self-Governance Tribe.



Sec. 137.298  Are Self-Governance Tribes required to comply with Executive 

Orders to fulfill their environmental responsibilities under section 509 of 

the Act [25 U.S.C. 458aaa-8]?

    No, but Self-Governance Tribes may at their option, choose to 
voluntarily comply with Executive Orders. For facilities where ownership 
will vest with the Federal Government upon completion of the 
construction, Tribes and the Secretary may agree to include the goals 
and objectives of Executive Orders in the codes and standards of the 
construction project agreement.



Sec. 137.299  Are Federal funds available to cover the cost of Self-Governance 

Tribes carrying out environmental responsibilities?

    Yes, funds are available:
    (a) for project-specific environmental costs through the 
construction project agreement; and
    (b) for environmental review program costs through a funding 
agreement and/or a construction project agreement.



Sec. 137.300  Since Federal environmental responsibilities are new 

responsibilities, which may be assumed by Tribes under section 509 of the Act 

[25 U.S.C. 458aaa-8], are there additional funds available to Self-

Governance Tribes to carry out these formerly inherently 

Federal responsibilities?

    Yes, the Secretary must transfer not less than the amount of funds 
that the Secretary would have otherwise used to carry out the Federal 
environmental responsibilities assumed by the Self-Governance Tribe.



Sec. 137.301  How are project and program environmental review costs 

identified?

    (a) The Self-Governance Tribe and the Secretary should work together 
during the initial stages of project development to identify program and 
project related costs associated with carrying out environmental 
responsibilities for proposed projects. The goal in this process is to 
identify the costs associated with all foreseeable environmental review 
activities.
    (b) If unforeseen environmental review and compliance costs are 
identified during the performance of the construction project, the Self-
Governance Tribe or, at the request of the Self-Governance Tribe, the 
Self-Governance Tribe and the Secretary (with or without amendment as 
required by Sec. 137.363) may do one or more of the following:
    (1) Mitigate adverse environmental effects;
    (2) Alter the project scope of work; and/or

[[Page 801]]

    (3) Add additional program and/or project funding, including seeking 
supplemental appropriations.



Sec. 137.302  Are Federal funds available to cover start-up costs associated 

with initial Tribal assumption of environmental responsibilities?

    (a) Yes, start-up costs are available as provided in section 508(c) 
of the Act [25 U.S.C. 458aaa-7(c)]. During the initial year that these 
responsibilities are assumed, the amount required to be paid under 
section 106(a)(2) of the Act [25 U.S.C. 450j-1(a)(2)] must include 
startup costs consisting of the reasonable costs that have been incurred 
or will be incurred on a one-time basis pursuant to the agreement 
necessary:
    (1) To plan, prepare for, and assume operation of the environmental 
responsibilities; and
    (2) To ensure compliance with the terms of the agreement and prudent 
management.
    (b) Costs incurred before the initial year that the agreement is in 
effect may not be included in the amount required to be paid under 
section 106(a)(2) of the Act [25 U.S.C. 450j-1(a)(2)] if the Secretary 
does not receive a written notification of the nature and extent of the 
costs prior to the date on which such costs are incurred.



Sec. 137.303  Are Federal or other funds available for training associated 

with Tribal assumption of environmental responsibilities?

    Yes, Self-Governance Tribes may use construction program and project 
funds for training and program development. Training and program 
development funds may also be available from other Federal agencies, 
such as the Environmental Protection Agency and the National Park 
Service, state and local governments, and private organizations.



Sec. 137.304  May Self-Governance Tribes buy back environmental services from 

the IHS?

    Yes, Self-Governance Tribes may ``buy back'' project related 
services in their construction project agreement, including design and 
construction engineering, and environmental compliance services from the 
IHS in accordance with Section 508(f) of the Act [25 U.S.C. 458aaa-7(f)] 
and Sec. 137.95, subject to the availability of the IHS's capacity to 
conduct the work.



Sec. 137.305  May Self-Governance Tribes act as lead, cooperating, or joint 

lead agencies for environmental review purposes?

    Yes, Self-Governance Tribes assuming Federal environmental 
responsibilities for construction projects under section 509 of the Act 
[25 U.S.C. 458aaa-8] are entitled to receive equal consideration, on the 
same basis as any Federal agency, for lead, cooperating, and joint lead 
agency status. For informational purposes, the terms ``lead,'' 
``cooperating,'' and ``joint lead agency'' are defined in the CEQ 
regulations at 40 CFR 1508.16, 1508.5, and 1501.5 respectively.



Sec. 137.306  How are Self-Governance Tribes recognized as having lead, 

cooperating, or joint lead agency status?

    Self-Governance Tribes may be recognized as having lead, 
cooperating, or joint lead agency status through funding or other 
agreements with other agencies. To the extent that resources are 
available, the Secretary will encourage and facilitate Federal, state, 
and local agencies to enter into agreements designating Tribes as lead, 
cooperating, or joint lead agencies for environmental review purposes.



Sec. 137.307  What Federal environmental responsibilities remain with the 

Secretary when a Self-Governance Tribe assumes Federal environmental 

responsibilities for construction projects under section 509 of the Act [25 

U.S.C. 458aaa-8]?

    (a) All environmental responsibilities for Federal actions not 
directly related to construction projects assumed by Tribes under 
section 509 of the Act [25 U.S.C. 458aaa-8] remain with the Secretary. 
Federal agencies, including the IHS, retain responsibility for ensuring 
their environmental review procedures meet the requirements of NEPA, 
NHPA and related provisions of law, as called for in Sec. 137.297.
    (b) The Secretary will provide information updating and changing IHS 
agency environmental review policy and procedures to all Self-Governance

[[Page 802]]

Tribes implementing a construction project agreement, and to other 
Indian Tribes upon request. If a Self-Governance Tribe participating 
under section 509 of the Act [25 U.S.C. 458aaa-8] does not wish to 
receive this information, it must notify the Secretary in writing. As 
resources permit, at the request of the Self-Governance Tribe, the 
Secretary will provide technical assistance to the Self-governance tribe 
to assist the Self-governance Tribe in carrying out Federal 
environmental responsibilities.



Sec. 137.308  Does the Secretary have any enforcement authority for Federal 

environmental responsibilities assumed by Tribes under section 509 of the Act 

[25 U.S.C. 458aaa-8]?

    No, the Secretary does not have any enforcement authority for 
Federal environmental responsibilities assumed by Tribes under section 
509 of the Act [25 U.S.C. 458aaa-8].



Sec. 137.309  How are NEPA and NHPA obligations typically enforced?

    NEPA and NHPA obligations are typically enforced by interested 
parties who may file lawsuits against Federal agencies alleging that the 
agencies have not complied with their legal obligations under NEPA and 
NHPA. These lawsuits may only be filed in Federal court under the 
provisions of the APA, 5 U.S.C. 701-706. Under the APA, a Federal judge 
reviews the Federal agency's actions based upon an administrative record 
prepared by the Federal agency. The judge gives appropriate deference to 
the agency's decisions and does not substitute the court's views for 
those of the agency. Jury trials and civil discovery are not permitted 
in APA proceedings. If a Federal agency has failed to comply with NEPA 
or NHPA, the judge may grant declaratory or injunctive relief to the 
interested party. No money damages or fines are permitted in APA 
proceedings.



Sec. 137.310  Are Self-Governance Tribes required to grant a limited waiver of 

their sovereign immunity to assume Federal environmental responsibilities 

under section 509 of the Act [25 U.S.C. 458aaa-8]?

    Yes, but only as provided in this section. Unless Self-Governance 
Tribes consent to the jurisdiction of a court, Self-Governance Tribes 
are immune from civil lawsuits. Self-Governance Tribes electing to 
assume Federal environmental responsibilities under section 509 of the 
Act [25 U.S.C. 458aaa-8] must provide a limited waiver of sovereign 
immunity solely for the purpose of enforcing a Tribal certifying 
officer's environmental responsibilities, as set forth in this subpart. 
Self-Governance Tribes are not required to waive any other immunity.



Sec. 137.311  Are Self-Governance Tribes entitled to determine the nature and 

scope of the limited immunity waiver required under section 509(a)(2) of the 

Act [25 U.S.C. 458aaa-8(a)(2)]?

    (a) Yes, Section 509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)] 
only requires that the waiver permit a civil enforcement action to be 
brought against the Tribal certifying officer in his or her official 
capacity in Federal district court for declaratory and injunctive relief 
in a procedure that is substantially equivalent to an APA enforcement 
action against a Federal agency. Self-Governance Tribes are not required 
to subject themselves to suit in their own name, to submit to trial by 
jury or civil discovery, or to waive immunity for money damages, 
attorneys fees, or fines.
    (b) Self-Governance Tribes may base the grant of a limited waiver 
under this subpart on the understanding that:
    (1) Judicial review of the Tribal certifying official's actions are 
based upon the administrative record prepared by the Tribal official in 
the course of performing the Federal environmental responsibilities; and
    (2) Actions and decisions of the Tribal certifying officer will be 
granted deference on a similar basis as Federal officials performing 
similar functions.

[[Page 803]]



Sec. 137.312  Who is the proper defendant in a civil enforcement action under 

section 509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)]?

    Only the designated Tribal certifying officer acting in his or her 
official capacity may be sued. Self-Governance Tribes and other Tribal 
officials are not proper defendants in lawsuits brought under section 
509(a)(2) of the Act [25 U.S.C. 458aaa-8(a)(2)].

    Notification (Prioritization Process, Planning, Development and 
                              Construction)



Sec. 137.320  Is the Secretary required to consult with affected Indian Tribes 

concerning construction projects and programs?

    Yes, before developing a new project resource allocation methodology 
and application process the Secretary must consult with all Indian 
Tribes. In addition, before spending any funds for planning, design, 
construction, or renovation projects, whether subject to a competitive 
application and ranking process or not, the Secretary must consult with 
any Indian Tribe that would be significantly affected by the expenditure 
to determine and honor Tribal preferences whenever practicable 
concerning the size, location, type, and other characteristics of the 
project.



Sec. 137.321  How do Indian Tribes and the Secretary identify and request 

funds for needed construction projects?

    In addition to the requirements contained in section 513 of the Act 
[25 U.S.C. 458aaa-12], Indian Tribes and the Secretary are encouraged to 
jointly identify health facility and sanitation needs at the earliest 
possible date for IHS budget formulation. In developing budget 
justifications for specific projects to be proposed to Congress, the 
Secretary shall follow the preferences of the affected Indian Tribe(s) 
to the greatest extent feasible concerning the size, location, type, and 
other characteristics of the project.



Sec. 137.322  Is the Secretary required to notify an Indian Tribe that funds 

are available for a construction project or a phase of a project?

    (a) Yes, within 30 days after the Secretary's allocation of funds 
for planning phase, design phase, or construction phase activities for a 
specific project, the Secretary shall notify, by registered mail with 
return receipt in order to document mailing, the Indian Tribe(s) to be 
benefitted by the availability of the funds for each phase of a project. 
The Secretarial notice of fund allocation shall offer technical 
assistance in the preparation of a construction project proposal.
    (b) The Secretary shall, within 30 days after receiving a request 
from an Indian Tribe, furnish the Indian Tribe with all information 
available to the Secretary about the project including, but not limited 
to: construction drawings, maps, engineering reports, design reports, 
plans of requirements, cost estimates, environmental assessments, or 
environmental impact reports and archeological reports.
    (c) An Indian Tribe is not required to request this information 
prior to either submitting a notification of intent or a construction 
project proposal.
    (d) The Secretary shall have a continuing responsibility to furnish 
information to the Indian Tribes.

                       Project Assumption Process



Sec. 137.325  What does a Self-Governance Tribe do if it wants to perform a 

construction project under section 509 of the Act [25 U.S.C. 458aaa-8]?

    (a) A Self-Governance Tribe may start the process of developing a 
construction project agreement by:
    (1) Notifying the Secretary in writing that the Self-Governance 
Tribe wishes to enter into a pre-agreement negotiation phase as set 
forth in section 105(m)(3) of the Act [25 U.S.C. 450j(m)(3)]; or
    (2) Submitting a proposed construction project agreement. This 
proposed agreement may be the final proposal, or it may be a draft for 
consideration and negotiation, or
    (3) A combination of the actions described in paragraphs (a)(1) and 
(2) of this section.

[[Page 804]]

    (b) Upon receiving a Self-Governance Tribe's request to enter into a 
pre-negotiation phase the Secretary shall take the steps outlined in 
section 105(m)(3) of the Act [25 U.S.C. 450j(m)(3)].



Sec. 137.326  What must a Tribal proposal for a construction project agreement 

contain?

    A construction project proposal must contain all of the required 
elements of a construction project agreement as defined in Sec. 
137.280. In addition to these minimum requirements, Self-Governance 
Tribes may propose additional items.



Sec. 137.327  May multiple projects be included in a single construction 

project agreement?

    Yes, a Self-Governance Tribe may include multiple projects in a 
single construction project agreement proposal or may add additional 
approved projects by amendment(s) to an existing construction project 
agreement.



Sec. 137.328  Must a construction project proposal incorporate provisions of 

Federal construction guidelines and manuals?

    (a) No, the Self-Governance Tribe and the Secretary must agree upon 
and specify appropriate building codes and architectural and engineering 
standards (including health and safety) which must be in conformity with 
nationally recognized standards for comparable projects.
    (b) The Secretary may provide, or the Self-Governance Tribe may 
request, Federal construction guidelines and manuals for consideration 
by the Self-Governance Tribe in the preparation of its construction 
project proposal. If Tribal construction codes and standards (including 
national, regional, State, or Tribal building codes or construction 
industry standards) are consistent with or exceed otherwise applicable 
nationally recognized standards, the Secretary must accept the Tribally 
proposed standards.



Sec. 137.329  What environmental considerations must be included in the 

construction project agreement?

    The construction project agreement must include:
    (a) Identification of the Tribal certifying officer for 
environmental review purposes,
    (b) Reference to the Tribal resolution or equivalent Tribal action 
appointing the Tribal certifying officer and accepting the jurisdiction 
of the Federal court for enforcement purposes as provided in Sec. Sec. 
137.310 and 137.311.
    (c) Identification of the environmental review procedures adopted by 
the Self-Governance Tribe, and
    (d) An assurance that no action will be taken on the construction 
phase of the project that would have an adverse environmental impact or 
limit the choice of reasonable alternatives prior to making an 
environmental determination in accordance with the Self-Governance 
Tribe's adopted procedures.



Sec. 137.330  What happens if the Self-Governance Tribe and the Secretary 

cannot develop a mutually agreeable construction project agreement?

    The Self-Governance Tribe may submit a final construction project 
proposal to the Secretary. No later than 30 days after the Secretary 
receives the final construction project proposal, or within a longer 
time agreed to by the Self-Governance Tribe in writing, the Secretary 
shall review and make a determination to approve or reject the 
construction project proposal in whole or in part.



Sec. 137.331  May the Secretary reject a final construction project proposal 

based on a determination of Tribal capacity or capability?

    No, the Secretary may not reject a final construction project 
proposal based on a determination of Tribal capacity or capability.



Sec. 137.332  On what basis may the Secretary reject a final construction 

project proposal?

    (a) The only basis for rejection of project activities in a final 
construction project proposal are:
    (1) The amount of funds proposed in the final construction project 
proposal exceeds the applicable funding level for the construction 
project as determined under sections 508(c) [25 U.S.C. 458aaa-

[[Page 805]]

7(c)] and 106 of the Act [25 U.S.C. 450j-1].
    (2) The final construction project proposal does not meet the 
minimum content requirements for construction project agreements set 
forth in section 501(a)(2) of the Act [25 U.S.C. 458aaa(a)(2)]; and
    (3) The final construction project proposal on its face clearly 
demonstrates that the construction project cannot be completed as 
proposed.
    (b) For construction programs proposed to be included in a 
construction project agreement, the Secretary may also reject that 
portion of the proposal that proposes to assume an inherently Federal 
function that cannot legally be delegated to the Self-Governance Tribe.



Sec. 137.333  What procedures must the Secretary follow if the Secretary 

rejects a final construction project proposal, in whole or in part?

    Whenever the Secretary rejects a final construction project proposal 
in whole or in part, the Secretary must:
    (a) Send the Self-Governance Tribe a timely written notice of 
rejection that shall set forth specific finding(s) that clearly 
demonstrates, or that is supported by controlling legal authority 
supporting the rejection;
    (b) Within 20 days, provide all documents relied on in making the 
rejection decision to the Self-Governance Tribe;
    (c) Provide assistance to the Self-Governance Tribe to overcome any 
objections stated in the written notice of rejection;
    (d) Provide the Self-Governance Tribe with a hearing on the record 
with the right to engage in full discovery relevant to any issue raised 
in the matter and the opportunity for appeal of the decision to reject 
the final construction contract proposal, under the regulations set 
forth in subpart P of this part, except that the Self-Governance Tribe 
may, in lieu of filing an appeal, initiate an action in Federal district 
court and proceed directly under sections 511 [25 U.S.C. 458aaa-10] and 
110(a) of the Act [25 U.S.C. 450m-1(a)]. With respect to any hearing or 
appeal or civil action conducted pursuant to this section, the Secretary 
shall have the burden of demonstrating by clear and convincing evidence 
the validity of the grounds for rejecting the final construction project 
proposal (or portion thereof); and
    (e) Provide the Self-Governance Tribe with the option of entering 
into the severable portions of a final proposed construction project 
agreement (including a lesser funding amount) that the Secretary did not 
reject, subject to any additional alterations necessary to conform the 
construction project agreement to the severed provisions. Exercising 
this option does not affect the Self-Governance Tribe's right to appeal 
the portion of the final construction project proposal that was rejected 
by the Secretary.



Sec. 137.334  What happens if the Secretary fails to notify the Self-

Governance Tribe of a decision to approve or reject a final construction 

project proposal within the time period allowed?

    If the Secretary fails to notify the Self-Governance Tribe of the 
decision to approve or reject within 30 days (or a longer period if 
agreed to by the Self-Governance Tribe in writing), then the proposal 
will be deemed approved by the Secretary.



Sec. 137.335  What costs may be included in the budget for a construction 

agreement?

    (a) A Self-Governance Tribe may include costs allowed by applicable 
OMB Circulars, and costs allowed under sections 508(c) [25 U.S.C. 
458aaa-7(c)], 106 [25 U.S.C. 450j-1] and 105 (m) of the Act [25 U.S.C. 
450j(m)]. The costs incurred will vary depending on which phase of the 
construction process the Self-Governance Tribe is conducting and type of 
construction project agreement that will be used.
    (b) Regardless of whether a construction project agreement is fixed 
price or cost-reimbursement, budgets may include costs or fees 
associated with the following:
    (1) Construction project proposal preparation;
    (2) Conducting community meetings to develop project documents;
    (3) Architects, engineers, and other consultants to prepare project 
planning documents, to develop project plans

[[Page 806]]

and specifications, and to assist in oversight of the design during 
construction;
    (4) Real property lease or acquisition;
    (5) Development of project surveys including topographical surveys, 
site boundary descriptions, geotechnical surveys, archeological surveys, 
and NEPA compliance;
    (6) Project management, superintendence, safety and inspection;
    (7) Travel, including local travel incurred as a direct result of 
conducting the construction project agreement and remote travel in 
conjunction with the project;
    (8) Consultants, such as demographic consultants, planning 
consultants, attorneys, accountants, and personnel who provide services, 
to include construction management services;
    (9) Project site development;
    (10) Project construction cost;
    (11) General, administrative overhead, and indirect costs;
    (12) Securing and installing moveable equipment, telecommunications 
and data processing equipment, furnishings, including works of art, and 
special purpose equipment when part of a construction contract;
    (13) Other costs directly related to performing the construction 
project agreement;
    (14) Project Contingency:
    (i) A cost-reimbursement project agreement budgets contingency as a 
broad category. Project contingency remaining at the end of the project 
is considered savings.
    (ii) Fixed-price agreements budget project contingency in the lump 
sum price or unit price.
    (c) In the case of a fixed-price project agreement, a reasonable 
profit determined by taking into consideration the relevant risks and 
local market conditions.



Sec. 137.336  What is the difference between fixed-price and cost-

reimbursement agreements?

    (a) Cost-reimbursement agreements generally have one or more of the 
following characteristics:
    (1) Risk is shared between IHS and the Self-Governance Tribe;
    (2) Self-Governance Tribes are not required to perform beyond the 
amount of funds provided under the agreement;
    (3) Self-Governance Tribes establish budgets based upon the actual 
costs of the project and are not allowed to include profit;
    (4) Budgets are stated using broad categories, such as planning, 
design, construction project administration, and contingency;
    (5) The agreement funding amount is stated as a ``not to exceed'' 
amount;
    (6) Self-Governance Tribes provide notice to the IHS if they expect 
to exceed the amount of the agreement and require more funds;
    (7) Excess funds remaining at the end of the project are considered 
savings; and
    (8) Actual costs are subject to applicable OMB circulars and cost 
principles.
    (b) Fixed Price agreements generally have one or more of the 
following characteristics:
    (1) Self-Governance Tribes assume the risk for performance;
    (2) Self-Governance Tribes are entitled to make a reasonable profit;
    (3) Budgets may be stated as lump sums, unit cost pricing, or a 
combination thereof;
    (4) For unit cost pricing, savings may occur if actual quantity is 
less than estimated; and,
    (5) Excess funds remaining at the end of a lump sum fixed price 
project are considered profit, unless, at the option of the Self-
Governance Tribe, such amounts are reclassified in whole or in part as 
savings.



Sec. 137.337  What funding must the Secretary provide in a construction 

project agreement?

    The Secretary must provide funding for a construction project 
agreement in accordance with sections 106 [25 U.S.C. 450j-1] and 508(c) 
of the Act [25 U.S.C. 458aaa-7(c)].



Sec. 137.338  Must funds from other sources be incorporated into a 

construction project agreement?

    Yes, at the request of the Self-Governance Tribe, the Secretary must 
include funds from other agencies as permitted by law, whether on an 
ongoing or a one-time basis.

[[Page 807]]



Sec. 137.339  May a Self-Governance Tribe use project funds for matching or 

cost participation requirements under other Federal and non-Federal programs?

    Yes, notwithstanding any other provision of law, all funds provided 
under a construction project agreement may be treated as non-Federal 
funds for purposes of meeting matching or cost participation 
requirements under any other Federal or non-Federal program.



Sec. 137.340  May a Self-Governance Tribe contribute funding to a project?

    Yes, the Self-Governance Tribe and the Secretary may jointly fund 
projects. The construction project agreement should identify the 
Secretarial amount and any Tribal contribution amount that is being 
incorporated into the construction project agreement. The Self-
Governance Tribe does not have to deposit its contribution with the 
Secretary.



Sec. 137.341  How will a Self-Governance Tribe receive payment under a 

construction project agreement?

    (a) For all construction project agreements, advance payments shall 
be made annually or semiannually, at the Self-Governance Tribe's option. 
The initial payment shall include all contingency funding for the 
project or phase of the project to the extent that there are funds 
appropriated for that purpose.
    (b) The amount of subsequent payments is based on the mutually 
agreeable project schedule reflecting:
    (1) Work to be accomplished within the advance payment period,
    (2) Work already accomplished, and
    (3) Total prior payments for each annual or semiannual advance 
payment period.
    (c) For lump sum, fixed price agreements, at the request of the 
Self-Governance Tribe, payments shall be based on an advance payment 
period measured as follows:
    (1) One year; or
    (2) Project Phase(e.g., planning, , design, construction.) If 
project phase is chosen as the payment period, the full amount of funds 
necessary to perform the work for that phase of the construction project 
agreement is payable in the initial advance payment. For multi-phase 
projects, the planning and design phases must be completed prior to the 
transfer of funds for the associated construction phase. The completion 
of the planning and design phases will include at least one opportunity 
for Secretarial approval in accordance with Sec. 137.360.
    (d) For the purposes of payment, Sanitation Facilities Construction 
Projects authorized pursuant to Pub. L. 86-121, are considered to be a 
single construction phase and are payable in a single lump sum advance 
payment in accordance with paragraph (c)(2) of this section.
    (e) For all other construction project agreements, the amount of 
advance payments shall include the funds necessary to perform the work 
identified in the advance payment period of one year.
    (f) Any agreement to advance funds under paragraphs (b), (c) or (d) 
of this section is subject to the availability of appropriations.
    (g) (1) Initial advance payments are due within 10 days of the 
effective date of the construction project agreement; and
    (2) subsequent payments are due:
    (i) Within 10 days of apportionment for annual payments or
    (ii) Within 10 days of the start date of the project phase for phase 
payments.



Sec. 137.342  What happens to funds remaining at the conclusion of a cost 

reimbursement construction project?

    All funds, including contingency funds, remaining at the conclusion 
of the project are considered savings and may be used by the Self-
Governance Tribe to provide additional services for the purpose for 
which the funds were originally appropriated. No further approval or 
justifying documentation is required before the expenditure of the 
remaining funds.



Sec. 137.343  What happens to funds remaining at the conclusion of a fixed 

price construction project?

    (a) For lump sum fixed price construction project agreements, all 
funds remaining at the conclusion of the project are considered profits 
and belong to the Self-Governance Tribe.

[[Page 808]]

    (b) For fixed price construction project agreements with unit price 
components, all funds remaining that are associated with overestimated 
unit price quantities are savings and may be used by the Self-Governance 
Tribe in accordance with section 137.342. All other funds remaining at 
the conclusion of the project are considered profit and belong to the 
Self-Governance Tribe.
    (c) At the option of the Self-Governance Tribe, funds otherwise 
identified in paragraphs (a) and (b) as ``profit'' may be reclassified, 
in whole or in part, as savings and to that extent may be used by the 
Self-Governance Tribe in accordance with section 137.142.



Sec. 137.344  May a Self-Governance Tribe reallocate funds among construction 

project agreements?

    Yes, a Self-Governance Tribe may reallocate funds among construction 
project agreements to the extent not prohibited by applicable 
appropriation law(s).

    Roles of Self-Governance Tribe in Establishing and Implementing 
                     Construction Project Agreements



Sec. 137.350  Is a Self-Governance Tribe responsible for completing a 

construction project in accordance with the negotiated construction project 

agreement?

    Yes, a Self-Governance Tribe assumes responsibility for completing a 
construction project, including day-to-day on-site management and 
administration of the project, in accordance with the negotiated 
construction project agreement. However, Self-Governance Tribes are not 
required to perform beyond the amount of funds provided. For example, a 
Self-Governance Tribe may encounter unforeseen circumstances during the 
term of a construction project agreement. If this occurs, options 
available to the Self-Governance Tribe include, but are not limited to:
    (a) Reallocating existing funding;
    (b) Reducing/revising the scope of work that does not require an 
amendment because it does not result in a significant change;
    (c) Utilizing savings from other projects;
    (d) Requesting additional funds or appropriations;
    (e) Utilizing interest earnings;
    (f) Seeking funds from other sources; and/or
    (g) Redesigning or re-scoping that does result in a significant 
change by amendment as provided in Sec. Sec. 137.363 and 137.364.



Sec. 137.351  Is a Self-Governance Tribe required to submit construction 

project progress and financial reports for construction project agreements?

    Yes, a Self-Governance Tribe must provide the Secretary with 
construction project progress and financial reports semiannually or, at 
the option of the Self-Governance Tribe, on a more frequent basis. Self-
Governance Tribes are only required to submit the reports, as negotiated 
in the Construction Project Agreement, after funds have been transferred 
to the Self-Governance Tribe for a construction project. Construction 
project progress reports and financial reports are only required for 
active construction projects.



Sec. 137.352  What is contained in a construction project progress report?

    Construction project progress reports contain information about 
accomplishments during the reporting period and issues and concerns of 
the Self-Governance Tribe, if any.



Sec. 137.353  What is contained in a construction project financial report?

    Construction project financial reports contain information regarding 
the amount of funds expended during the reporting period, and financial 
concerns of the Self-Governance Tribe, if any.

  Roles of the Secretary in Establishing and Implementing Construction 
                           Project Agreements



Sec. 137.360  Does the Secretary approve project planning and design documents 

prepared by the Self-Governance Tribe?

    The Secretary shall have at least one opportunity to approve project 
planning and design documents prepared by the Self-Governance Tribe in 
advance

[[Page 809]]

of construction if the Self-Governance Tribe is required to submit 
planning or design documents as a part of the scope of work under a 
construction project agreement.



Sec. 137.361  Does the Secretary have any other opportunities to approve 

planning or design documents prepared by the Self-Governance Tribe?

    Yes, but only if there is an amendment to the construction project 
agreement that results in a significant change in the original scope of 
work.



Sec. 137.362  May construction project agreements be amended?

    Yes, the Self-Governance Tribe, at its discretion, may request the 
Secretary to amend a construction project agreement to include 
additional projects. In addition, amendments are required if there is a 
significant change from the original scope of work or if funds are added 
by the Secretary. The Self-Governance Tribe may make immaterial changes 
to the performance period and make budget adjustments within available 
funding without an amendment to the construction project agreement.



Sec. 137.363  What is the procedure for the Secretary's review and approval of 

amendments?

    (a) The Secretary shall promptly notify the Self-Governance Tribe in 
writing of any concerns or issues that may lead to disapproval. The 
Secretary shall share relevant information and documents, and make a 
good faith effort to resolve all issues and concerns of the Self-
Governance Tribe. If, after consultation with the Self-Governance Tribe, 
the Secretary intends to disapprove the proposed amendment, then the 
Secretary shall follow the procedures set forth in Sec. 137.330 through 
137.334.
    (b) The time allowed for Secretarial review, comment, and approval 
of amendments is 30 days, or within a longer time if agreed to by the 
Self-Governance Tribe in writing. Absence of a written response by the 
Secretary within 30 days shall be deemed approved.
    (c) The timeframe set forth in paragraph (b) of this section is 
intended to be the maximum time and may be reduced based on urgency and 
need, by agreement of the parties. If the Self-Governance Tribe requests 
reduced timeframes for action due to unusual or special conditions (such 
as limited construction periods), the Secretary shall make a good faith 
effort to accommodate the requested timeframes.



Sec. 137.364  What constitutes a significant change in the original scope of 

work?

    A significant change in the original scope of work is:
    (a) A change that would result in a cost that exceeds the total of 
the project funds available and the Self-Governance Tribe's contingency 
funds; or
    (b) A material departure from the original scope of work, including 
substantial departure from timelines negotiated in the construction 
project agreement.



Sec. 137.365  What is the procedure for the Secretary's review and approval of 

project planning and design documents submitted by the Self-Governance Tribe?

    (a) The Secretary shall review and approve planning documents to 
ensure compliance with planning standards identified in the construction 
project agreement. The Secretary shall review and approve design 
documents for general compliance with requirements of the construction 
project agreement.
    (b) The Secretary shall promptly notify the Self-Governance Tribe in 
writing of any concerns or issues that may lead to disapproval. The 
Secretary shall share relevant information and documents, and make a 
good faith effort to resolve all issues and concerns of the Self-
Governance Tribe. If, after consultation with the Self-Governance Tribe, 
the Secretary intends to disapprove the documents, then the Secretary 
shall follow the procedures set forth in Sec. 137.333.
    (c) The time allowed for Secretarial review, comment, and approval 
of planning and design documents is 21 days, unless otherwise agreed to 
by the Self-Governance Tribe in writing. Absence of a written response 
by the Secretary within 21 days shall be deemed approved.

[[Page 810]]



Sec. 137.366  May the Secretary conduct onsite project oversight visits?

    Yes, the Secretary may conduct onsite project oversight visits 
semiannually or on an alternate schedule negotiated in the construction 
project agreement. The Secretary must provide the Self-Governance Tribe 
with reasonable advance written notice to assist the Self-Governance 
Tribe in coordinating the visit. The purpose of the visit is review the 
progress under the construction project agreement. At the request of the 
Self-Governance Tribe, the Secretary must provide the Self-Governance 
Tribe a written site visit report.



Sec. 137.367  May the Secretary issue a stop work order under a construction 

project agreement?

    No, the Secretary has no role in the day-to-day management of a 
construction project.



Sec. 137.368  Is the Secretary responsible for oversight and compliance of 

health and safety codes during construction projects being performed by a 

Self-Governance Tribe under section 509 of the Act [25 U.S.C. 488aaa-8]?

    No, the Secretary is not responsible for oversight and compliance of 
health and safety codes during construction projects being performed by 
a Self-Governance Tribe under section 509 of the Act [25 U.S.C. 488aaa-
8].

                                  Other



Sec. 137.370  Do all provisions of this part apply to construction project 

agreements under this subpart?

    Yes, to the extent the provisions are not inconsistent with the 
provisions in this subpart. Provisions that do not apply include: 
programmatic reports and data requirements; reassumption; compact and 
funding agreement review, approval, and final offer process; and compact 
and funding agreement contents.



Sec. 137.371  Who takes title to real property purchased with funds provided 

under a construction project agreement?

    The Self-Governance Tribe takes title to the real property unless 
the Self-Governance Tribe requests that the Secretary take title to the 
property.



Sec. 137.372  Does the Secretary have a role in the fee-to-trust process when 

real property is purchased with construction project agreement funds?

    No, the Secretary does not have a role in the fee-to-trust process 
except to provide technical assistance if requested by the Self-
Governance Tribe.



Sec. 137.373  Do Federal real property laws, regulations and procedures that 

apply to the Secretary also apply to Self-Governance Tribes that purchase real 

property with funds provided under a construction project agreement?

    No, unless the Self-Governance Tribe has requested the Secretary to 
take fee title to the property.



Sec. 137.374  Does the Secretary have a role in reviewing or monitoring a 

Self-Governance Tribe's actions in acquiring or leasing real property with 

funds provided under a construction project agreement?

    No, unless the Self-Governance Tribe has requested the Secretary 
take fee title to the property. The Self-Governance Tribe is responsible 
for acquiring all real property needed to perform a construction project 
under a construction project agreement, not the Secretary. The Secretary 
shall not withhold funds or refuse to enter into a construction project 
agreement because of a disagreement between the Self-Governance Tribe 
and the Secretary over the Self-Governance Tribe's decisions to purchase 
or lease real property.



Sec. 137.375  Are Tribally-owned facilities constructed under section 509 of 

the Act [25 U.S.C. 458aaa-8] eligible for replacement, maintenance, and 

improvement funds on the same basis as if title to such property were vested 

in the United States?

    Yes, Tribally-owned facilities constructed under section 509 of the 
Act [25 U.S.C. 458aaa-8] are eligible for replacement, maintenance, and 
improvement funds on the same basis as if title to such property were 
vested in the United States.

[[Page 811]]



Sec. 137.376  Are design and construction projects performed by Self-

Governance Tribes under section 509 of the Act [25 U.S.C. 458aaa-8] subject to 

Federal metric requirements?

    No, however, the Self-Governance Tribe and the Secretary may 
negotiate the use of Federal metric requirements in the construction 
project agreement when the Self-Governance Tribe will design and/or 
construct an IHS facility that the Secretary will own and operate.



Sec. 137.377  Do Federal procurement laws and regulations apply to 

construction project agreements performed under section 509 of the Act [25 

U.S.C. 458aaa-8]?

    No, unless otherwise agreed to by the Tribe, no provision of the 
Office of Federal Procurement Policy Act, the Federal Acquisition 
Regulations issued pursuant thereto, or any other law or regulation 
pertaining to Federal procurement (including Executive Orders) shall 
apply to any construction project conducted under section 509 of the Act 
[25 U.S.C. 458aaa-8]. The Secretary and the Self-Governance Tribe may 
negotiate to apply specific provisions of the Office of Federal 
Procurement and Policy Act and Federal Acquisition Regulations to a 
construction project agreement or funding agreement. Absent a negotiated 
agreement, such provisions and regulatory requirements do not apply.



Sec. 137.378  Do the Federal Davis-Bacon Act and wage rates apply to 

construction projects performed by Self-Governance Tribes using their own 

funds or other non-Federal funds?

    No, the Federal Davis-Bacon Act and wage rates do not apply to 
construction projects performed by Self-Governance Tribes using their 
own funds or other non-Federal funds.



Sec. 137.379  Do Davis-Bacon wage rates apply to construction projects 

performed by Self-Governance Tribes using Federal funds?

    Davis-Bacon Act wage rates only apply to laborers and mechanics 
employed by the contractors and subcontractors (excluding Indian Tribes, 
inter-Tribal consortia, and Tribal organizations) retained by Self-
Governance Tribes to perform construction. The Davis-Bacon Act and wage 
rates do not apply when Self-Governance Tribes perform work with their 
own employees.



                 Subpart O_Secretarial Responsibilities

                             Budget Request



Sec. 137.401  What role does Tribal consultation play in the IHS annual budget 

request process?

    The IHS will consult with Tribes on budget issues consistent with 
Administration policy on Tribal consultation.

                                 Reports



Sec. 137.405  Is the Secretary required to report to Congress on 

administration of Title V and the funding requirements presently funded or 

unfunded?

    Yes, no later than January 1 of each year after the date of 
enactment of the Tribal Self-Governance Amendments of 2000, the 
Secretary shall submit to the Committee on Indian Affairs of the Senate 
and the Committee on Resources of the House of Representatives a written 
report regarding the administration of Title V. The report shall include 
a detailed analysis of the funding requirements presently funded or 
unfunded for each Indian Tribe or Tribal organization, either directly 
by the Secretary, under self-determination contracts under Title I, or 
under compacts and funding agreements authorized under Title V.



Sec. 137.406  In compiling reports pursuant to this section, may the Secretary 

impose any reporting requirements on Self-Governance Tribes, not otherwise 

provided in Title V?

    No, in compiling reports pursuant to this section, the Secretary may 
not impose any reporting requirements on Self-Governance Tribes, not 
otherwise provided in Title V.

[[Page 812]]



Sec. 137.407  What guidelines will be used by the Secretary to compile 

information required for the report?

    The report shall be compiled from information contained in funding 
agreements, annual audit reports, and data of the Secretary regarding 
the disposition of Federal funds. The report must identify:
    (a) The relative costs and benefits of self-governance, including 
savings;
    (b) With particularity, all funds that are specifically or 
functionally related to the provision by the Secretary of services and 
benefits to Self-Governance Tribes and their members;
    (c) The funds transferred to each Self-Governance Tribe and the 
corresponding reduction in the Federal bureaucracy;
    (d) The funding formula for individual Tribal shares of all 
headquarters' funds, together with the comments of affected Self-
Governance Tribes, developed under Sec. 137.405 of this subpart; and
    (e) Amounts expended in the preceding fiscal year to carry out 
inherent Federal functions, including an identification of those 
functions by type and location.



                            Subpart P_Appeals



Sec. 137.410  For the purposes of section 110 of the Act [25 U.S.C. 450m-1] 

does the term contract include compacts, funding agreements, and construction 

project agreements entered into under Title V?

    Yes, for the purposes of section 110 of the Act [25 U.S.C. 450m-1] 
the term ``contract'' includes compacts, funding agreements, and 
construction project agreements entered into under Title V.

                           Post-Award Disputes



Sec. 137.412  Do the regulations at 25 CFR Part 900, Subpart N apply to 

compacts, funding agreements, and construction project agreements entered into 

under title V?

    Yes, the regulations at 25 CFR Part 900, Subpart N apply to 
compacts, funding agreements, and construction project agreements 
entered into under Title V.

                           Pre-Award Disputes



Sec. 137.415  What decisions may an Indian Tribe appeal under Sec. 137.415 

through 137.436?

    An Indian Tribe may appeal:
    (a) A decision to reject a final offer, or a portion thereof, under 
section 507(b) of the Act [25 U.S.C. 458aaa-6(b)];
    (b) A decision to reject a proposed amendment to a compact or 
funding agreement, or a portion thereof, under section 507(b) of the Act 
[25 U.S.C. 458aaa-6(b)];
    (c) A decision to rescind and reassume a compact or funding 
agreement, in whole or in part, under section 507(a)(2) of the Act [25 
U.S.C. 458aaa-6(a)(2)], except for immediate reassumptions under section 
507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)];
    (d) A decision to reject a final construction project proposal, or a 
portion thereof, under section 509(b) of the Act [25 U.S.C. 458aaa-8(b)] 
and subpart N of this part; and
    (e) For construction project agreements carried out under section 
509 of the Act [25 U.S.C. 458aaa-8], a decision to reject project 
planning documents, design documents, or proposed amendments submitted 
by a Self-Governance Tribe under section 509(f) of the Act [25 U.S.C. 
458aaa-8(f)] and subpart N of this part.



Sec. 137.416  Do Sec. Sec. 137.415 through 137.436 apply to any other 

disputes?

    No, Sec. Sec. 137.415 through 137.436 only apply to decisions 
listed in Sec. 137.415. Specifically, Sec. Sec. 137.415 through 
137.436 do not apply to any other dispute, including, but not limited 
to:
    (a) Disputes arising under the terms of a compact, funding 
agreement, or construction project agreement that has been awarded;
    (b) Disputes arising from immediate reassumptions under section 
507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)] and Sec. 137.261 
and 137.262, which are covered under Sec. 137.440 through 137.445.
    (c) Other post-award contract disputes, which are covered under 
Sec. 137.412.
    (d) Denials under the Freedom of Information Act, 5 U.S.C. 552, 
which may be appealed under 45 CFR part 5.

[[Page 813]]

    (e) Decisions relating to the award of grants under section 503(e) 
of the Act [25 U.S.C. 458aaa-2(e)], which may be appealed under 45 CFR 
part 5.



Sec. 137.417  What procedures apply to Interior Board of Indian Appeals (IBIA) 

proceedings?

    The IBIA may use the procedures set forth in 43 CFR 4.22-4.27 as a 
guide.



Sec. 137.418  How does an Indian Tribe know where and when to file its appeal 

from decisions made by IHS?

    Every decision in any of the areas listed in Sec. 137.415 must 
contain information which shall tell the Indian Tribe where and when to 
file the Indian Tribe's appeal. Each decision shall include the 
following statement:

    Within 30 days of the receipt of this decision, you may request an 
informal conference under 42 CFR 137.421, or appeal this decision under 
42 CFR 137.425 to the Interior Board of Indian Appeals (IBIA). Should 
you decide to appeal this decision, you may request a hearing on the 
record. An appeal to the IBIA under 42 CFR 137.425 shall be filed with 
the IBIA by certified mail or by hand delivery at the following address: 
Board of Indian Appeals, U.S. Department of the Interior, 4015 Wilson 
Boulevard, Arlington, VA 22203. You shall serve copies of your Notice of 
Appeal on the Secretary and on the official whose decision is being 
appealed. You shall certify to the IBIA that you have served these 
copies.



Sec. 137.419  What authority does the IBIA have under Sec. Sec. 137.415 

through 137.436?

    The IBIA has the authority:
    (a) to conduct a hearing on the record;
    (b) to permit the parties to engage in full discovery relevant to 
any issue raised in the matter;
    (c) to issue a recommended decision; and
    (d) to take such action as necessary to insure rights specified in 
Sec. 137.430.



Sec. 137.420  Does an Indian Tribe have any options besides an appeal?

    Yes, the Indian Tribe may request an informal conference. An 
informal conference is a way to resolve issues as quickly as possible, 
without the need for a formal hearing. Or, the Indian Tribe may, in lieu 
of filing an administrative appeal under this subpart or upon completion 
of an informal conference, file an action in Federal court pursuant to 
section 110 of the Act [25 U.S.C. 450m-1].



Sec. 137.421  How does an Indian Tribe request an informal conference?

    The Indian Tribe must file its request for an informal conference 
with the office of the person whose decision it is appealing, within 30 
days of the day it receives the decision. The Indian Tribe may either 
hand-deliver the request for an informal conference to that person's 
office, or mail it by certified mail, return receipt requested. If the 
Indian Tribe mails the request, it will be considered filed on the date 
the Indian Tribe mailed it by certified mail.



Sec. 137.422  How is an informal conference held?

    (a) The informal conference must be held within 30 days of the date 
the request was received, unless the Indian Tribe and the authorized 
representative of the Secretary agree on another date.
    (b) If possible, the informal conference will be held at the Indian 
Tribe's office. If the meeting cannot be held at the Indian Tribe's 
office and is held more than fifty miles from its office, the Secretary 
must arrange to pay transportation costs and per diem for incidental 
expenses to allow for adequate representation of the Indian Tribe.
    (c) The informal conference must be conducted by a designated 
representative of the Secretary.
    (d) Only people who are the designated representatives of the Indian 
Tribe, or authorized by the Secretary are allowed to make presentations 
at the informal conference. Such designated representatives may include 
Office of Tribal Self-Governance.



Sec. 137.423  What happens after the informal conference?

    (a) Within 10 days of the informal conference, the person who 
conducted the informal conference must prepare and mail to the Indian 
Tribe a written report which summarizes what happened at the informal 
conference and a recommended decision.

[[Page 814]]

    (b) Every report of an informal conference must contain the 
following language:

    Within 30 days of the receipt of the recommended decision from the 
informal conference, you may file an appeal of the initial decision of 
the DHHS agency with the Interior Board of Indian Appeals (IBIA) under 
42 CFR 137.425. You may request a hearing on the record. An appeal to 
the IBIA under 42 CFR 137.425 shall be filed with the IBIA by certified 
mail or hand delivery at the following address: Board of Indian Appeals, 
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 
22203. You shall serve copies of your Notice of Appeal on the Secretary 
and on the official whose decision is being appealed. You shall certify 
to the IBIA that you have served these copies. Alternatively you may 
file an action in Federal court pursuant to section 110 of the Act. [25 
U.S.C. 450m-1].



Sec. 137.424  Is the recommended decision from the informal conference final 

for the Secretary?

    No. If the Indian Tribe is dissatisfied with the recommended 
decision from the informal conference, it may still appeal the initial 
decision within 30 days of receiving the recommended decision and the 
report of the informal conference. If the Indian Tribe does not file a 
notice of appeal within 30 days, or before the expiration of the 
extension it has received under Sec. 137.426 , the recommended decision 
of the informal conference becomes final for the Secretary and may be 
appealed to Federal court pursuant to section 110 of the Act [25 U.S.C. 
450m-1].



Sec. 137.425  How does an Indian Tribe appeal the initial decision if it does 

not request an informal conference or if it does not agree with the 

recommended decision resulting from the informal conference?

    (a) If the Indian Tribe decides to appeal, it must file a notice of 
appeal with the IBIA within 30 days of receiving either the initial 
decision or the recommended decision from the informal conference.
    (b) The Indian Tribe may either hand-deliver the notice of appeal to 
the IBIA, or mail it by certified mail, return receipt requested. If the 
Indian Tribe mails the Notice of Appeal, it will be considered filed on 
the date the Indian Tribe mailed it by certified mail. The Indian Tribe 
should mail the notice of appeal to: Board of Indian Appeals, U.S. 
Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203.
    (c) The Notice of Appeal must:
    (1) Briefly state why the Indian Tribe thinks the initial decision 
is wrong;
    (2) Briefly identify the issues involved in the appeal; and
    (3) State whether the Indian Tribe wants a hearing on the record, or 
whether the Indian Tribe wants to waive its right to a hearing.
    (d) The Indian Tribe must serve a copy of the notice of appeal upon 
the official whose decision it is appealing. The Indian Tribe must 
certify to the IBIA that it has done so.
    (e) The authorized representative of the Secretary will be 
considered a party to all appeals filed with the IBIA under the Act.
    (f) In lieu of filing an administrative appeal an Indian Tribe may 
proceed directly to Federal court pursuant to section 110 of the Act [25 
U.S.C. 450m-1].



Sec. 137.426  May an Indian Tribe get an extension of time to file a notice of 

appeal?

    Yes, if the Indian Tribe needs additional time, the Indian Tribe may 
request an extension of time to file its Notice of Appeal with the IBIA 
within 60 days of receiving either the initial decision or the 
recommended decision resulting from the informal conference. The request 
of the Indian Tribe must be in writing, and must give a reason for not 
filing its notice of appeal within the 30-day time period. If the Indian 
Tribe has a valid reason for not filing its notice of appeal on time, it 
may receive an extension.



Sec. 137.427  What happens after an Indian Tribe files an appeal?

    (a) Within 5 days of receiving the Indian Tribe's notice of appeal, 
the IBIA will decide whether the appeal falls under Sec. 137.415. If 
so, the Indian Tribe is entitled to a hearing.
    (b) If the IBIA cannot make that decision based on the information 
included in the notice of appeal, the IBIA may ask for additional 
statements

[[Page 815]]

from the Indian Tribe, or from the appropriate Federal agency. If the 
IBIA asks for more statements, it will make its decision within 5 days 
of receiving those statements.
    (c) If the IBIA decides that the Indian Tribe is not entitled to a 
hearing or if the Indian Tribe has waived its right to a hearing on the 
record, the IBIA will dismiss the appeal and inform the Indian Tribe 
that it is not entitled to a hearing or has waived its right to a 
hearing.



Sec. 137.428  How is a hearing arranged?

    (a) If a hearing is to be held, the IBIA will refer the Indian 
Tribe's case to the Hearings Division of the Office of Hearings and 
Appeals of the U.S. Department of the Interior. The case will then be 
assigned to an Administrative Law Judge (ALJ), appointed under 5 U.S.C. 
3105.
    (b) Within 15 days of the date of the referral, the ALJ will hold a 
pre-hearing conference, by telephone or in person, to decide whether an 
evidentiary hearing is necessary, or whether it is possible to decide 
the appeal based on the written record. At the pre-hearing conference 
the ALJ will provide for:
    (1) A briefing and discovery schedule;
    (2) A schedule for the exchange of information, including, but not 
limited to witness and exhibit lists, if an evidentiary hearing is to be 
held;
    (3) The simplification or clarification of issues;
    (4) The limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence, if an evidentiary hearing is to be held;
    (5) The possibility of agreement disposing of all or any of the 
issues in dispute; and
    (6) Such other matters as may aid in the disposition of the appeal.
    (c) The ALJ shall order a written record to be made of any 
conference results that are not reflected in a transcript.



Sec. 137.429  What happens when a hearing is necessary?

    (a) The ALJ must hold a hearing within 90 days of the date of the 
order referring the appeal to the ALJ, unless the parties agree to have 
the hearing on a later date.
    (b) At least 30 days before the hearing, the Secretary must file and 
serve the Indian Tribe with a response to the notice of appeal.
    (c) If the hearing is held more than 50 miles from the Indian 
Tribe's office, the Secretary must arrange to pay transportation costs 
and per diem for incidental expenses to allow for adequate 
representation of the Indian Tribe.
    (d) The hearing shall be conducted in accordance with the 
Administrative Procedure Act, 5 U.S.C. 556.



Sec. 137.430  What is the Secretary's burden of proof for appeals covered by 

Sec. 137.415?

    As required by section 518 of the Act [25 U.S.C. 458aaa-17], the 
Secretary must demonstrate by clear and convincing evidence the validity 
of the grounds for the decision made and that the decision is fully 
consistent with provisions and policies of the Act.



Sec. 137.431  What rights do Indian Tribes and the Secretary have during the 

appeal process?

    Both the Indian Tribe and the Secretary have the same rights during 
the appeal process. These rights include the right to:
    (a) Be represented by legal counsel;
    (b) Have the parties provide witnesses who have knowledge of the 
relevant issues, including specific witnesses with that knowledge, who 
are requested by either party;
    (c) Cross-examine witnesses;
    (d) Introduce oral or documentary evidence, or both;
    (e) Require that oral testimony be under oath;
    (f) Receive a copy of the transcript of the hearing, and copies of 
all documentary evidence which is introduced at the hearing;
    (g) Compel the presence of witnesses, or the production of 
documents, or both, by subpoena at hearings or at depositions;
    (h) Take depositions, to request the production of documents, to 
serve interrogatories on other parties, and to request admissions; and
    (i) Any other procedural rights under the Administrative Procedure 
Act, 5 U.S.C. 556.

[[Page 816]]



Sec. 137.432  What happens after the hearing?

    (a) Within 30 days of the end of the formal hearing or any post-
hearing briefing schedule established by the ALJ, the ALJ shall send all 
the parties a recommended decision, by certified mail, return receipt 
requested. The recommended decision must contain the ALJ's findings of 
fact and conclusions of law on all the issues. The recommended decision 
shall also state that the Indian Tribe has the right to object to the 
recommended decision.
    (b) The recommended decision shall contain the following statement:

    Within 30 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Secretary under 
42 CFR 137.43. An appeal to the Secretary under 42 CFR 137.43 shall be 
filed at the following address: Department of Health and Human Services, 
200 Independence Ave. S.W., Washington, DC, 20201. You shall serve 
copies of your notice of appeal on the official whose decision is being 
appealed. You shall certify to the Secretary that you have served this 
copy. If neither party files an objection to the recommended decision 
within 30 days, the recommended decision will become final.



Sec. 137.433  Is the recommended decision always final?

    No, any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 30 
days of receiving the recommended decision. Objections must be served on 
all other parties. The recommended decision shall become final for the 
Secretary 30 days after the Indian Tribe receives the ALJs recommended 
decision, unless a written statement of objections is filed with the 
Secretary during the 30-day period. If no party files a written 
statement of objections within 30 days, the recommended decision shall 
become final for the Secretary.



Sec. 137.434  If an Indian Tribe objects to the recommended decision, what 

will the Secretary do?

    (a) The Secretary has 45 days from the date it receives the final 
authorized submission in the appeal to modify, adopt, or reverse the 
recommended decision. The Secretary also may remand the case to the IBIA 
for further proceedings. If the Secretary does not modify or reverse the 
recommended decision or remand the case to the IBIA during that time, 
the recommended decision automatically becomes final.
    (b) When reviewing the recommended decision, the Secretary may 
consider and decide all issues properly raised by any party to the 
appeal, based on the record.
    (c) The decision of the Secretary must:
    (1) Be in writing;
    (2) Specify the findings of fact or conclusions of law that are 
modified or reversed;
    (3) Give reasons for the decision, based on the record; and
    (4) State that the decision is final for the Department.



Sec. 137.435  Will an appeal adversely affect the Indian Tribe's rights in 

other compact, funding negotiations, or construction project agreement?

    No, a pending appeal will not adversely affect or prevent the 
negotiation or award of another compact, funding agreement, or 
construction project agreement.



Sec. 137.436  Will the decisions on appeal be available for the public to 

review?

    Yes, all final decisions must be published for the Department under 
this subpart. Decisions can be found on the Department's website.

    Appeals of an Immediate Reassumption of a Self-Governance Program



Sec. 137.440  What happens in the case of an immediate reassumption under 

section 507(a)(2)(C) of the Act [25 U.S.C. 458aaa-6(a)(2)(C)]?

    (a) The Secretary may, upon written notification to the Self-
Governance Tribe, immediately reassume operation of a program, service, 
function, or activity (or portion thereof) if:
    (1) The Secretary makes a finding of imminent substantial and 
irreparable endangerment of the public health caused by an act or 
omission of the Self-Governance Tribe; and

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    (2) The endangerment arises out of a failure to carry out the 
compact or funding agreement.
    (b) When the Secretary advises a Self-Governance Tribe that the 
Secretary intends to take an action referred to in paragraph (a) of this 
section, the Secretary must also notify the Deputy Director of the 
Office of Hearings and Appeals, Department of the Interior, 4015 Wilson 
Boulevard, Arlington, VA 22203.



Sec. 137.441  Will there be a hearing?

    Yes, unless the Self-Governance Tribe waives its right to a hearing 
in writing. The Deputy Director of the Office of Hearings and Appeals 
must appoint an Administrative Law Judge to hold a hearing,
    (a) The hearing must be held within 10 days of the date of the 
notice referred to in Sec. 137.440 unless the Self-Governance Tribe 
agrees to a later date.
    (b) If possible, the hearing will be held at the office of the Self-
Governance Tribe. If the hearing is held more than 50 miles from the 
office of the Self-Governance Tribe, the Secretary must arrange to pay 
transportation costs and per diem for incidental expenses. This will 
allow for adequate representation of the Self-Governance Tribe.



Sec. 137.442  What happens after the hearing?

    (a) Within 30 days after the end of the hearing or any post-hearing 
briefing schedule established by the ALJ, the ALJ must send all parties 
a recommended decision by certified mail, return receipt requested. The 
recommended decision shall contain the ALJs findings of fact and 
conclusions of law on all the issues. The recommended decision must also 
state that the Self-Governance Tribe has the right to object to the 
recommended decision.
    (b) The recommended decision must contain the following statement:

    Within 15 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Secretary under 
Sec. 137.443. An appeal to the Secretary under 25 CFR 900.165(b) shall 
be filed at the following address: Department of Health and Human 
Services, 200 Independence Ave. SW., Washington, DC 20201. You shall 
serve copies of your notice of appeal on the official whose decision is 
being appealed. You shall certify to the Secretary that you have served 
this copy. If neither party files an objection to the recommended 
decision within 15 days, the recommended decision will become final.



Sec. 137.443  Is the recommended decision always final?

    No, any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 15 
days of receiving the recommended decision. The objecting party must 
serve a copy of its objections on the other party. The recommended 
decision will become final 15 days after the Self-Governance Tribe 
receives the ALJs recommended decision, unless a written statement of 
objections is filed with the Secretary during the 15-day period. If no 
party files a written statement of objections within 15 days, the 
recommended decision will become final.



Sec. 137.444  If a Self-Governance Tribe objects to the recommended decision, 

what action will the Secretary take?

    (a) The Secretary has 15 days from the date the Secretary receives 
timely written objections to modify, adopt, or reverse the recommended 
decision. If the Secretary does not modify or reverse the recommended 
decision during that time, the recommended decision automatically 
becomes final.
    (b) When reviewing the recommended decision, the Secretary may 
consider and decide all issues properly raised by any party to the 
appeal, based on the record.
    (c) The decision of the Secretary must:
    (1) Be in writing;
    (2) Specify the findings of fact or conclusions of law that are 
modified or reversed;
    (3) Give reasons for the decision, based on the record; and
    (4) State that the decision is final for the Secretary.

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Sec. 137.445  Will an immediate reassumption appeal adversely affect the Self-

Governance Tribe's rights in other self-governance negotiations?

    No, a pending appeal will not adversely affect or prevent the 
negotiation or award of another compact, funding agreement, or 
construction project agreement.

                    Equal Access to Justice Act Fees



Sec. 137.450  Does the Equal Access to Justice Act (EAJA) apply to appeals 

under this subpart?

    Yes, EAJA claims against the Department will be heard pursuant to 25 
CFR 900.177.

                        PARTS 138-199 [RESERVED]