[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
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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.
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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
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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.
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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.
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