Indian Self-Determination Under Public Law 93-638: What Are the Concerns?

under "Buy Indian" contracts (contracts with tribes for delivery of prescribed services). They believe IHS overregulates Public Law 93-638 programs, especially in restricting the health services the tribe can provide. Another contractor we visited does not believe that self-determination is being achieved because, among other reasons, the tribe is being directed on how to spend program funds. For example, the tribal officials wanted to give pay increases to staff under the contract. In order to give the increases, they had to seek approval from IHS. Tribal officials stated that it took 90 days to get the pay increases approved even though the increases were negotiated in the contract's scope-of-work section. This contractor also expressed concern over IHS's qualification requirements for the contractor staff. The tribal officials believe that they should be able to set staff qualifications to meet their needs. However, IHS guidelines require tribes hiring staff to meet IHS qualifications. Another tribe we visited also expressed concern with IHS's involvement in the contract's budget. The tribal official told us that once a contract budget is accepted by IHS, the tribe and not IHS should be responsible for assuring that the program operates within the budget. As an example, the official said that if the contractor needs another staff person to provide the contracted services, the tribe should be able to make that change without prior IHS approval.

Officials in another tribe expressed concern that they have no input in determining program budgets, and they do not know on what they are based. The tribal contract manager said that the tribe wants input in the budget process to ensure, as much as possible, that program budgets are based on tribal-specific needs. In addition, he felt that it was a violation of the tribe's self-determination rights to prohibit tribal input in the budget process.

The tribes and tribal organizations responding to our questionnaire indicate that IHS is limiting the Indian tribes' control over these programs. Responses from these tribes and tribal organizations indicate that they have concerns similar to those of the Indian contractors we visited and that they had major difficulty changing the way health services are being delivered under Public Law 93-638 contracts.

Contractors' concerns about difficulties in changing health services under a Public Law 93-638 contract are outlined in table 3.1.

Most Indian Groups
Believe Funding for
Contracts Is
Inadequate

IHS advised us that its responsibility is to administer the contract in a
manner that would assure that adequate health care is provided and
funds spent prudently. IHS uses as its guide for health care delivery the
various standards followed by the Public Health Service. IHS also
requires submission of detailed cost budgets and detailed change justifi-
cations if changes are requested from the originally approved budget.
The term "self-determination" mentioned in the title of Public Law
93-638 is in our opinion viewed differently by Indian contractors and
IHS. It is clear that the law attempts to enhance Indian self-determination
and increase Indian participation but within the context of the law and
IHS regulations. The law and regulations state the manner and extent to
which self-determination is to be achieved through the contracting pro-
cess. For example, the regulations and related IHS guidance discuss such
items as (1) how services should be delivered, (2) how funds will be allo-
cated in the contract, and (3) the roles and responsibilities of each party.
The law also makes IHS responsible for monitoring these contracts. In
addition, IHS is responsible for assuring that Indian tribal people receive
adequate health care, whether provided through a contract or directly
by IHS. Thus, the law and regulations deal with self-determination but
also delineate specific IHS responsibilities.

Seventy-two percent of the tribes and organizations responding to our questionnaire said IHS funding was inadequate for the contract services to be provided. Also, 85 percent of the respondents who now contract under Public Law 93-638 thought that the number of contract awards would decrease in the future. Some Indian contractors we visited were uncertain as to how IHS allocates funds and therefore distrusted IHS. According to some contractors, funds are made available to them in a manner not reflective of their needs. Because it was beyond the scope of

Indian Self-Determination Under Public Law 93-638: What Are the Concerns?

this review, we did not determine the adequacy of funding for the Public Law 93-638 contractors.

The funding of a Public Law 93-638 contract, according to IHS officials,
is based on estimates of the costs IHS was incurring for the activity when
it was providing the service directly-the "base recurring amount" of
the contract. The base the contractor receives can be increased if the
Congress provides funds to the specific tribe or tribal organization (the
tribe makes a specific appeal and receives funds) or if IHS receives addi-
tional funding (funds provided by the Congress for all tribes) and dis-
tributes it among the tribes and organizations.

But for Indian contractors that want to provide health services not previously provided by IHS, the funding is different. IHS performs a needs assessment and determines the cost to provide the service, then asks the Congress for the funds. Once funded by the Congress, this amount becomes the base recurring amount for that contract.

Our questionnaire results indicate 72 percent of the respondents believe that the funds provided by IHS for direct contracting costs are inadequate to deliver the services required under their contract, while 25 percent viewed the funds as adequate or better and 3 percent did not respond. Additionally, 59 percent stated that the funds provided for indirect contracting costs (tribal-related) were inadequate, 33 percent thought the funds were adequate, and 8 percent did not respond. Of those tribes and tribal organizations responding to our questionnaire who were also contracting to deliver health care services, 73 percent cited lack of funds from IHS as a major reason for not expanding their current Public Law 93-638 contract to provide more health services to tribal members. However, the amount of funds available for increasing contract amounts is related to the funds appropriated to IHS, and since IHS's budget has remained relatively constant for the past 3 fiscal years, the level of funds available for contracting has remained about the

same.

Tribes and tribal organizations expressed concern that future funding under Public Law 93-638 would decrease. Eighty percent of those responding to our questionnaire thought that the dollar amounts of IHS contract awards for health services would decrease over the next several years; 49 percent thought that the decrease would be substantial. Only 13 percent thought contract award amounts would stay the same or increase.

1

Indian Self-Determination Under Public Law
93-638: What Are the Concerns?

Tribes Would Like to
Assume More
Responsibility for
Managing Their
Activities

We asked tribes and tribal organizations through what sources they were currently receiving 14 different health care services, such as inpatient, outpatient, and dental care. For each service, we categorized the tribes into those currently having the service delivered solely by IHS and those that participated in the delivery of the service partly or solely through contracting under Public Law 93-638. We further asked the tribes and tribal organizations how they felt the service should be made available 5 years from now. The percentage of tribes and tribal organizations currently receiving each service solely through IHS that felt they should participate in the service delivery 5 years from now ranged from 44 to 79. For tribes and tribal organizations currently participating in delivery of the 14 services, from 78 to 93 percent said they should participate in the delivery 5 years from now.

Tables 3.2 and 3.3 present information for the 14 health care services for which information was obtained.

aPercents do not equal 100 because some tribes and organizations (1) did not respond to our question about the delivery of a particular service or (2) received the service from a source other than IHS or through Public Law 93-638 (i.e., the tribe or organization's own funds or other non-Indian sources, such as state or local governments).

"The number of tribes and organizations that responded that they were receiving a health service through a particular source. For example, 83 of the respondents said that they were getting inpatient care through IHS.