§ 36.227 Recordkeeping, reporting and audit.

(a) The standard clauses regarding "Accounts, Audit, and Records" and "Examination of Records" as set forth in 41 CFR 3-4.60 apply to contracts awarded under the Act. Further, Recordkeeping will be in accordance with uniform Administrative Standards.

(b) In addition, where Federal financial assistance is involved in the contract effort, the following clause, which is also set forth in 41 CFR 3-4.60, will be incorporated as a special provision of such contracts:

REPORTS TO THE INDIAN PEOPLE

The contractor, as a recipient of Federal financial assistance, shall make reports and information available to the Indian people served or represented by the contractor. Such reports will reflect how the Federal assistance funds were utilized to the benefit of the Indian people served or represented as follows: (insert specific reporting requirements formats and method of distribution to the Indian people as may be prescribed in the scope of the contract and the Uniform Administrative Standards).

(c) Annual reporting. (1) For each fiscal year during which a tribal organization receives or expends funds pursuant to a contract under this subpart, the tribe which requested the contract must submit a report to the Area Director. The report shall include, but need not be limited to, an accounting of the amounts and purposes for which the contract funds were expended and information on the conduct of the program or services involved. The report shall include any other information requested by the Area Director and shall be submitted as follows:

(i) When the contract is with the governing body of an Indian tribe, the tribe shall submit the report to the Area Director.

(ii) When the contract is with a tribal organization other than the governing body of the tribe, the tribe has the option of having the tribal organization prepare the report and submit it to the tribe for review and approval before the tribe submits it to the Area Director.

(iii) When the contract benefits more than one tribe, the tribal organization shall prepare and submit the report to each of the tribes benefiting under the

contract. Each tribe shall endorse the report before submitting it to the Area Director.

(2) The annual report shall be submitted to the Area Director within 60 days of the end of the fiscal year in which the contract was performed. However, the period for submitting the report may be extended if there is just cause for such extension.

(3) In addition to the yearly reporting requirement given in paragraphs (a) and (b) of this section, the tribal contractor shall furnish other reports required by the Secretary.

§ 36.228 Availability of information.

(a) Except as otherwise provided herein and so long as the release of information does not constitute an unwarranted invasion of personal privacy, a tribal contractor under this subpart shall make all reports and information concerning the contract available to the Indian people served or represented by the contractor.

(b) A contractor shall hold confidential all information obtained by personnel under the contract from persons receiving services under the contract related to their examination, care, and treatment, and shall not release such information without the individual's 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 the program or otherwise protect the Public Health. Information may be disclosed in a form which does not identify particular individuals.

$36.229 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 or subcontract 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 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, willfully misapplied. stolen, or by fraud does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

§36.230 Contract revisions or amendments.

(a) Any contract made under this subpart may be revised or amended as deemed necessary to carry out the purposes of the program, project, or function being contracted. Those changes initiated by the Government shall be subject to the applicable contract Change Clauses prescribed in 41 CFR 34.6013 and 3-4.6014.

(b) However, a tribal contractor may make a written request for a revision or amendment of a contract to the Contracting Officer. Such requests will be treated in the same manner as initial Self-Determination Proposals and evaluated in accordance with the criteria specified in §36.208 of this subpart. If the contracting officer declines revision or amendment of the contract as requested, he shall notify the tribal organization in writing within 30 days after receiving the request. Thereafter, an appeal to the Contracting Officer's declination to amend the contract will follow the same processing and procedures outlined in §36.214 of this subpart.

§ 36.231 Retrocession of contract programs.

(a) Whenever an Indian tribe requests retrocession for any contract or portion thereof entered into under this Subpart, retrocession shall be in accordance with the clause titled "Retrocession" as set forth in 41 CFR 34.6013 and 3-4.6014, and shall be effective upon a date specified by the Contracting Officer but no later than 120 days after the date of the request from the tribe, except when the tribe and the Contracting Officer mutually agree on a later date.

(b) Immediately after a request for retrocession, representatives of the tribe and the Contracting Officer shall meet and take the following actions:

(1) Mutually agree on a plan for orderly transfer of responsibilities.

(2) Mutually agree on a plan for inventorying materials and supplies on hand.

(3) Establish an accounting of funds, current and anticipated obligations, and costs of operation until the retrocession date.

(4) Identify all records relating to the contract and to the contracted function.

(c) On the date of retrocession, the tribal contractor will deliver to the Contracting Officer all property, materials, supplies and records of whatever nature which have been identified as necessary for the continuation of the program, project or function.

(d) Within 30 calendar days after retrocession, the tribe will furnish the Contracting Officer with a report including but not limited to an accounting of the amounts and purposes for which Federal funds were expended, a description and evaluation of program accomplishments, and reasons why retrocession was requested.

(e) Retrocession of a contract by an Indian tribe shall be without prejudice to:

(1) Any other contract to which it is a party.

(2) Any other contracts it may request.

(3) Any future request to contract for the programs or services covered by the retroceded contract.

(f) Tribal assumption of retroceded contracts. Whenever an Indian tribe chooses to retrocede a contract operated by a tribal organization other than the tribal governing body, the tribal governing body may request to contract for the program. In such a case, the tribal governing body shall submit a contract proposal pursuant to this subpart.

§ 36.232 Contractor assistance.

To the extent practicable, the Director, Indian Health Service, shall, at the request of a tribal organization, provide technical assistance to the contractor in attempting to resolve problems or deficiencies in the performance of the contract and to assist the contractor in taking such corrective action as may be prescribed pursuant to § 36.233(a).

§ 36.233 Assumption and reassumption of contract programs.

(a) When the Director or his delegate determines that the performance of a contractor under these regulations involves (1) the violation of the rights or endangerment of the health, safety, or

welfare or any persons, or (2) gross negligence or the mismanagement in the handling or use of funds under the contract, he will, in writing, notify the contractor of such determination and will request that the contractor take such corrective action within such period of time as the Director or his delegate may prescribe.

(b) When the Director or his delegate determines that a contractor has not taken corrective action (as prescribed by him under paragraph (a) of this section) to his satisfaction, he may, after the contractor has been provided an opportunity for a hearing in accordance with paragraph (c) of this section, rescind the contract 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)(1) When the Director or his delegate has made a determination described in paragraph (b) of this section, he shall in writing notify the contractor of such determination and of the contractor's right to request a review of such determination and of the determination described in paragraph (a) of this section. Such notification by the Director or his delegate shall set forth the reasons for the determination in sufficient detail to enable the contractor to respond and shall inform the contractor of its right to a hearing on the record before a Contract Appeals Board described in paragraph (d) of this section. Upon the request of the contractor for a hearing, the Board, established pursuant to paragraph (d) of this section shall in writing within 10 days of the establishment notify the contractor of the time, place and date of the hearing which will be held not later than 45 days after the request for a hearing.

(2) Where the Director or his delegate determines that a contractor's performance under a contract awarded under this subpart poses an immediate threat to the safety of any person, he may immediately rescind the contract 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 a decision he will immediately notify the contractor of such action and the basis therefor; and offer the contractor an

opportunity for a hearing on the record before the Contract Appeals Board established pursuant to paragraph (d) of this section to be held within 10 days of each action.

(d)(1) The Contract Appeals Board shall be composed of 3 persons appointed by the Director, Indian Health Service. Such persons may not be selected from the immediate office of any person participating in the determinations at issue. The Board shall afford the contractor the right:

(i) To notice of the issues to be considered;

(ii) To be represented by counsel; (iii) To present witnesses on contractor's behalf;

(iv) To cross-examine other witnesses either orally or through written interrogatories; and

(v) To compel the appearance of Indian Health Service personnel or to take depositions of such persons at reasonable times and places.

(2) The Contracts Appeals Board shall make an initial written decision which shall become final with 20 days unless the Director, Indian Health Service or his representative modifies or reverses the decision. Any such decision by the Director of the Indian Health Service or his representative be in writing, shall be specific as to the reasons for such decision, and shall be considered final.

(3) Where Board is considering issues arising under paragraph (c)(2) of this section, the Board shall within 25 days after the conclusion of the hearing, notify all parties in writing of its decision, which shall be considered final.

(e) In any case where the officer has rescinded a contract under paragraphs (b) or (d) of this section, he may decline to enter into a new contract agreement with the contractor 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).

$36.234 Operation of retroceded or reassumed contracts.

(a) The IHS shall endeavor to provide to the tribe(s) and Indians served by a

retroceded or reassumed contract not less than the same quantity and quality of service it would have provided if there had been no contract.

(b) The IHS shall endeavor to provide to the tribe(s) and Indians served by a retroceded or reassumed contract not less than the same quantity and quality of permanent and temporary personnel that meet the U.S. Civil Service qualifications, it would have provided if there has been no contract.

(c) IHS officials cannot decline to accept a retroceded contract or to reassume a contract because they are unable to provide the quality and quantity of service and personnel required in paragraphs (a) and (b) of this section.

$36.235 Contract funds.

The tribal organization shall be entitled to be funded for direct and indirect costs at a level which is not less than would have been provided if the IHS had operated the program or portion thereof during the contract period.

§ 36.236 Unexpended funds under contract.

(a) If it becomes apparent during the contract term that the estimated amount of a contract under this subpart will be in excess of actual expenditures under the contract, the identified unexpended funds will be used to provide additional services or benefits within the scope or limitations of the contract.

(b) When both the tribal organization and the IHS agree that it is not practicable to spend all contract funds during the contract term, to the extent authorized by law unexpended funds may be carried over into the succeeding fiscal year contract. Unexpended funds carried over into a succeeding fiscal year shall be added to the contract amount for that fiscal year.

§ 36.237 Contract funding and renegotiation.

The following clause shall be included in contracts awarded under the Act which have a term of more than one year:

CONTRACT FUNDING AND RENEGOTIATION

Funds other than those appropriated during the fiscal year in which the contract commenced, that are included in the contract amount are subject to the availability of appropriations from Congress and there shall be no legal liability on the part of the Government in regard to such funds unless and until they are appropriated. Funds appropriated during the fiscal year in which the contract commenced that are included in the contract amount but not expended at the end of such fiscal year may be carried over and used for contract purposes in the succeeding fiscal year of the contracts operation or, may be used to provide additional services upon modifications of the contract to include such services therein.

Each succeeding year of the contract may be renegotiated prior to the end of the then current fiscal year in order to reflect changes that have taken place beyond the control of the contractor since the contract was originally negotiated or last renegotiated as is applicable.

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.

SUBDIVISION J-1-PROVISIONS OF GENERAL AND SPECIAL APPLICABILITY §36.301 Policy and applicability.

to

(a) Policy. (1) It is the policy of the Secretary to encourage Indians 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]

$36.302 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.

(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