Tribes on How To Reduce Private Liability Costs," which we prepared. I must stress, however,

that the views I express here today are my own and do not reflect the views of the Federal

agencies that funded our study or the representatives of those agencies who served on our Technical Advisory Committee.

Description of Purposes and Methodology of the Study

In a series of steps beginning in 1987, Congress extended the protections of the Federal Tort Claims Act (FTCA) to tribes and tribal organizations carrying out programs under the Indian Self-Determination and Education Assistance Act (ISDEAA) (P.L. 93-638). As you know, the FTCA provides immunity for certain tribal entities and individuals against common law tort claims arising from acts or omissions that are both within the scope of self-determination contracts and within the scope of the individual's employment as a matter of state law. Although not "insurance" in the conventional sense, the FTCA operates in a way similar to insurance by protecting covered entities and individuals from direct and personal tort liability, thus reducing or eliminating the need for commercially purchased liability insurance.' One objective of Congress in extending FTCA coverage was to reduce the need for private liability insurance for self-determination activities. Yet today, a decade later, some tribes, tribal organizations, and insurers still appear to be unaware of either the existence or the breadth of FTCA coverage with

'The term "coverage" under the FTCA is used as a shorthand for the principle that the FTCA provides immunity to P.L. 93-638 contractors and compactors and their employees from direct liability for certain injuries they may have committed. If a claim is "covered" under the FTCA (i.e., meets all the requirements specified in the Act), the United States steps into the shoes of the tribal defendant(s) and assumes liability for the claim. Consequently, private liability insurance is unnecessary for claims covered by the FTCA.

respect to P.L. 93-638 activities. The cost savings that were expected to result from extending FTCA coverage to tribes and tribal organizations do not appear to have been fully realized.

For a number of years after FTCA coverage was extended to self-determination contractors, tribal representatives expressed concern about the availability and cost of private liability insurance. Some tribes had difficulty in obtaining private liability insurance at all; others complained that the quoted rates seemed inordinately high. Since many tribal activities are funded under self-determination contracts or compacts and potential tort claims involving those activities are generally covered under the Federal Tort Claims Act (FTCA), the question was: why were tribes paying so much for commercial liability coverage that was merely supposed to supplement their immunity from tort liability under the FTCA?

The U.S. Department of Health and Human Services, in conjunction with the Departments of Interior and Justice, contracted with the Center for Health Policy Research (CHPR) of the George Washington University Medical Center to examine tribal experiences in purchasing private liability insurance to supplement coverage under the FTCA. The Center was asked to assess tribal access to commercial liability insurance and recommend strategies to help the tribes find more affordable insurance to supplement or "wrap around" their FTCA coverage. To empower tribes to be better purchasers of commercial liability insurance, however, it was crucial that they better understand the extent to which their liability for potential negligence was already covered under the FTCA. Until tribes had a more complete understanding of the extent of their tort immunity under the FTCA, it seemed unlikely that they could adequately assess their need for supplemental private liability insurance. So our study was focused on issues

surrounding tribal experiences with private liability insurance and the FTCA.

The specific purposes of the study were:

(1)

(2)

(3)

to examine access to private liability insurance by tribes and tribal organizations operating programs under the Indian Self-Determination and Education Assistance Act (ISDEAA), P.L. 93-638, and the coordination of that insurance with the immunity from tort liability for self-determination contractors and compactors and their employees provided under the FTCA;

to identify barriers to the appropriate pricing of private liability insurance; and

to recommend strategies to assist contracting and compacting tribes and tribal organizations to assess their need for private liability insurance and obtain this insurance at reasonable prices.

To help guide the study, we established a technical advisory committee (TAC). The TAC was comprised of representatives of three Cabinet departments: (1) the Department of Justice (DOJ), Torts Branch, Civil Division; (2) the Department of Health and Human Services (DHHS), including representatives of the Office of the Assistant Secretary for Planning and Evaluation (ASPE), the Office of Assistant Secretary for Management and Budget (ASMB), the Office of the General Counsel (OGC) and the Indian Health Service (IHS); and (3) the Department of the Interior (DOI), including representatives of the Office of the Solicitor and the Bureau of Indian Affairs (BIA). During the course of this study, the TAC met regularly to assess the study's progress and make recommendations to the research project staff.

All federally recognized tribes and national and regional tribal organizations received an announcement from the IHS describing the study objectives, the different elements of the study, and the CHPR project staff. The announcement invited tribes and tribal organizations to contact representatives from the BIA, IHS, or research project staff if they wanted to participate in the study. We specifically sought information about both positive and negative experiences in

securing private liability insurance. Twenty-two tribes and tribal organizations volunteered to be

included in the study.

Let me identify up front some of the limitations of our study. Because participation in the study was voluntary, we made no attempt to categorize or compare tribal experiences throughout Indian country. Our goal simply was to provide information that would help tribes secure appropriate and affordable private liability insurance. In addition, the study was limited in funding and scope; therefore, it was not possible to select a representative sample of all P.L. 93638 contractors and compactors. It was clear from the study's inception that because of the selfselected nature of the participants, the study would not necessarily yield statistically valid data that could be generalized to all P.L. 93-638 contractors and compactors. But we expected, however, that the participating tribes would provide useful information about their problems and successes in obtaining appropriate and reasonably priced liability insurance policies, and that it was valuable to share this information more broadly with other tribes.

As it turned out, the twenty-two tribes and tribal organizations that volunteered to participate in the study constituted a geographically diverse group and provided contact with tribal governments, health clinics and other tribal entities.

Researchers held initial telephone conversations with each of the tribes and tribal organizations to determine their familiarity with and understanding of the FTCA and the FTCA claims process, and to learn about their experiences in obtaining private insurance coverage. A series of key questions were developed and refined to serve as a general guide for these conversations, although specific questions and follow-up requests for information were often tailored to the individual participant's responses.

During the telephone interview and site visit stages of the project, tribal participants were

asked to supply names of brokers and insurance companies providing private liability coverage to them either currently or in the past. These brokers and insurance companies were contacted and invited to participate in the study. Although some of them agreed to participate, the nonresponse rate was high, particularly among insurance companies, even after follow-up telephone calls. Nearly all of the brokers and insurance companies providing coverage to site visit participants, however, agreed to participate in the study; but obtaining useful information from the insurance companies was substantially more difficult than gathering information from the

brokers.

An important issue in negotiating private insurance coverage is the interaction between the FTCA and supplemental private insurance. Thus, at the recommendation of the TAC, individuals in the DOI field solicitors' offices and in the DHHS Office of the General Counsel

were interviewed to obtain background information with respect to the FTCA claims filing and coverage experience of the tribes. Representatives of the Civil Torts Division of the DOJ were also interviewed during this preliminary information-gathering phase of the study. Another meeting with DOJ occurred at the end of the project to further clarify the FTCA administrative claims process and to discuss other substantive issues raised during the site visits and the tribal consultation meeting. Other opportunities for consultation and input from DOJ also took place during the drafting stages of the study and accompanying handbook as we consulted DOJ on several occasions to clarify issues as they arose.

In addition, several tribes and tribal organizations were willing to provide us with copies of their current insurance policies. Although we reviewed the terms of the policies themselves, they generally did not contain pricing information. During subsequent interviews, tribes and

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