(1) Immediately rescind a conds or grant and reassume a programis

(2) Suspend, with dubte, or delay payment or a contract.

(When the Secretary advises an Inch westsibal organization that

the Secretary intends to take referred to in paragraph (a)(1) of thi section, the Sec Tano notify

the Deputy Director of the Office of Gbrings and Appeals, Department of Boulevard, the anterior. T Arlington, VA 22203. $900.171

Thearing?

The Deputy Director of the Office of sesines and Appeals shall appoint an Administrave të den (ALD) to hold a hearing.

(a) The hearing shall be held within 10 days of the date of the matter ferred to in § 900.120nees the Indian tribe or tribalganization agrees to a later date. If possible, the hearing will be hote Bica of the Indian tribe or tribal organization. Ir me woning is held more than 50 miles from the of of the Indian tribe or taile ryuuzation, the Secasty suall arrange to pay transportation costs and per diem for incidentertapots This will allow for adequate representation of the dian tribe or tribal organisatio

What happens after the hearing? Within 30 days after the end of the W post-hearing briefing schedule established by dan ALJ, the ALI shall send all parties a recommended decision by certified mail, sagen receipt requested. The Darmended decision shed contain the ALJ's findings of fact and conclusions of law on all the issues. ended decision shall also state that the Indian ang tribal organization has the right to duct to the recommended decision

(b) If the samvolves the Department of Health and Human Serices, the recommended decision shall com the following statement: Within 15 days of the rest of this recommended decision, voy file an objection to the Murmended decision with the Servery of Health and Human Services u 25 CFR 900.165(b). An appeal to the Secretly undePES CFR 900.165(b) shall be

Department of

ve. S.W., Washington, DC ou shall serve copies of your notice of ap Dismal whose decision is being appealed. You shall certify to the Secretary that you have served akupy. If neither party filles fection to the recommended decision within 15 days, the kommended decision will become final.

(C) If the appeal involves the Department of the interior

recommended decision shall contain the following statement:

Yes. EAJA claims

ist the DOI or the DHS be heard by the IBLA

THER 43 CER & 801 4 810 For DHHS. appeals & Fireward will be according to 25 CFR 900.165(b).

Subpert M-Federal Tort Claims Act
Coverage General Provisions

$900.180 What does this subpart cover? This subpart explains the applicability of the Federal Tort Claims Act (FTCA). This section covers:

(a) Coverage of claims arising out of the performance of medical-related functions under self-determination contracts:

(b) Coverage of claims arising out of the performance of non-medical-related functions under self-determination contracts; and

(c) Procedures for filing claims under FTCA.

$900.181 What definitions apply to this subpart?

Indian contractor means:

(1) In California, subcontractors of the California Rural Indian Health Board. Inc. or, subject to approval of the IHS Director after consultation with the DHHS Office of General Counsel. subcontractors of an Indian tribe or tribal organization which are:

(i) Governed by Indians eligible to receive services from the Indian Health Service:

(ii) Which carry out comprehensive IHS service programs within

32530 Federal Register

geographically defined service areas;

and

(iii) Which are selected and identified through tnbal resolution as the local provider of Indian health care services.

(2) Subject to the approval of the IHS Director after consultation with the DHHS Office of General Counsel. Indian tribes and tribal organizations which meet in ail respects the requirements of the Indian Self-Determination Act to contract directly with the Federal Government but which choose througi tribal resolution to subcontract to carry out IHS service programs within geographically defined service areas with another Indian tribe or tribal organization which contracts directly with IHS.

(3) Any other contractor that qualifies as an "Indian contractor" under the Indian Self-Determination Act.

$900.182 What other statutes and regulations apply to FTCA coverage?

A number of other statutes and regulations apply to FTCA coverage. including the Federal Tort Claims Act (28 U.S.Č. 1346(b), 2401, 2671-2680) and related Department of Justice regulations in 28 CFR part 14.

$900.183 Do Indian tribes and tribal organizations need to be aware of areas which FTCA does not cover?

Yes. There are claims against selfdetermination contractors which are not covered by FTCA, claims which may not be pursued under FTCA, and remedies that are excluded by FTCA. General guidance is provided below as to these matters but is not intended as a definitive description of coverage, which is subject to review by the Department of Justice and the courts on a case-by-case basis.

(a) What claims are expressly barred by FTCA and therefore may not be made against the United States, an Indian tribe or tribal organization? Any claim under 28 U.S.C. 2680, including claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel. slander, misrepresentation, deceit, or interference with contract rights, unless otherwise authorized by 28 U.S.C. 2680(h).

(b) What claims may not be pursued under FTCA?

(1) Except as provided in $900.181(a)(1) and § 900.189, claims against subcontractors arising out of the performance of subcontracts with a selfdetermination contractor,

(2) claims for on-the-job injuries which are covered by workmen's compensation:

(3) claims for breach of contract rather than tort claims; or

(2) other remedies not permitted under applicable state law.

$900.184 is there a deadline for filling, FTCA claims?

Yes. Claims shall be filed within 2 years of the date of accrual. (28 U.S.C. 2401).

$900.185 How long does the Federal government have to process an FTCA claim after the claim is received by the Federal agency, before a lawsuit may be filed? Six months.

$900.186 is it necessary for a selfdetermination contract to include any clauses about Federal Tort Claims Act coverage?

No, it is optional. At the request of Indian tribes and tribal organizations, self-determination contracts shall include the following clauses to clarify the scope of FTCA coverage:

(a) The following clause may be used for all contracts:

For purposes of Federal Tort Claims Act coverage, the contractor and its employees (including individuals performing personal services contracts with the contractor to provide health care services) are deemed to be employees of the Federal government while performing work under this contract. This status is not changed by the source of the funds used by the contractor to pay the employee's salary and benefits unless the employes receives additional compensation for performing covered services from anyone other then the contractor.

(b) The following clause is for IHS contracts only.

Under this contract, the contractor's employee may be required as a condition of employment to provide health services to non-DHS beneficiaries in order to meet contractual obligations. These services may be provided in either contractor or noncontractor facilities. The employee's status for Federal Tort Claims Act purposes is not affected.

$900.187 Doss FTCA apply to a self-
determination contract if FTCA is not
referenced in the contract?
Yes.

$900.188 To what extent shall the contractor cooperate with the Federal government in connection with tort claims arising out of the contractor's performance?

(a) The contractor shall designate an individual to serve as tort claims liaison with the Federal government.

Rules and Regulations

(b) As part of the notification required by 28 U.S.C. 2679(c), the contractor shall notify the Secretary immediately in writing of any tort claim (including any proceeding before an administrative agency or court) filed against the contractor or any of its employees that relates to performance of a self

determination contract or subcontract. (c) The contractor, through its designated tort claims liaison, shail assist the appropriate Federal agency in preparing a comprehensive, accurate, and unbiased report of the incident so that the claim may be properly evaluated. This report should be completed within 60 days of notification of the filing of the tort claim. The report should be complete in every significant detail and include as appropriate:

(1) The date, time and exact place of the accident or incident;

(2) A concise and complete statement of the circumstances of the accident or incident:

(3) The names and addresses of tribal and/or Federal employees involved as participants or witnesses:

(4) The names and addresses of all other eyewitnesses:

(5) An accurate description of all government and other privately-owned property involved and the nature and amount of damage, if any;

(6) A statement as to whether any person involved was cited for violating a Federal, State or tribal law, ordinance, or regulation:

(7) The contractor's determination as to whether any of its employees (including Federal employees assigned to the contractor) involved in the incident giving rise to the tort claim were acting within the scope of their employment in carrying out the contract at the time the incident occurred: (8) Copies of all relevant documentation, including available police reports, statements of witnesses, newspaper accounts, weather reports, plats and photographs of the site or damaged property, such as may be necessary or useful for purposes of claim determination by the Federal agency; and

(9) Insurance coverage information, copies of medical bills, and relevant employment records.

(d) The contractor shall cooperate with and provide assistance to the U.S. Department of Justice attorneys assigned to defend the tort claim, including, but not limited to, case preparation, discovery, and trial.

(e) If requested by the Secretary, the contractor shall make an assignment and subrogation of all the contractor's rights and claims (except those against

$900.203 if the contractor or contractor's employee receives a summons and/or a complaint alleging a tort covered by FTCA, what should the contractor do?

As part of the notification required by 28 U.S.C. 2679(c), the contractor should immediately inform the Chief, Litigation Branch, Business and Administrative Law Division. Office of General Counsel. Department of Health and Human Services, 330 Independence Avenue SW., Room 5362. Washington, DC 20201, and the contractor's tort claims liaison, and forward the following materials:

(a) Four copies of the claimant's medical records of treatment, inpatient and outpatient, and any related correspondence, as well as reports of consultants:

(b) A narrative summary of the care and treatment involved:

(c) The names and addresses of all personnel who were involved in the care and treatment of the claimant;

(d) Any comments or opinions that the employees who treated the claimant believe to be pertinent to the allegations contained in the claim; and

(●) Other materials identified in $900.188(c).

Non-Medical Related Claims

$900.204 is FTCA the exclusive remedy for a non-medical related tort claim arising out of the performance of a selfdetermination contract?

Yes. Except as explained in 5900.183(b), no claim may be filed against a self-determination contractor or employee based upon performance of non-medical-related functions under a self-determination contract. Claims of this type must be filed against the United States under FTCA.

$900.206 To what non-medical-related claims against self-determination contractors does FTCA apply?

It applies to:

(a) All tort claims arising from the performance of self-determination contracts under the authority of the Act on or after October 1, 1989; and

(b) Any tort claims first filed on or after October 24, 1989, regardless of when the incident which is the basis of the claim occurred.

$900.206 What employees are covered by FTCA for non-medical-related claims? (a) Permanent employees: (b) Temporary employees: (c) Persons providing services without compensation in carrying out a contract: (d) Persons required because of their employment by a self-determination contractor to serve non-IHS beneficiaries (even if the services are

provided in facilities not owned by the contractor); and

(e) Federal employees assigned to the contract.

$900.207 How are non-medical related fort claims and lawsuits filed for IHS?

Non-medical-related tort claims and lawsuits arising out of the performance of self-determination contracts with the Indian Health Service should be filed in the manner described in § 900.201 (for both $900.207 and § 900.208).

$900.208 How are non-medical related tort claims and lawsuits flied for DOI? Non-medical-related claims arising out of the performance of selfdetermination contracts with the Secretary of the interior should be filed in the manner described in § 900.201 with the Assistant Solicitor, Procurement and Patents, Office of the Solicitor, Department of the Interior, Room 6511, 1849 C Street NW.. Washington, DC 20240. $900.209 What should a selfdetermination contractor or contractor's employee do on receiving a non-medical related tort claim?

(a) If the contract is with DHHS, they should immediately forward the claim to the PHS Claims Branch at the address indicated in § 900.201 and notify the contractor's tort claims liaison.

(b) If the contract is with DOI, they should immediately notify the Assistant

Solicitor, Procurement and Patents, Office of the Solicitor, Department of the Interior, Room 6511, 1849 C Street

N.W., Washington, DC 20240.

$800.210 If the contractor or contractor's employee receives a summons and/or complaint alleging a non-medical related tort covered by FTCA, what should an Indian tribe or tribal organization do?

(a) If the contract is with the DHHS. they should immediately inform the Chief, Litigation Branch, Business and Administrative Law Division, Office of General Counsel, Department of Health and Human Services, 330 Independence Avenue S.W., Room 5362, Washington, DC 20201 and the contractor's tort claims liaison.

(b) If the contract is with the Department of the Interior, they should immediately notify the Assistant Solicitor, Procurement and Patents, Office of the Solicitor, Department of the Interior, Room 6511, 1849 C Street N.W., Washington, DC 20240, and the contractor's tort claims liaison. Subpert

Hard Contract

to

No. The Federal government attempts salva all contract disputes by agreement at the awardtop afficial's level. These are alternatives to hung claim under the CDA:

(a) Before issuing a dueston on a claim, the awarding official should consider using informal discussions betw parties, assisted by individuals who have not substantially participated in the matter, to aid i resolving differences.

(b) In addition to filing & CDA claim, or instead of ting a CDA claim, the parties may choose to use an alternative spute resolution mechanism, pursuant Lofthe Administrative Dispute Resolution Act, Pool ་་ 101-552. as amended, 5 U.S.C. Set seq.. or the options listed for Section 108(1)0-Mesy of the Indian SelfDetermination Act, as applicable. $800.218 What is a claim un (1)Amebatur 15 & written demand by of the contracting parties, asking for

one or more of the toke

(1) Payment of a specific sum money under the contract: (2) Adjustment of interpretation of