[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Notices]
[Pages 43846-43849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18300]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Indian Health Service


Draft Policy on Conferring With Urban Indian Organizations

AGENCY: Indian Health Service, Department of Health and Human Services.

ACTION: Notice, with a 45-day comment period.

-----------------------------------------------------------------------

SUMMARY: This Notice sets forth the Indian Health Service policy for 
conferring with urban Indian organizations and invites comments within 
45 days. In March 2010, the Indian Health Care Improvement Act was 
reauthorized and amended as part of the Patient Protection and 
Affordable Care Act, Public Law 111-148, as amended by the Health Care 
and Education Reconciliation Act (together, the Affordable Care Act), 
Public Law 111-152. One of the changes made to the IHCIA was to create 
a new requirement that the IHS ``confer'' with UIOs, to the maximum 
extent practicable, in carrying out the Act as defined by the Indian 
Health Care Improvement Reauthorization and Extension Act, as enacted 
and amended by the Affordable Care Act.

DATES: We will consider all comments received by September 10, 2012.

ADDRESSES: Submit comments by email to [email protected]; or by US 
mail to: Ms. Betty Gould, Regulations Officer, Indian Health Service, 
801 Thompson Avenue, TMP Suite 450, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Ms. Phyllis Wolfe, Director, Office of 
Urban Indian Health Programs, Indian Health Service, 801 Thompson 
Avenue, Suite 200, Rockville, Maryland 20852. Telephone 301/443-4680 
(This is not a toll free number).

Policy on Conferring With Urban Indian Organizations

5-26.1 Introduction

    A. Purpose. Congress has specifically declared that it is the 
policy of the Nation ``to ensure the highest possible health status for 
Indians and urban Indians.'' 25 U.S.C. 1602(1). The U. S. Department of 
Health and Human Services (HHS) is committed to working with Indian and 
urban Indian communities to meet this policy. This policy applies to 
the Indian Health Service (IHS).
    This Notice establishes the IHS policy and procedures for 
conferring with urban Indian organizations (UIOs). The IHS will use 
this conferring policy to ensure that the health care needs of the 
urban Indian population are considered at the local, Area, and national 
levels, when implementing and carrying out the Indian Health Care 
Improvement Act (IHCIA).
    B. Background. Urban Indian organizations are a major provider of 
health care to urban American Indians and Alaska Natives (AI/AN) across 
the country. When the IHCIA was enacted into law in 1976, it identified 
the authorities, responsibilities, and functions of the IHS, the 
primary Federal Agency charged with providing health care to AI/AN. The 
IHCIA included the authority for the IHS to ``establish programs in 
urban centers to make health services more accessible to urban 
Indians'' [Indian Health Care Improvement Act, Title V, section 501, 
Pub. L. 94-437, 90 Statute (Stat.) 1400, 1410 (1976), codified at 25 
United States Code (U.S.C.) 1651]. The IHS carries out this authority 
through contracts with and grants to UIOs. In March 2010, as part of 
the Affordable Care Act, Congress reauthorized and amended the IHCIA. 
The reauthorization of the IHCIA included a requirement that the IHS 
``confer,'' to the maximum extent practicable, with UIOs in carrying 
out the IHCIA.
    C. Policy. It is IHS policy to confer with UIOs, to the maximum 
extent practicable, whenever a ``critical event or issue,'' as defined 
in this Notice, arises in implementing or carrying out the IHCIA.

[[Page 43847]]

    D. Requirement. The IHCIA, as amended, includes four provisions 
that require the IHS to confer with UIOs.
    (1) Indian Health Care Improvement Act, 25 U.S.C. 1660d(b). ``The 
Secretary shall ensure that the Service confers, to the maximum extent 
practicable, with urban Indian organizations in carrying out this 
[Act].''
    (2) Indian Health Care Improvement Act, 25 U.S.C. 1602(5). 
``Congress declares * * * that all actions under this [Act] shall be 
carried out with * * * conference with urban Indian organizations, to 
implement this [Act]. * * *''
    (3) Indian Health Care Improvement Act, 25 U.S.C. 1631(f). ``The 
Secretary shall * * * confer with urban Indian organizations, in 
developing innovative approaches to address all or part of the total 
unmet need for construction of health facilities. * * *''
    (4) Indian Health Care Improvement Act, 25 U.S.C. 
1665k(a)(2)(A)(vii). ``Funding provided pursuant to [25 U.S.C. 1665k 
``fetal alcohol spectrum disorders programs''] shall be used * * * to 
develop and implement * * * in conferring with urban Indian 
organizations, culturally sensitive assessment and diagnostic tools 
including * * * multidisciplinary fetal alcohol spectrum disorder 
clinics for use in Indian communities and urban centers.''
    E. Authorities.
    (1) Indian Health Care Improvement Reauthorization and Extension 
Act, as enacted and amended by the Patient Protection and Affordable 
Care Act, Public Law 111-148, Sec.  10221, 124 Stat. 119, 935 (2010).
    (2) Indian Health Care Improvement Act, 25 U.S.C. 1601-1683, as 
amended, including, Sec. Sec.  1602(1), 1603(29), 1651, 1653(a).
    (3) Office of Management and Budget Circular A-19.
    F. Definitions.
    (1) Confer. The term ``confer'' means to engage in an open and free 
exchange of information and opinions that:
    a. leads to mutual understanding and comprehension, and
    b. emphasizes trust, respect, and shared responsibility.
    (2) Conferring Activities. The term ``conferring activities'' means 
implementing confer mechanisms, such as face-to-face meetings, 
teleconferences, and mailings, to solicit comments and discuss critical 
events or issues.
    (3) Critical Event or Issue. A ``critical event or issue,'' as used 
in this policy, is an event or issue that significantly affects one or 
more UIOs. Critical events or issues are complex, have significant 
implications, and are time sensitive. Examples of critical events or 
issues include developing program regulations, formulating the budget, 
allocating new resources, and changing policy, as well as public health 
or environmental events. When necessary, it is within the discretion of 
the Director, IHS, to make the final determination as to whether or not 
a specific event or issue qualifies as a ``critical event or issue,'' 
as defined in this policy.
    (4) IHS Confer with UIOs Report. The term ``IHS Confer with UIOs 
Report'' means an annual report to the Secretary, HHS, describing 
``critical events or issues'' to UIOs arising in implementing or 
carrying out the IHCIA.
    (5) Urban Indian Organization. The term ``urban Indian 
organization'' means a nonprofit corporate body situated in an urban 
center, governed by an urban Indian controlled board of directors, and 
providing for the maximum participation of all interested Indian groups 
and individuals, which body is capable of legally cooperating with 
other public and private entities for the purpose of performing the 
activities described in [25 U.S.C. 1653(a)]. 25 U.S.C. 1603(29).

5-26.2 Objectives

    A. To formalize the IHS approach to conferring with UIOs to ensure 
that urban Indian health priorities and goals are considered.
    B. To establish a minimum set of requirements and expectations with 
respect to conferring for the three levels of IHS management: 
Headquarters, Area Offices, and Service Units.
    C. To identify ``critical events or issues'' arising in 
implementing or carrying out the IHCIA for which conferring with UIOs 
will be required for the three levels of IHS management: Headquarters, 
Area Offices, and Service Units.
    D. To identify ``critical events or issues'' arising in 
implementing or carrying out the IHCIA where partnerships and the 
inclusion of UIOs would complement consultation with Indian Tribes.
    E. To require conferring with UIOs on proposed, new, and existing 
health policies and programs that qualify as ``critical events or 
issues'' arising in implementing or carrying out the IHCIA.
    F. To promote and develop innovative methods of involving UIOs in 
IHS policy development and in the decision-making processes of the IHS.
    G. To coordinate with the HHS Divisions or Regional Offices; State 
Agencies; to assist UIOs in communicating their priorities.
    H. To charge and hold responsible all levels of management within 
the IHS for the implementation of this policy.

5-26.3 Roles

    A. Headquarters. The Director, IHS, is responsible for providing 
overall guidance and direction to the Office of Urban Indian Health 
Programs (OUIHP) and ensuring that the IHS confers, to the maximum 
extent practicable, with UIOs in accordance with this policy.
    The IHS has the responsibility to engage in an open and free 
exchange of information and opinions with UIOs that leads to mutual 
understanding and comprehension; and emphasizes trust, respect, and 
shared responsibility whenever a ``critical event or issue,'' as 
defined in this policy, arises in implementing or carrying out the 
IHCIA. When necessary, it is within the discretion of the Director, 
IHS, to make the final determination as to whether or not a specific 
event or issue qualifies as a ``critical event or issue,'' as defined 
in this policy.
    The Director, OUIHP, is responsible for monitoring compliance with 
this policy, including submissions to the OUIHP conferring email 
address: [email protected]. The Director, OUIHP, will ensure that all 
levels of the IHS conduct regular official conferring sessions that are 
publicized through correspondence or, when necessary, Federal Register 
Notices (FRN), and receive conferring reports. The Director, OUIHP, 
will also receive and acknowledge receipt of written correspondence 
from UIOs describing potential ``critical events or issues'' arising in 
implementing or carrying out the IHCIA, the affected UIO(s), and the 
proposed conferring activity. Where applicable, OUIHP will notify all 
affected UIOs through a ``Dear Urban Indian Health Organization 
Director Letter'' and broadcast emails, and, if necessary, through the 
Federal Register, if the IHS will undertake any conferring activity. 
The notice will identify the issue, the method for conferring, and the 
timeline for the conferring activity. The Director, OUIHP, is 
responsible for preparing and submitting the annual IHS Confer with 
UIOs Report.
    All IHS Headquarters Office Directors will provide leadership to 
identify potential ``critical events or issues'' arising in 
implementing or carrying out the IHCIA for which conferring with UIOs 
will be recommended to the Director, OUIHP, and assist the OUIHP in 
completion of the annual IHS Confer with UIOs Report, when necessary.
    B. Area Offices. The Area Director is responsible for regional 
administration, management, evaluation, contract and

[[Page 43848]]

grant monitoring, and funding responsibilities for the IHCIA Title V-
funded UIOs located in their Areas. The Area Director will provide the 
support and assistance to ensure that IHS confers, in accordance with 
this policy, with UIOs at the Area level. The Area Director will 
conduct regular official conferring sessions through bi-annual meetings 
and other conferring activities with UIOs. The Area Director will 
ensure that the Director, OUIHP, is informed of the Area conferring 
activities and outcomes for inclusion in the Annual IHS Confer with 
UIOs Report.
    C. Service Units. The Service Unit Chief Executive Officer (CEO) is 
responsible for ensuring compliance with this policy by conferring with 
UIOs that are located in the Service Unit. The CEO shall provide the 
Service Unit conferring activities and results or outcomes through the 
Area Urban Coordinator, to the Area Director, who will report them to 
the OUIHP.

5-26.4 Confer Management

    A. Identification of Conferring Activities. A potential ``critical 
event or issue'' arising in implementing or carrying out the IHCIA may 
be identified by either the IHS and/or UIOs.
    (1) If a potential ``critical event or issue'' is identified by a 
UIO, written correspondence must be submitted to the Director, OUIHP, 
(with a copy to the appropriate Area Director) describing the event or 
issue, the affected UIO(s), and the proposed conferring activity. The 
Director, OUIHP, shall acknowledge receipt of the request within 15 
business days. IHS will consider whether or not to confer with 
affected/potentially affected UIOs in response to this request.
    (2) The Director, OUIHP, shall determine whether or not a specific 
event or issue arising in implementing or carrying out the IHCIA 
qualifies as a ``critical event or issue,'' as defined in this policy. 
The Director, OUIHP, shall provide an official response indicating the 
reason(s) why conferring will or will not be conducted. If the 
Director, OUIHP, determines that a ``critical event or issue'' has 
arisen in implementing or carrying out the IHCIA, the Director, OUIHP, 
shall, in the official response, identify the conferring activity that 
has been selected and the timeline for the activity. In addition, if 
the Director, OUIHP, determines that a ``critical event or issue'' has 
arisen in implementing or carrying out the IHCIA, the IHS will issue 
notices to all affected/potentially affected UIOs through 
correspondence such as a ``Dear Urban Indian Health Organization 
Director Letter'' and broadcast emails, as well as through a FRN, if 
applicable. Communication will identify the ``critical events or 
issues'' to be discussed, as well as the mechanism for conferring. When 
necessary, it is within the discretion of the Director, IHS, to make 
the final determination as to whether or not a specific event or issue 
qualifies as a ``critical event or issue,'' as defined in this policy.
    B. Conferring Activity. The IHS will conduct regular, official 
conferring sessions through bi-annual meetings. The bi-annual meetings 
shall be publicized, both through correspondence such as a ``Dear Urban 
Indian Health Program Director Letter'' and broadcast emails, and, if 
necessary, through a FRN. The notices will include information such as 
the dates and locations of the conferring sessions, the agenda, and any 
``critical events or issues'' that will be discussed. In addition to 
the bi-annual meetings, other conferring activities may occur 
throughout the year. In the event that a confer activity will be 
conducted, the degree and extent of the conferring and the mechanism 
for conferring shall depend upon several factors, including:
    (1) the nature of the ``critical event or issue,''
    (2) the number of potentially affected UIOs, and
    (3) the most cost effective and efficient conferring mechanism, 
based on the nature of the ``critical event or issue'' and the number 
of potentially affected UIOs.
    C. Confer Mechanisms. The IHS will consider the following confer 
mechanisms as options that provide the opportunity for an open and free 
exchange of information and opinions that lead to mutual understanding 
and comprehension and emphasize trust, respect, and shared 
responsibility:
    (1) Mailings
    (2) Teleconferences
    (3) Regular or special program level conferring sessions
    (4) Annual meetings, such as the annual Spring Urban Indian Health 
Leadership Conference
    (5) Opportunities for comment, including submissions to 
[email protected]
    (6) Face-to-face meetings, including meetings conducted at the Area 
Office level or at the national-level Indian health system meetings 
that include the IHS, Tribes, and UIO(s).
    D. Contract- and Grant-Specific Issues. A UIO may request to meet 
one-on-one with an IHS representative to confer on issues specific to 
that UIO and its contract and grant awards from the IHS.
    E. Unresolved Issues. Upon the completion of any of the conferring 
activities in this section, the IHS will document and follow-up on any 
unresolved issue(s) that would benefit from the ongoing involvement of 
the affected UIO(s). Documentation of the conferring process and 
outcomes will be maintained by the OUIHP and the Area Office(s) in 
which the affected UIO(s) are located.
    F. Annual IHS Confer with UIOs Report to HHS. As part of the annual 
IHS Confer with UIOs Report to the Secretary, HHS, the IHS shall 
prepare and submit an annual report describing ``critical events or 
issues'' arising in implementing or carrying out the IHCIA, related 
conferring activities, and the results and outcomes of conferring with 
UIOs.
    (1) The report shall address: Development of the urban Indian 
health program budget; development and implementation of urban Indian 
health program regulations and policies; and public health or 
environmental health critical events impacting UIOs.
    (2) The report shall include a description of the ``critical event 
or issue(s)'' that was the subject of conferring, a description of the 
process that was used, a discussion of the recommendations that 
resulted from the conferring meeting(s), a list of any follow-up action 
items, a timeline for addressing these items, and a discussion of the 
level of satisfaction with the conferring process.
    G. Conflict Resolution.
    (1) The intent of this policy is to promote mutual understanding 
and comprehension, and to emphasize trust, respect, and shared 
responsibility between the IHS and UIOs.
    (2) However, the IHS and UIOs may not always agree. Where such 
disagreement occurs, nothing in this policy creates a right of action 
against the IHS or the HHS for failure to comply with this policy.

5-26.5 Federal Advisory Committee Act

    The Federal Advisory Committee Act (FACA) may apply to conferring 
activities. The FACA is implicated when an Agency establishes, manages, 
or controls a group that includes one or more participants who are not 
Federal employees for the purpose of obtaining the group's advice or 
recommendations on Agency issues or policies. The FACA imposes several 
procedural requirements on Federal Agencies that convene advisory 
committees. Although FACA may not apply to groups consisting solely of 
Tribal leaders serving on the group in their official

[[Page 43849]]

capacities, UIOs do not meet the requirements of the ``Tribal leader'' 
exemption. Accordingly, any conferring activities that qualify as an 
advisory committee under the FACA will be required to comply with the 
procedures set out in FACA.

5-26.6 Deliberative Process Privilege

    Nothing in this policy waives the Government's deliberative process 
privilege. Examples of the government's deliberative process privilege 
are as follows:
    (1) When the Secretary, HHS, is specifically requested by a member 
or members of Congress to respond to or report on proposed legislation, 
the development of such responses and of related policy is a part of 
the Executive Branch's deliberative process privilege and should remain 
confidential.
    (2) In specified instances, when Congress requires the HHS to work 
with UIOs on the development of recommendations that may require 
legislation, such as reports, recommendations, or other products that 
are developed independent of a Department position, the development of 
which is governed by Office of Management and Budget Circular A-19.

    Dated: July 20, 2012.
Yvette Roubideaux,
Director, Indian Health Service.
[FR Doc. 2012-18300 Filed 7-25-12; 8:45 am]
BILLING CODE 4165-16-P