[Federal Register Volume 79, Number 188 (Monday, September 29, 2014)]
[Notices]
[Pages 58359-58363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23005]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Indian Health Service


Final Policy on Conferring With Urban Indian Organizations

AGENCY: Indian Health Service, HHS.

ACTION: Notice.

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SUMMARY: The Indian Health Service (IHS or ``the Agency'') is issuing 
this Notice to implement the final Policy for conferring with Urban 
Indian Organizations (UIOs). In March 2010, the Indian Health Care 
Improvement Act (IHCIA) 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 
IHCIA.

DATES: This Policy will become effective on October 29, 2014.

FOR FURTHER INFORMATION CONTACT: Office of Management Services, 
Management Policy and Internal Control Staff, Indian Health Service, 
801 Thompson Avenue, Suite 625A, Rockville, Maryland 20852. Telephone 
301/443-2650 (This is not a toll free number).

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SUPPLEMENTARY INFORMATION: The IHS published a proposed draft Policy in 
a notice in the Federal Register on July 26, 2012 (77 FR 43846). In 
response to the notice, the Agency received thirty-two comments on the 
draft Policy. All comments were considered and appropriate changes were 
made to the policy. In addition, a Listening Session was held on 
January 22, 2013, following publication of a meeting notice in the 
Federal Register (78 FR 2413).

Inspection of Public Comments

    Comments are available for public inspection at the following 
address: Indian Health Service, Division of Regulatory Affairs, 12300 
Twinbrook Parkway, TMP Suite 430, Rockville MD 20852, Monday through 
Friday of each week from 8:30 a.m. to 4:00 p.m. To schedule an 
appointment to view public comments, phone 1-301-443-1116 (not a toll 
free number).

Summary and Discussion of Comments Received

    The Agency received thirty-two comments on the draft Policy. All 
comments were considered and appropriate changes were made to the 
policy. Fifteen of the comments were in support of the Policy as it was 
written. Numerous comments addressed topics that would require no 
change to the Policy; however, some comments did raise critical issues 
that may require additional conferring activities. It is expected that 
the confer process may result in the need to update this policy from 
time to time.
    Several commenters recommended that UIOs confer with the respective 
Area Offices rather than with Service Units. The Policy identifies a 
conferring role to be available at every level of IHS, including both 
Area Offices and Service Units, if applicable. UIOs are not limited or 
required to confer at any specific level. IHS will conduct special 
trainings and provide technical assistance for the Service Units, if 
necessary.
    One commenter recommended that application of the Federal Advisory 
Committee Act (FACA) be clarified. The policy is updated to clarify the 
applicability of FACA when federal advisory groups are convened for the 
purpose of generating consensus recommendations, and the 
inapplicability of the ``intergovernmental'' exemption. In the event 
questions arise regarding application of FACA, the following was added 
at the end of the FACA section in the Policy: ``For questions regarding 
the applicability of FACA, please contact the Director, IHS Division of 
Regulatory Affairs, Office of Management Services.''
    Several commenters were concerned about the authority in the draft 
Policy for the Director, IHS, and the Director, Office of Urban Indian 
Health Programs, to determine when to confer, and expressed objection 
to the proposal to require conference between the IHS and UIOs upon the 
occurrence of a critical event as determined by IHS, and further 
commented that either party should be able to identify a critical 
event. In response to the comments, IHS removed the subject language 
from the final Policy. Consistent with the IHCIA, the Policy requires 
IHS to confer, to the maximum extent practicable, on any critical event 
or issue, which is defined broadly as ``an event or issue that 
significantly affects one or more UIOs.'' Section 5-26.4(A) provides 
that a critical event or issue may be identified by IHS and/or UIOs. 
Subsection (A)(2) was amended to further clarify that the 
identification of a critical event or issue is intended to be a 
collaborative one.
    Several commenters suggested that the provisions that were 
developed by the ``conferring policy'' workgroup established in 2010 be 
incorporated into the Policy. While, IHS is not required to adopt any 
recommendations of a workgroup or committee, it was determined that the 
``conferring policy'' workgroup was convened in a manner that may not 
have complied with the requirements of the FACA. Therefore, although 
IHS considered the workgroup's discussion and recommendation to the 
same extent it considered all other recommendations received on this 
issue, federal staff developed a draft policy based on the statute and 
all comments received to that point, and published the draft in the 
Federal Register for comment. Many of the points raised in the 
discussion of the workgroup actually are consistent with the draft 
policy and were raised and responded to in the comments that were 
subsequently received. Some issues raised by the workgroup, but not 
included in the final policy, may require further conferring with UIOs.
    One commenter expressed concern regarding violation of trust 
responsibility. The IHCIA defines ``confer'' to mean ``to engage in an 
open and free exchange of information and opinions that--(1) leads to 
mutual understanding and comprehension; and (2) emphasizes trust, 
respect, and shared responsibility.'' 25 U.S.C. Sec.  1660d(a). IHS 
believes this will be accomplished through the various confer 
mechanisms that will be conducted in response to a critical event or 
issue.
    A few commenters suggested that it was the intent of the IHCIA that 
the IHS confers only with UIOs funded by the IHS under the IHCIA. 
Similarly, another commenter suggested the definition of a UIO be 
inclusive to ensure adequate input and participation from the nonprofit 
organizations providing services to Tribal members living away from the 
reservation. The Policy is inclusive of all UIOs that meet the IHCIA 
definition of UIO, 25 U.S.C. 1603(29), which is not limited, per the 
statute, to organizations that are receiving funding from the IHS under 
the IHCIA. In practice, UIOs funded by the IHS under the IHCIA will 
have opportunities to raise issues specific to their relationship with 
IHS during the confer process and can also continue to approach IHS 
directly regarding such specific concerns, without relying on the 
conferring process set out in this policy.
    Two commenters urged the IHS to consider coordination with the IHS 
Tribal Consultation Policy and Executive Order 13175. The commenters 
suggested that UIO matters could have Tribal implications that may 
trigger consultation and, therefore, Tribal governments should be 
included as a required party in the confer process with UIOs. The 
Policy published in this Federal Register notice addresses IHS's 
responsibility to confer with UIOs under the IHCIA. The IHS Urban 
Confer Policy does not change the Tribal Consultation Policy. IHS will 
continue to follow the Tribal Consultation Policy for consulting Indian 
Tribes on matters that will significantly affect Tribes. For issues of 
interest to both Tribes and UIOs, both policies will apply.

Final Policy, With Revisions Incorporated in Response to Above Comments

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 United States Code (U.S.C.) Sec.  
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 Policy establishes the Indian Health Service (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

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Indian population are considered at the local, Area, and national 
levels, when implementing and carrying out the Indian Health Care 
Improvement Act (IHCIA or Act).
    B. Background. Urban Indian organizations are a major provider of 
health care to urban AI/ANs 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 American Indians and Alaska 
Natives (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, Public Law No. (Pub. L. No.) 94-437, 90 Statute 
(Stat.) 1400, 1410 (1976), codified at 25 U.S.C. Sec.  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 Policy, arises in implementing or carrying out the IHCIA.
    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. Sec.  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. Sec.  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. Sec.  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. Sec.  
1665k(a)(2)(A)(vii). ``Funding provided pursuant to [25 U.S.C. Sec.  
1665k ``fetal alcohol spectrum disorders programs''] shall be used . . 
. [t]o develop and implement . . . in conference with urban Indian 
organizations, culturally sensitive assessment and diagnostic tools 
including dysmorphology clinics and multidisciplinary fetal alcohol 
spectrum disorders clinics for use in Indian communities and urban 
centers.''
    E. Authorities.
    (1) Indian Health Care Improvement Act, 25 U.S.C. Sec. Sec.  1601-
1683, as amended, including, Sec. Sec.  1602(1), 1603(29), 1651, 
1653(a), 1660d.
    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. 25 U.S.C. 
Sec.  1660d(a).
    (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.
    (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 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.
    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 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 identifying critical events or issues arising in implementing or 
carrying out the IHCIA. Such correspondence should identify the 
critical events or issue, the affected UIO(s), and the proposed 
conferring activity. After receiving such correspondence, or upon 
identification of a critical event or issue by IHS, all affected UIOs 
will be notified through a ``Dear Urban Indian Organization Letter'' 
and broadcast emails, and, if necessary, through the Federal Register, 
when IHS will undertake conferring activity. The notice will identify 
the issue, the method for conferring, and the

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timeline for the conferring activity. The Director, OUIHP, is 
responsible for preparing the annual IHS Confer with Urban Indian 
Organizations 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 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 official 
conferring sessions through meetings or conferring actions 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, if applicable. The CEO shall 
provide the Service Unit conferring activities and results or outcomes 
reports 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, IHS, (with a 
copy to the appropriate Area Director) describing the event or issue, 
the affected UIO(s), and the proposed conferring activity. The IHS 
shall acknowledge receipt of the request within 60 business days.
    (2) Within 60 business days of acknowledging the request, IHS shall 
provide an official response to all affected/potentially affected 
UIO(s), identifying the conferring activity that has been selected and 
the timeline for the activity. In addition, if IHS itself 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 
Organization Letter'' and broadcast emails, as well as through a FRN, 
if necessary. The communication will identify the critical events or 
issues to be discussed, as well as the mechanism for conferring.
    B. Conferring Activity. The IHS will conduct official conferring 
activities that shall be publicized, both through correspondence such 
as a ``Dear Urban Indian Organization Letter'' and broadcast emails, 
and, if necessary, through a FRN. The notices will include information 
such as the mechanism, dates, and locations of the conferring activity, 
the agenda, and any critical events or issues that will be discussed. 
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/Webinars
    (3) Regular or special program level conferring sessions
    (4) Conferences or meetings, such as the annual 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).
    (7) Federal Register Notices with request for comment.
    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. The IHS shall prepare 
and submit the annual IHS Confer with UIOs Report to the Secretary, 
HHS, 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.
    The report shall include a description of each 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 activity, 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), 5 U.S.C. App. Sec.  1-
16, 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 consensus 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 capacities, UIOs do not meet the requirements 
of the ``inter-governmental'' exemption. Accordingly, any conferring 
activities that qualify as an advisory committee under the FACA that is 
convened for the purpose of developing consensus recommendations will 
be required to comply with the procedures set out in FACA. For 
questions regarding the applicability of FACA, please contact the 
Director, IHS Division of Regulatory Affairs, Office of Management 
Services.
5-26.6 Summary
    This policy considers a wide range of needs and unique 
characteristics in crafting these guidelines; therefore, it is 
important for the IHS urban confer

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policy to remain dynamic and be responsive to changing circumstances 
that affect UIOs. It is expected that the confer process may result in 
the need to update the policy from time to time.
5-26.7 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: September 22, 2014.
Yvette Roubideaux,
Acting Director, Indian Health Service.
[FR Doc. 2014-23005 Filed 9-26-14; 8:45 am]
BILLING CODE 4160-16-P