|
U.S. Code as of:
01/19/04
Section 458aaa-6. Provisions relating to the Secretary
(a) Mandatory provisions
(1) Health status reports
Compacts or funding agreements negotiated between the Secretary
and an Indian tribe shall include a provision that requires the
Indian tribe to report on health status and service delivery -
(A) to the extent such data is not otherwise available to the
Secretary and specific funds for this purpose are provided by
the Secretary under the funding agreement; and
(B) if such reporting shall impose minimal burdens on the
participating Indian tribe and such requirements are
promulgated under section 458aaa-16 of this title.
(2) Reassumption
(A) In general
Compacts or funding agreements negotiated between the
Secretary and an Indian tribe shall include a provision
authorizing the Secretary to reassume operation of a program,
service, function, or activity (or portions thereof) and
associated funding if there is a specific finding relative to
that program, service, function, or activity (or portion
thereof) of -
(i) imminent endangerment of the public health caused by an
act or omission of the Indian tribe, and the imminent
endangerment arises out of a failure to carry out the compact
or funding agreement; or
(ii) gross mismanagement with respect to funds transferred
to a tribe by a compact or funding agreement, as determined
by the Secretary in consultation with the Inspector General,
as appropriate.
(B) Prohibition
The Secretary shall not reassume operation of a program,
service, function, or activity (or portions thereof) unless -
(i) the Secretary has first provided written notice and a
hearing on the record to the Indian tribe; and
(ii) the Indian tribe has not taken corrective action to
remedy the imminent endangerment to public health or gross
mismanagement.
(C) Exception
(i) In general
Notwithstanding subparagraph (B), the Secretary may, upon
written notification to the Indian tribe, immediately
reassume operation of a program, service, function, or
activity (or portion thereof) if -
(I) the Secretary makes a finding of imminent substantial
and irreparable endangerment of the public health caused by
an act or omission of the Indian tribe; and
(II) the endangerment arises out of a failure to carry
out the compact or funding agreement.
(ii) Reassumption
If the Secretary reassumes operation of a program, service,
function, or activity (or portion thereof) under this
subparagraph, the Secretary shall provide the Indian tribe
with a hearing on the record not later than 10 days after
such reassumption.
(D) Hearings
In any hearing or appeal involving a decision to reassume
operation of a program, service, function, or activity (or
portion thereof), the Secretary shall have the burden of proof
of demonstrating by clear and convincing evidence the validity
of the grounds for the reassumption.
(b) Final offer
In the event the Secretary and a participating Indian tribe are
unable to agree, in whole or in part, on the terms of a compact or
funding agreement (including funding levels), the Indian tribe may
submit a final offer to the Secretary. Not more than 45 days after
such submission, or within a longer time agreed upon by the Indian
tribe, the Secretary shall review and make a determination with
respect to such offer. In the absence of a timely rejection of the
offer, in whole or in part, made in compliance with subsection (c)
of this section, the offer shall be deemed agreed to by the
Secretary.
(c) Rejection of final offers
(1) In general
If the Secretary rejects an offer made under subsection (b) of
this section (or one or more provisions or funding levels in such
offer), the Secretary shall provide -
(A) a timely written notification to the Indian tribe that
contains a specific finding that clearly demonstrates, or that
is supported by a controlling legal authority, that -
(i) the amount of funds proposed in the final offer exceeds
the applicable funding level to which the Indian tribe is
entitled under this part;
(ii) the program, function, service, or activity (or
portion thereof) that is the subject of the final offer is an
inherent Federal function that cannot legally be delegated to
an Indian tribe;
(iii) the Indian tribe cannot carry out the program,
function, service, or activity (or portion thereof) in a
manner that would not result in significant danger or risk to
the public health; or
(iv) the Indian tribe is not eligible to participate in
self-governance under section 458aaa-2 of this title;
(B) technical assistance to overcome the objections stated in
the notification required by subparagraph (A);
(C) the Indian tribe with a hearing on the record with the
right to engage in full discovery relevant to any issue raised
in the matter and the opportunity for appeal on the objections
raised, except that the Indian tribe may, in lieu of filing
such appeal, directly proceed to initiate an action in a
Federal district court pursuant to section 450m-1(a) of this
title; and
(D) the Indian tribe with the option of entering into the
severable portions of a final proposed compact or funding
agreement, or provision thereof, (including a lesser funding
amount, if any), that the Secretary did not reject, subject to
any additional alterations necessary to conform the compact or
funding agreement to the severed provisions.
(2) Effect of exercising certain option
If an Indian tribe exercises the option specified in paragraph
(1)(D), that Indian tribe shall retain the right to appeal the
Secretary's rejection under this section, and subparagraphs (A),
(B), and (C) of that paragraph shall only apply to that portion
of the proposed final compact, funding agreement, or provision
thereof that was rejected by the Secretary.
(d) Burden of proof
With respect to any hearing or appeal or civil action conducted
pursuant to this section, the Secretary shall have the burden of
demonstrating by clear and convincing evidence the validity of the
grounds for rejecting the offer (or a provision thereof) made under
subsection (b) of this section.
(e) Good faith
In the negotiation of compacts and funding agreements the
Secretary shall at all times negotiate in good faith to maximize
implementation of the self-governance policy. The Secretary shall
carry out this part in a manner that maximizes the policy of tribal
self-governance, in a manner consistent with the purposes specified
in section 3 of the Tribal Self-Governance Amendments of 2000.
(f) Savings
To the extent that programs, functions, services, or activities
(or portions thereof) carried out by Indian tribes under this part
reduce the administrative or other responsibilities of the
Secretary with respect to the operation of Indian programs and
result in savings that have not otherwise been included in the
amount of tribal shares and other funds determined under section
458aaa-7(c) of this title, the Secretary shall make such savings
available to the Indian tribes, inter-tribal consortia, or tribal
organizations for the provision of additional services to program
beneficiaries in a manner equitable to directly served, contracted,
and compacted programs.
(g) Trust responsibility
The Secretary is prohibited from waiving, modifying, or
diminishing in any way the trust responsibility of the United
States with respect to Indian tribes and individual Indians that
exists under treaties, Executive orders, other laws, or court
decisions.
(h) Decisionmaker
A decision that constitutes final agency action and relates to an
appeal within the Department of Health and Human Services conducted
under subsection (c) of this section shall be made either -
(1) by an official of the Department who holds a position at a
higher organizational level within the Department than the level
of the departmental agency in which the decision that is the
subject of the appeal was made; or
(2) by an administrative judge.
|
|