[House Report 106-837]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-837
======================================================================
TRIBAL CONTRACT SUPPORT COST TECHNICAL AMENDMENTS OF 2000
_______
September 12, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
[To accompany H.R. 4148]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 4148) to make technical amendments to the provisions of
the Indian Self-Determination and Education Assistance Act
relating to contract support costs, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tribal Contract Support Cost Technical
Amendments of 2000''.
SEC. 2. AMENDMENT DETAILING CALCULATION AND PAYMENT OF CONTRACT SUPPORT
COSTS.
The Indian Self-Determination and Education Assistance Act is amended
by adding after section 106 the following new section:
``SEC. 106A. CONTRACT SUPPORT COSTS.
``(a) Other Federal Agencies.--Except as otherwise provided by
statute, an Indian tribe or tribal organization administering a
contract or compact under this Act shall be entitled to recover its
full indirect costs associated with any other Federal funding received
by such tribe or tribal organization (other than funds paid under this
Act), consistent with the tribe's or tribal organization's indirect
cost rate agreement with its cognizant Federal agency. This subsection
shall not independently entitle such tribe or tribal organization to be
paid additional amounts associated with such other Federal funding.
``(b) Allowable Uses of Funds.--Notwithstanding any other provision
of law (including regulation or circular), an Indian tribe or tribal
organization (1) administering a contract or compact under this Act and
(2) employing an indirect cost pool that includes both funds paid under
this Act and other Federal funds, shall be entitled to use or expend
all Federal funds in such tribe's or tribal organization's indirect
cost pool in the same manner as permitted in section 106(j) (relating
to allowable uses of funds without approval of the Secretary), and for
such purposes only the term `Secretary' means the Secretary of any
Federal agency providing funds to such tribe or tribal organization.
``(c) Consolidated Contract Amount.--
``(1) Conditions for consolidation.--Commencing in fiscal
year 2003, the Secretary shall consolidate all funds paid to a
tribe or tribal organization pursuant to paragraphs (1) and (2)
of section 106(a) into a single consolidated contract or
compact amount if the following conditions have been met:
``(A) The tribe or tribal organization qualifies to
carry out a mature contract under this title or is
operating a self-governance agreement under any other
title of this Act.
``(B) The tribe's or tribal organization's indirect
cost rate has not varied more than 10 percent over the
prior year's rate for the preceding 3 years (for tribes
or tribal organizations that have no indirect rate,
this criterion shall be satisfied if the ratio of the
tribe's or tribal organization's contract support
requirement to its direct cost base has not varied more
than 10 percent over the ratio for the preceding 3
years).
``(C) At the time of the consolidation the tribe or
tribal organization is receiving its full contract
support cost requirement as determined under section
106(a)(2).
``(2) Medical inflation rate adjustments.--Each year
following the consolidation required by paragraph (1), the
Secretary of Health and Human Services shall increase the
amount of contract support costs paid as part of the
consolidated amount by an amount equal to--
``(A) the adjustment in the medical care component of
the national consumer price index over the preceding
year, multiplied by
``(B) the contract support cost amount paid in the
preceding year as part of the consolidated amount.
``(3) Consumer price index adjustments.--Each year following
the consolidation required by paragraph (1), the Secretary of
the Interior shall increase the amount of contract support
costs paid as part of the consolidated amount by an amount
equal to--
``(A) the adjustment in the national consumer price
index over the preceding year, multiplied by
``(B) the contract support cost amount paid in the
preceding year as part of the consolidated amount.
``(4) Employment adjustments.--A tribe or tribal organization
shall be entitled to receive additional contract support costs
associated with the transfer of employees from Federal
employment to tribal employment. Such additional contract
support costs shall be added to the consolidated amount
determined and adjusted under paragraphs (1), (2), and (3), and
shall thereafter become a part of the consolidated amount.
``(5) Additional contract support costs.--Notwithstanding any
other provision of this Act, and except as provided in
paragraphs (4) and (8), the tribe or tribal organization shall
not be entitled to receive any contract support costs
additional to those contained within the consolidated amount
determined and adjusted under paragraphs (1), (2), and (3).
``(6) Rebudgeting authority unaffected.--The tribe or tribal
organization may rebudget all contract or compact funds as
specified in section 106(n).
``(7) Deconsolidation.--Except as provided in paragraph (8),
in the event--
``(A) the amount of program funds paid under section
106(a)(1) as part of the consolidated amount, when
combined with other program funds paid to the tribe or
tribal organization from other funding sources,
increases or decreases by more than--
``(i) 20 percent over the amount paid in the
preceding year; or
``(ii) 40 percent over the amount paid in the
preceding three years; or
``(B) the Secretary for good cause shown agrees,
the amounts paid by the Secretary under this section shall be
deconsolidated, and such amounts shall be recalculated and paid
as specified elsewhere in this Act. Upon such recalculation,
the recalculated amounts shall be reconsolidated into a single
amount as otherwise described in this subsection.
``(8) Contracting additional programs.--Nothing in this
subsection shall affect the right of a tribe or tribal
organization to contract or compact for the operation of new or
expanded programs, services, functions, or activities not
included in the consolidated amount paid under paragraph (1),
or to be paid the full amount of contract support costs
associated with such additional contracted or compacted
programs, as provided in section 106(a)(1) and other provisions
of this Act. Any such additional programs and associated
contract support costs shall be added to the consolidated
amount determined and adjusted under paragraphs (1), (2), and
(3).
``(9) Separate contracts and compacts.--Nothing in this
subsection shall require a tribe or tribal organization to
consolidate separate contracts or compacts administered under
this Act into a single contract or compact.
``(d) Negotiation of Contract Support Cost Amounts.--Within the
Indian Health Service of the Department of Health and Human Services,
the negotiation, review, and approval of tribal contract support cost
entitlements shall be the responsibility of the Office of Tribal
Programs, subject to the tribe's or tribal organization's indirect cost
rate agreement with the tribe's or tribal organization's cognizant
Federal agency.
``(e) Direct Contract Support Costs and Federal Employees.--The
contract support costs that are eligible costs for the purposes of
receiving funding under this Act shall include direct contract support
costs associated with all Federal employees employed in connection with
the program, service, function, or activity that is the subject of the
contract, including all Federal employees paid with funds generated
from third-party collections.
``(f) Regulations.--The Secretary of the Interior and the Secretary
of Health and Human Services are authorized to promulgate joint
regulations relating to the allowability of costs expended under this
Act, including all pooled indirect costs and direct contract support
costs. In promulgating such regulations the Secretaries shall follow
the procedures set forth in sections 107(a)(2)(A), 107(d)(1),
107(d)(2)(A), 107(d)(2)(B), 107(d)(2)(D), and 107(d)(2)(E), and shall
publish proposed regulations in the Federal Register to carry out this
subsection not later than 180 days after the date of enactment of the
Tribal Contract Support Cost Technical Amendments of 2000. The
authority to promulgate regulations under this subsection shall expire
if final regulations are not promulgated within 18 months after the
date of enactment of the Tribal Contract Support Cost Technical
Amendments of 2000. In the event of a conflict between such regulations
and any Office of Management and Budget circular, the provision of such
regulations shall control. The Secretary may, with respect to a
contract or compact entered into under this Act, make exceptions in the
regulations promulgated to carry out this subsection, or waive such
regulations, if the Secretary finds that such exception or waiver is
consistent with the policies of this Act, and is not contrary to
statutory law. In reviewing each request, the Secretary shall follow
the timeline, findings, assistance, hearing, and appeal procedures set
forth in section 102.''.
SEC. 3. AMENDMENTS CLARIFYING CONTRACT SUPPORT COST ENTITLEMENT.
The Indian Self-Determination and Education Assistance Act is
amended--
(1) in section 105(c)(1), by striking the last flush
sentence;
(2) in section 106(b)--
(A) by striking ``the provision of funds under this
Act is subject to the availability of appropriations
and''; and
(B) by adding at the end thereof the following flush
sentence:
``Necessary amounts are appropriated to pay contract support costs when
not otherwise provided for.'';
(3) in section 1(b)(4) of the model contract set forth in
section 108(c), by striking ``Subject to the availability of
appropriations, the'' and inserting ``The''; and
(4) in section 106(a)(5) by adding at the end thereof the
following flush sentence:
``Notwithstanding any other provision of law, the Secretary shall fully
pay preaward and startup costs without regard to the year in which such
costs were incurred or will be incurred, including such costs payable
to tribes and tribal organizations identified by the Indian Health
Service as `ISD Queue Tribes' in its September 17, 1999, report
entitled `FY 1999 IHS CSC Shortfall Data'.''.
SEC. 4. AMENDMENT ENLARGING CONTRACT PROPOSAL REVIEW PERIOD.
Section 102(a)(2) of the Indian Self-Determination and Education
Assistance Act is amended--
(1) by striking ``ninety'' in the second sentence and
inserting ``180''; and
(2) by striking ``90-day'' in the third sentence and
inserting ``180-day''.
SEC. 5. AMENDMENTS REGARDING JUDICIAL REMEDIES.
Section 110 of the Indian Self-Determination and Education Assistance
Act is amended--
(1) in subsection (c), by inserting after ``administrative
appeals'' the following: ``, and section 2412(d)(2)(A) of title
28, United States Code, shall apply to appeals filed with
administrative appeals boards, in appeals''; and
(2) by adding at the end the following new subsections:
``(f) Reimbursement of Payments.--None of the funds appropriated to
the Secretary to carry out programs, functions, services, or activities
that are contractible under this Act shall be available to reimburse
payments made in satisfaction of judgments awarded under subsections
(a) and (d).''.
Purpose of the Bill
The purpose of H.R. 4148 is to make technical amendments to
the provisions of the Indian Self-Determination and Education
Assistance Act relating to contract support costs, and for
other purposes.
Background and Need for Legislation
Under section 106(a)(2) of Public Law 93-638, the Indian
Self-Determination and Education Assistance Act, American
Indian and Alaska Native tribes are authorized to enter into
contracts or compacts with the Indian Health Service (IHS) and
the Bureau of Indian Affairs (BIA) to directly administer
health care and BIA programs previously administered by the two
agencies. Congress strongly advocated this change to allow
tribes to provide direct and improved services to their
members.
Contract support costs are directly associated with
administering these programs and are based on three cost
categories: start up costs, indirect costs and direct costs.
Start-up costs are one-time costs incurred in planning and
assuming management of the programs. Examples include buying
computers and training staff. Indirect costs are on-going
overhead expenses, which are often divided into three groups--
management and administration, facilities and equipment, and
general services and expenses. Management and administration
includes financial and personnel management, procurement,
property and records management, data processing, and office
services. Facility and equipment includes buildings, utilities,
housekeeping, repair and maintenance, and equipment. General
services include insurance and legal services, audit, general
expenses, interest and depreciation. Direct costs include
unemployment taxes and workers compensation insurance for
direct program salaries.
However, the consistent failure of the IHS and BIA to fully
fund contract support costs has resulted in financial
management problems for tribes as they struggle to pay for
federally-mandated annual single-agency audits, liability
insurance, financial management systems, personnel salaries,
property management and other administrative costs. Congress
must remember that tribes are operating federal programs and
are carrying out federal responsibilities when they operate
self-determination contracts. Tribes, in some instances, have
had to resort to using their own financial resources to
subsidize contract support costs. The Committee believes that
tribes should not be forced to use their own financial
resources to subsidize federal contract support costs.
The Committee on Resources held two hearings in 1999
(February 24 and August 3) to accept testimony from the
Administration and tribes to provide a proposed resolution to
the problems associated with contract support costs.
The General Accounting Office (GAO) was asked to submit a
report to Congress on the shortfalls of contract support costs.
In its June 1999 report entitled Indian Self-Determination Act:
Shortfalls in Indian Contract Support Costs Need to be
Addressed, the GAO recommended that the Secretaries of the
Interior and Health and Human Services work together to develop
a standard policy on funding contract support costs, and ensure
that the BIA and IHS correctly adjust funding when tribes use
provisional-final rates. GAO provided four alternatives for
Congress to consider: (1) fully fund contract support costs
each year; (2) amend the Indian Self-Determination and
Education Assistance Act to eliminate the provision requiring
that contract support costs be fully funded at 100 percent of
the allowable costs identified by BIA and IHS; (3) amend the
Act to limit indirect costs by imposing either a flat rate or
capped rate; and (4) amend the Act to eliminate the provision
for funding contract support costs over and above the program
base and provide for consolidated support costs.
Additionally, the National Congress of American Indians
Policy Work Group on Contract Support Costs also directed the
tribal leadership to work with the Administration to submit
recommendations to resolve the shortfalls in contract support
costs.
H.R. 4148 is the result of the National Congress of
American Indians National Policy Work Group and the
Administration's efforts to resolve contract support costs
problems. H.R. 4148 also incorporates GAO recommendations.
Committee Action
H.R. 4148 was introduced March 30, 2000, by Congressman Don
Young (R-AK). The bill was referred to the Committee on
Resources. On May 16, 2000, the Committee held a hearing on the
bill. On June 28, 2000, the Committee met to consider the bill.
Congressman Young offered an amendment in the nature of a
substitute which was adopted by voice vote. The bill, as
amended, as then ordered favorably reported to the House of
Representatives by voice vote.
Section-by-Section Analysis
Section 1. Short title
This section provides the bill's short title, the ``Tribal
Contract Support Cost Technical Amendments of 2000.''
Section 2. Amendment detailing calculation and payment of contract
support costs
This section adds a new section 106A to the Indian Self-
Determination and Education Assistance Act (referred to in this
section as ``the Act''). This section is devoted exclusively to
contract support cost matters.
Subsection 106A(a) requires that all federal agencies abide
by the government-wide negotiated indirect cost agreement
established by each tribal contractor's cognizant federal
agency under Office of Management and Budget Circular A-87
(typically, the Department of the Interior's Office of
Inspector General). This subsection clarifies that the cost
recovery accounting provisions do not in and of themselves
entitle tribes to additional funds from other federal agencies.
It also limits the subsection to situations where Congress has
not directly spoken to the issue in other legislation.
Subsection 106A(b) addresses the fact that the indirect
costs paid to a tribe under the Indian Self-Determination and
Education Assistance Act are pooled with other federal funds
administered by a tribal contractor, and thus are spent
together out of a single account. Subsection (b) clarifies that
the self-determination rules regarding expenditure of funds set
forth in subsections 106(i) and (j) of the Indian Self-
Determination and Education Assistance Act apply to the tribal
expenditure of all other federal funds received by a tribe
under any other federal statute. This subsection clarifies that
this section only applies to pooled ``indirect cost'' funds.
Subsection 106A(c) of the bill establishes a new initiative
under which the relevant Secretary is directed to consolidate
all program funds and contract support cost funds into a single
amount, as suggested by the General Accounting Office in its
report referenced above. Under subparagraph (1), the relevant
Secretary will be required to pay tribes and tribal
organizations a consolidated amount if: (A) the tribe or tribal
organization operates a mature contract under Title I of the
Act (regardless of whether the tribe or tribal organization has
requested such designation), or is operating a self- governance
agreement under Titles III or IV of the Act; (B) the tribe or
tribal organization's indirect cost rate has remained stable
for a period of three years; and (C) at the time of the
consolidation the tribe or tribal organization is receiving its
full contract support cost entitlement as determined pursuant
to Section 106(a)(2) of the Act. Subparagraphs (2) and (3)
would require annual adjustments in the contract support cost
component of the consolidated amount, based upon the medical
inflation rate (for IHS-paid contract support costs) or the
consumer price index (for BIA-paid contract support costs).
Subparagraph (4) would require additional contract support cost
adjustments from time to time as positions under federal
employment at the initial time of consolidation thereafter
transfer to tribal employment. Once added, such additional
amounts become a part of the recurring consolidated contract
amount. Under subparagraph (5), tribes and tribal organizations
would not be entitled to any additional sums for contract
support costs under other provisions of the Act, regardless of
changes in a tribe's or tribal organization's base or its
indirect cost rate (except for the inflationary and direct
contract support cost adjustments noted in subsections (2)
through (4)). Subparagraph (6) reiterates that the existing
tribal rebudgeting authority, including the authority to spend
``contract support funds'' for ``program'' purposes and vice
versa, remains unaffected during the period of consolidation.
Subparagraph (7) provides that in the event a tribe or tribal
organization's total indirect cost base increases or decreases
by more than 20 percent over the amount paid to the tribe or
tribal organization during the preceding year, the relevant
Secretary is required to deconsolidate the funds. In such
event, the parties must renegotiate the tribe's or tribal
organization's contract support cost requirements based upon
the changed circumstances. This subsection also adds a
provision triggering deconsolidation in the event a tribe's
direct cost base cumulatively increases or decreases more than
40 percent over three years. It also adds a provision
authorizing the relevant Secretary, for ``good cause'' shown,
to deconsolidate funds for any other reason such as a fire or
other catastrophe. Subparagraph (8) makes clear that the
consolidation of contract funds does not affect the continuing
right of a tribe or tribal organization to contract or compact
for the operation of new or expanded agency programs and to be
paid full contract support costs associated with such programs.
Subparagraph (8) provides that the program and contract support
amounts associated with the expanded operations are to be added
to the consolidated amount. Subparagraph (9) clarifies that
although contract amounts will be consolidated, a tribe may
still retain separate contracts for different programs, if that
is its choice.
Subsection 106A(d) requires IHS to transfer the
responsibility for the negotiation, review and approval of
tribal contract support costs from the Division of Financial
Management to the Office of Tribal Programs (OTP). This
subsection clarifies that OTP is not authorized to depart from
a tribe's or tribal organization's indirect cost agreement with
its cognizant federal agency.
Subsection 106A(e) clarifies that direct contract support
cost entitlements are to be calculated on all federal positions
transferred to tribal operation at the time a contract,
compact, or funding agreement is executed, including federal
employees funded through third-party revenues such as Medicare
payments, Medicaid payments and payments from third-party
insurers.
New section 106A(f) authorizes the issuance of a joint BIA
and IHS regulation, through negotiated rulemaking, to address
the allowability of costs expended under the Act, including
expenditures from a tribe's indirect cost pool and expenditures
for direct contract support cost purposes. This section
includes a regulation waiver provision modeled on section 107
of Title I of the Act.
Section 3. Amendments clarifying contract support cost entitlement
Subsections (1) through (3) clarify that contract support
costs are an entitlement, and specifically removes three
provisions from the Act relied on by the agencies to argue
otherwise. This section also provides that necessary amounts
are appropriated to pay contract support costs. Subsection (4)
clarifies that under section 106(a)(5) of the Act, ``start-up''
contract support costs that are or have been incurred in a year
prior to the contract year shall be paid on the same basis as
other contract support costs, including costs paid by a tribe
or tribal organization prior to enactment of the bill. This
section also clarifies that the intent of the final clause is
to require IHS to pay all start-up costs identified on the last
IHS ``Queue'' that were either never paid at all or were only
partially paid during the transition in IHS policy from fiscal
year 1998 to fiscal year 1999.
Section 4. Amendment enlarging contract proposal review period
Section 4 of the bill enlarges from 90 days to 180 days the
period during which the relevant Secretary may review and
either approve or decline a contracting proposal.
Section 5. Amendments regarding judicial remedies
This section amends section 110 of the Act to create a new
subsection (f) clarifying that IHS and BIA funds providing
services to Indian and Alaska Native tribes are not to be
considered ``available'' to repay any court judgments the
agencies may suffer in litigation. This section also adds an
amendment to section 110(c) of the Act to clarify that
administrative law judges may set Equal Access to Justice Act
rates within the same parameters as district courts.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article 1, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. According to the Congressional Budget Office,
enactment of this bill would increase direct spending.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of Rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 7, 2000.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4148, the Tribal
Contract Support Cost Technical Amendments of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Keith.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 4148--Tribal Contract Support Cost Technical Amendments of 2000
Summary: H.R. 4148 would change the way contracts and
contract support costs are funded under the Indian Self
Determination Act. Because such contract costs and contract
support costs would no longer be subject to appropriation, CBO
estimates that enacting the bill would increase direct spending
by $11 billion over the 2001-2005 period. This change could
reduce the need for appropriated funds for contracts and
support costs under the Indian Self Determination Act. Because
the bill would affect direct spending, pay-as-you-go procedures
would apply. H.R. 4148 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA) and would impose no costs on state, local, or
tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 4148 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development) and 550 (health).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2001 2002 2003 2004 2005
----------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Estimated Budget Authority......................................... 2,126 2,252 2,366 2,480 2,602
Estimated Outlays.................................................. 1,594 2,139 2,307 2,445 2,566
----------------------------------------------------------------------------------------------------------------
Basis of estimate: Under the Indian Self Determination Act,
Indian tribes are authorized to enter into contracts with the
Indian Health Service (IHS) and the Bureau of Indian Affairs
(BIA) to directly implement federal programs and services that
would benefit Indians. In addition, the agencies provide the
tribes with funding for contract support costs, including the
costs of facilities, equipment, legal services, and salaries.
All such funding is subject to the availability of appropriated
funds. Based on information from BIA and IHS, we estimate these
agencies will spend about $2 billion in 2000 to fund contracts
and contract support costs under the Indian Self Determination
Act. H.R. 4148 would authorize IHS and BIA to provide funding
to tribes for contracts and contract support under the Indian
Self Determination Act without further appropriation action.
Direct spending
Because the costs for Indian Self Determination contracts
would not be constrained by the availability of appropriated
funds, CBO expects that tribes would have a greater incentive
to contract with the agencies than they do under current law.
Therefore, CBO expects that under the bill the number of tribes
that contract with BIA and IHS for Indian services would
increase and that tribes would be more likely to enter into
multiple contracts with the agencies. CBO estimates that
enacting the bill would increase direct spending by about $9
million over the five-year period for the cost of the contracts
between the tribes and the agencies.
Historically, the Congress has appropriated about 85
percent of the amounts necessary to fully fund contract support
costs. H.R. 4148 would require IHS and BIA to fund contract
support costs at 100 percent of the rate negotiated by the
tribes and the agencies. The bill also would require BIA to
provide tribes with certain contract support that the agency
does not currently provide. Based on information from IHS and
BIA, CBO estimates that it would cost $2 billion over the 2001-
2005 period to provide the required level of contract support.
Spending subject to appropriation
Based on historical data from IHS and BIA, CBO estimates
that contracts under the Indian Self Determination Act will
cost nearly $1.6 billion in fiscal year 2000 and that the
agencies' budget requests are likely to increase, under current
law, by about 3 percent each year. In addition, we estimate
that contract support costs are currently funded at about $350
million a year, or about 22 percent of the total contract
costs. Because H.R. 4148 would reduce or eliminate the need for
appropriations to support these programs, CBO expects that
enactmentof the bill would lead to a significant reduction in
appropriated funds to BIA and IHS. Any such savings, however, would be
subject to future appropriation acts.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. The net
changes in outlays that are subject to pay-as-you-go procedures
are shown in the following table. For the purposes of enforcing
pay-as-you-go procedures, only the effects in the current year,
the budget year, and the succeeding four years are counted.
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------------------------------------------
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in outlays............................................... 0 1,594 2,139 2,307 2,445 2,566 2,693 2,828 2,969 3,113 3,268
Changes in receipts.............................................. Not applicable
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact: H.R. 4148
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Lanette J. Keith and
Eric Rollins. Impact on State, Local, and Tribal Governments:
Marjorie Miller. Impact on the Private Sector: Sarah Sitarek.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
* * * * * * *
TITLE I--INDIAN SELF-DETERMINATION ACT
* * * * * * *
contracts by the secretary of the interior
Sec. 102. (a)(1) * * *
* * * * * * *
(2) If so authorized by an Indian tribe under paragraph (1)
of this subsection, a tribal organization may submit a proposal
for a self-determination contract, or a proposal to amend or
renew a self-determination contract, to the Secretary for
review. Subject to the provisions of paragraph (4), the
Secretary shall, within [ninety] 180 days after receipt of the
proposal, approve the proposal and award the contract unless
the Secretary provides written notification to the applicant
that contains a specific finding that clearly demonstrates
that, or that is supported by a controlling legal authority
that--
(A) * * *
* * * * * * *
Notwithstanding any other provision of law, the Secretary may
extend or otherwise alter the [90-day] 180-day period specified
in the second sentence of this subsection, if before the
expiration of such period, the Secretary obtains the voluntary
and express written consent of the tribe or tribal organization
to extend or otherwise alter such period. The contractor shall
include in the proposal of the contractor the standards under
which the tribal organization will operate the contracted
program, service, function, or activity, including in the area
of construction, provisions regarding the use of licensed and
qualified architects, applicable health and safety standards,
adherence to applicable Federal, State, local, or tribal
building codes and engineering standards. The standards
referred to in the preceding sentence shall ensure structural
integrity, accountability of funds, adequate competition for
subcontracting under tribal or other applicable law, the
commencement, performance, and completion of the contract,
adherence to project plans and specifications (including any
applicable Federal construction guidelines and manuals), the
use of proper materials and workmanship, necessary inspection
and testing, and changes, modifications, stop work, and
termination of the work when warranted.
* * * * * * *
ADMINISTRATIVE PROVISIONS
Sec. 105. (a) * * *
* * * * * * *
(c)(1) A self-determination contract shall be--
(A) * * *
* * * * * * *
[The amounts of such contracts shall be subject to the
availability of appropriations.]
* * * * * * *
Sec. 106. (a)(1) * * *
* * * * * * *
(5) Subject to paragraph (6), during the initial year that a
self-determination contract is in effect, the amount required
to be paid under paragraph (2) shall include startup costs
consisting of the reasonable costs that have been incurred or
will be incurred on a one-time basis pursuant to the contract
necessary--
(A) * * *
* * * * * * *
Notwithstanding any other provision of law, the Secretary shall
fully pay preaward and startup costs without regard to the year
in which such costs were incurred or will be incurred,
including such costs payable to tribes and tribal organizations
identified by the Indian Health Service as ``ISD Queue Tribes''
in its September 17, 1999, report entitled ``FY 1999 IHS CSC
Shortfall Data''.
* * * * * * *
(b) The amount of funds required by subsection (a)--
(1) * * *
* * * * * * *
Notwithstanding any other provision in this Act, [the provision
of funds under this Act is subject to the availability of
appropriations and] the Secretary is not required to reduce
funding for programs, projects, or activities serving a tribe
to make funds available to another tribe or tribal organization
under this Act.
Necessary amounts are appropriated to pay contract support
costs when not otherwise provided for.
* * * * * * *
SEC. 106A. CONTRACT SUPPORT COSTS.
(a) Other Federal Agencies.--Except as otherwise provided by
statute, an Indian tribe or tribal organization administering a
contract or compact under this Act shall be entitled to recover
its full indirect costs associated with any other Federal
funding received by such tribe or tribal organization (other
than funds paid under this Act), consistent with the tribe's or
tribal organization's indirect cost rate agreement with its
cognizant Federal agency. Thissubsection shall not
independently entitle such tribe or tribal organization to be paid
additional amounts associated with such other Federal funding.
(b) Allowable Uses of Funds.--Notwithstanding any other
provision of law (including regulation or circular), an Indian
tribe or tribal organization (1) administering a contract or
compact under this Act and (2) employing an indirect cost pool
that includes both funds paid under this Act and other Federal
funds, shall be entitled to use or expend all Federal funds in
such tribe's or tribal organization's indirect cost pool in the
same manner as permitted in section 106(j) (relating to
allowable uses of funds without approval of the Secretary), and
for such purposes only the term ``Secretary'' means the
Secretary of any Federal agency providing funds to such tribe
or tribal organization.
(c) Consolidated Contract Amount.--
(1) Conditions for consolidation.--Commencing in
fiscal year 2003, the Secretary shall consolidate all
funds paid to a tribe or tribal organization pursuant
to paragraphs (1) and (2) of section 106(a) into a
single consolidated contract or compact amount if the
following conditions have been met:
(A) The tribe or tribal organization
qualifies to carry out a mature contract under
this title or is operating a self-governance
agreement under any other title of this Act.
(B) The tribe's or tribal organization's
indirect cost rate has not varied more than 10
percent over the prior year's rate for the
preceding 3 years (for tribes or tribal
organizations that have no indirect rate, this
criterion shall be satisfied if the ratio of
the tribe's or tribal organization's contract
support requirement to its direct cost base has
not varied more than 10 percent over the ratio
for the preceding 3 years).
(C) At the time of the consolidation the
tribe or tribal organization is receiving its
full contract support cost requirement as
determined under section 106(a)(2).
(2) Medical inflation rate adjustments.--Each year
following the consolidation required by paragraph (1),
the Secretary of Health and Human Services shall
increase the amount of contract support costs paid as
part of the consolidated amount by an amount equal to--
(A) the adjustment in the medical care
component of the national consumer price index
over the preceding year, multiplied by
(B) the contract support cost amount paid in
the preceding year as part of the consolidated
amount.
(3) Consumer price index adjustments.--Each year
following the consolidation required by paragraph (1),
the Secretary of the Interior shall increase the amount
of contract support costs paid as part of the
consolidated amount by an amount equal to--
(A) the adjustment in the national consumer
price index over the preceding year, multiplied
by
(B) the contract support cost amount paid in
the preceding year as part of the consolidated
amount.
(4) Employment adjustments.--A tribe or tribal
organization shall be entitled to receive additional
contract support costs associated with the transfer of
employees from Federal employment to tribal employment.
Such additional contract support costs shall be added
to the consolidated amount determined and adjusted
under paragraphs (1), (2), and (3), and shall
thereafter become a part of the consolidated amount.
(5) Additional contract support costs.--
Notwithstanding any other provision of this Act, and
except as provided in paragraphs (4) and (8), the tribe
or tribal organization shall not be entitled to receive
any contract support costs additional to those
contained within the consolidated amount determined and
adjusted under paragraphs (1), (2), and (3).
(6) Rebudgeting authority unaffected.--The tribe or
tribal organization may rebudget all contract or
compact funds as specified in section 106(n).
(7) Deconsolidation.--Except as provided in paragraph
(8), in the event--
(A) the amount of program funds paid under
section 106(a)(1) as part of the consolidated
amount, when combined with other program funds
paid to the tribe or tribal organization from
other funding sources, increases or decreases
by more than--
(i) 20 percent over the amount paid
in the preceding year; or
(ii) 40 percent over the amount paid
in the preceding three years; or
(B) the Secretary for good cause shown
agrees,
the amounts paid by the Secretary under this section
shall be deconsolidated, and such amounts shall be
recalculated and paid as specified elsewhere in this
Act. Upon such recalculation, the recalculated amounts
shall be reconsolidated into a single amount as
otherwise described in this subsection.
(8) Contracting additional programs.--Nothing in this
subsection shall affect the right of a tribe or tribal
organization to contract or compact for the operation
of new or expanded programs, services, functions, or
activities not included in the consolidated amount paid
under paragraph (1), or to be paid the full amount of
contract support costs associated with such additional
contracted or compacted programs, as provided in
section 106(a)(1) and other provisions of this Act. Any
such additional programs and associated contract
support costs shall be added to the consolidated amount
determined and adjusted under paragraphs (1), (2), and
(3).
(9) Separate contracts and compacts.--Nothing in this
subsection shall require a tribe or tribal organization
to consolidate separate contracts or compacts
administered under this Act into a single contract or
compact.
(d) Negotiation of Contract Support Cost Amounts.--Within the
Indian Health Service of the Department of Health and Human
Services, the negotiation, review, and approval of tribal
contract support cost entitlements shall be the responsibility
of the Office of Tribal Programs, subject to the tribe's or
tribal organization'sindirect cost rate agreement with the
tribe's or tribal organization's cognizant Federal agency.
(e) Direct Contract Support Costs and Federal Employees.--The
contract support costs that are eligible costs for the purposes
of receiving funding under this Act shall include direct
contract support costs associated with all Federal employees
employed in connection with the program, service, function, or
activity that is the subject of the contract, including all
Federal employees paid with funds generated from third-party
collections.
(f) Regulations.--The Secretary of the Interior and the
Secretary of Health and Human Services are authorized to
promulgate joint regulations relating to the allowability of
costs expended under this Act, including all pooled indirect
costs and direct contract support costs. In promulgating such
regulations the Secretaries shall follow the procedures set
forth in sections 107(a)(2)(A), 107(d)(1), 107(d)(2)(A),
107(d)(2)(B), 107(d)(2)(D), and 107(d)(2)(E), and shall publish
proposed regulations in the Federal Register to carry out this
subsection not later than 180 days after the date of enactment
of the Tribal Contract Support Cost Technical Amendments of
2000. The authority to promulgate regulations under this
subsection shall expire if final regulations are not
promulgated within 18 months after the date of enactment of the
Tribal Contract Support Cost Technical Amendments of 2000. In
the event of a conflict between such regulations and any Office
of Management and Budget circular, the provision of such
regulations shall control. The Secretary may, with respect to a
contract or compact entered into under this Act, make
exceptions in the regulations promulgated to carry out this
subsection, or waive such regulations, if the Secretary finds
that such exception or waiver is consistent with the policies
of this Act, and is not contrary to statutory law. In reviewing
each request, the Secretary shall follow the timeline,
findings, assistance, hearing, and appeal procedures set forth
in section 102.
* * * * * * *
SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.
(a) * * *
* * * * * * *
(c) The model agreement referred to in subsection (a)(1)
reads as follows:
``SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE ____ TRIBAL
GOVERNMENT.
``(a) * * *
* * * * * * *
``(b) Terms, Provisions, and Conditions.--
``(1) * * *
* * * * * * *
``(4) Funding amount.--[Subject to the availability
of appropriations, the] The Secretary shall make
available to the Contractor the total amount specified
in the annual funding agreement incorporated by
reference in subsection (f)(2). Such amount shall not
be less than the applicable amount determined pursuant
to section 106(a) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j-1).
* * * * * * *
Sec. 110. (a) * * *
* * * * * * *
(c) The Equal Access to Justice Act (Publc Law 96-481, Act
of October 1, 1980; 92 Stat. 2325, as amended), section 504 of
title 5, United States Code, and section 2412 of title 28,
United States Code shall apply to administrative appeals, and
section 2412(d)(2)(A) of title 28, United States Code, shall
apply to appeals filed with administrative appeals boards, in
appeals pending on or filed after the date of enactment of the
Indian Self-Determination and Education Assistance Act
Amendments of 1988 by tribal organizations regarding self-
determination contracts.
* * * * * * *
(f) Reimbursement of Payments.--None of the funds
appropriated to the Secretary to carry out programs, functions,
services, or activities that are contractible under this Act
shall be available to reimburse payments made in satisfaction
of judgments awarded under subsections (a) and (d).
* * * * * * *