42 C.F.R. Subpart H—Final Offer
Title 42 - Public Health
This subpart explains the final offer process provided by the statute for resolving, within a specific timeframe, disputes that may develop in negotiation of compacts, funding agreements, or amendments thereof. A final offer should be submitted when the Secretary and an Indian Tribe are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels). (a) A written final offer should be submitted: (1) During negotiations to the agency lead negotiator or (2) Thereafter to the Director. (b) The document should be separate from the compact, funding agreement, or amendment and clearly identified as a “Final Offer.” A final offer contains a description of the disagreement between the Secretary and the Indian Tribe and the Indian Tribe's final proposal to resolve the disagreement. The 45 day review period begins from the date the IHS receives the final offer. Proof of receipt may include a date stamp, or postal return receipt, or hand delivery. Yes, the Secretary may request an extension of time before the expiration of the 45 day review period. The Indian Tribe may either grant or deny the Secretary's request for an extension. To be effective, any grant of extension of time must be in writing and be signed by the person authorized by the Indian Tribe to grant the extension before the expiration of the 45 day review period. The final offer is accepted automatically by operation of law. No, there are no exceptions to this rule if the 45 day review period or extension thereto, has expired, and the Tribe's offer is deemed accepted by operation of law. After the Indian Tribe's final offer is accepted or deemed accepted, the terms of the Indian Tribe's final offer and any funds included therein, shall be added to the funding agreement or compact within 10 days of the acceptance or the deemed acceptance. The Secretary may reject an Indian Tribe's final offer for one of the following reasons: (a) the amount of funds proposed in the final offer exceeds the applicable funding level to which the Indian Tribe is entitled under the Act; (b) the PSFA that is the subject of the final offer is an inherent Federal function that cannot legally be delegated to an Indian Tribe; (c) the Indian Tribe cannot carry out the PSFA in a manner that would not result in significant danger or risk to the public health; or (d) the Indian Tribe is not eligible to participate in self-governance under section 503 of the Act [25 U.S.C. 458aaa–2]. The Secretary must reject a final offer by providing written notice to the Indian Tribe based on the criteria in §137.140 not more than 45 days after receipt of a final offer, or within a longer time period as agreed by the Self-Governance Tribe consistent with this subpart. A significant danger or risk is determined on a case-by-case basis in accordance with section 507(c) of the Act [25 U.S.C. 458aaa–6(c)]. The Secretary must provide funds under a funding agreement in an amount equal to the amount that the Indian Tribe would have been entitled to receive under self-determination contracts under this Act, including amounts for direct program costs specified under section 106(a)(1) of the Act [25 U.S.C. 450j–1(a)(1)] and amounts for contract support costs specified under section 106(a) (2), (3), (5), and (6) of the Act [25 U.S.C. 450j–1(a)(2), (3), (5) and (6)], including any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the Indian Tribe or its members, all without regard to the organizational level within the Department where such functions are carried out. Yes, upon receiving a final offer, the Secretary must offer any necessary technical assistance, and must share all relevant information with the Indian Tribe in order to avoid rejection of a final offer. Yes, the Secretary must offer and, if requested by the Indian Tribe, provide additional technical assistance to overcome the stated grounds for rejection. Yes, the Indian Tribe is entitled to appeal the decision of the Secretary, with an agency hearing on the record, and the right to engage in full discovery relevant to any issue raised in the matter. The procedures for appeals are found in subpart P of this part. Alternatively, at its option, the Indian Tribe has the right to sue pursuant to section 110 of the Act [25 U.S.C. 450m–1] in Federal district court to challenge the Secretary's decision. Yes, subject to section 507(c)(1)(D) of the Act [25 U.S.C. 458aaa–6(c)(1)(D)]. No, appealing the decision of the Secretary does not prevent entering into the compact, funding agreement, or amendment.
Title 42: Public Health
PART 137—TRIBAL SELF-GOVERNANCE
Subpart H—Final Offer
§ 137.130 What is covered by this subpart?
§ 137.131 When should a final offer be submitted?
§ 137.132 How does the Indian Tribe submit a final offer?
§ 137.133 What does a final offer contain?
§ 137.134 When does the 45 day review period begin?
§ 137.135 May the Secretary request and obtain an extension of time of the 45 day review period?
§ 137.136 What happens if the agency takes no action within the 45 day review period (or any extensions thereof)?
§ 137.137 If the 45 day review period or extension thereto, has expired, and the Tribes offer is deemed accepted by operation of law, are there any exceptions to this rule?
§ 137.138 Once the Indian Tribe's final offer has been accepted or deemed accepted by operation of law, what is the next step?
Rejection of Final Offers
§ 137.140 On what basis may the Secretary reject an Indian Tribe's final offer?
§ 137.141 How does the Secretary reject a final offer?
§ 137.142 What is a “significant danger” or “risk” to the public health?
§ 137.143 How is the funding level to which the Indian Tribe is entitled determined?
§ 137.144 Is technical assistance available to an Indian Tribe to avoid rejection of a final offer?
§ 137.145 If the Secretary rejects a final offer, is the Secretary required to provide the Indian Tribe with technical assistance?
§ 137.146 If the Secretary rejects all or part of a final offer, is the Indian Tribe entitled to an appeal?
§ 137.147 Do those portions of the compact, funding agreement, or amendment not in dispute go into effect?
§ 137.148 Does appealing the decision of the Secretary prevent entering into the compact, funding agreement, or amendment?
Burden of Proof
§ 137.150 What is the burden of proof in an appeal from rejection of a final offer?
With respect to any appeal, hearing or civil action, the Secretary shall have the burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting the final offer.
Decision Maker
§ 137.155 What constitutes a final agency action?
A final agency action shall consist of a written decision from the Department to the Indian Tribe either:
(a) 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
(b) By an administrative judge.
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