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CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
IN THE CASE OF  


SUBJECT: Winslow Indian Health Care Center, Inc.

DATE: June 28, 2004

           

 


 

Docket No. A-04-115
IBIA Docket Nos. 04-17-A and 04-45-A
Decision No. 1928
DECISION
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REMAND OF
ADMINISTRATIVE LAW JUDGE D
ECISION

The Navajo Area Indian Health Service (IHS or NAIHS) appealed the May 3, 2004 Recommended Decision of Administrative Law Judge (ALJ) Andrew S. Pearlstein denying IHS's motion to dismiss for lack of jurisdiction a request for a hearing filed by the Winslow Indian Health Care Center, Inc. (WIHCC). (1) WIHCC sought a hearing pursuant to section 102(b)(3) of the Indian Self-Determination Act and the implementing regulations at 25 C.F.R. Part 900 on IHS's determination not to enter into a Buyback Agreement for personnel services that was proposed by WIHCC for fiscal year (FY) 2004. In relevant part, this proposed Buyback Agreement modified the terms of the FY 2003 Buyback Agreement with respect to the extent of WIHCC's responsibility to reimburse IHS for severance pay and lump-sum leave payments to federal employees assigned to WIHCC who are separated from federal employment pursuant to a reduction in force. IHS moved to dismiss on the ground that its determination not to enter into the FY 2004 Buyback Agreement did not constitute a declination which WIHCC was entitled to appeal under the authorities cited above. The ALJ found that the proposed Buyback Agreement, which was incorporated by reference in WIHCC's proposed Annual Funding Agreement for FY 2004, was an "integral part" of that Annual Funding Agreement as well as WIHCC's self-determination contract, and that IHS's determination was thus an appealable declination. I conclude that the ALJ did not err in concluding that IHS's determination was appealable. Accordingly, I remand the case to the ALJ for further proceedings.

The record in this case consists of IHS's brief on appeal of the ALJ's Recommended Decision, WIHCC's response brief, IHS's reply brief, exhibits submitted with IHS's briefs, the tape recording of an oral argument I conducted by telephone on June 18, 2004, and the record for the ALJ's Recommended Decision. (2)

Statutory and Regulatory Background

The Indian Self-Determination Act (ISDA), 25 U.S.C. � 450f et seq., states that the Secretary of the Department of Health and Human Services (HHS) "is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof" for the benefit of Indians that had previously been provided by IHS. ISDA Section 102(a)(1). (3) The Secretary must approve a proposal for a self-determination contract unless one of the five reasons specified in the statute and regulations for declining a proposal applies. ISDA Section 102(a)(2); 25 C.F.R. � 900.22. Funding for self-determination contracts is provided through annual funding agreements (AFAs). ISDA Section 105(c)(2); 25 C.F.R. � 900.6. (4)

A tribe or tribal organization may request a hearing before an ALJ with respect to "[a] decision to decline to award a self-determination contract, or a portion thereof. . ." or "[a] decision to decline a proposed amendment to a self-determination contract, or a portion thereof . . . ." 25 C.F.R. � 900.150(a) and (c).

Any party may appeal the ALJ's recommended decision with respect to a declination by IHS to the Secretary of HHS by filing written objections to the ALJ's recommended decision within 30 days after receiving it. 25 C.F.R. � 900.166. The recommended decision becomes final if no party files timely objections. 25 C.F.R. � 900.166. The Secretary has 20 days from the date of receipt of any timely objections to modify, adopt, or reverse the recommended decision. 25 C.F.R. � 900.167. On August 16, 1996, the Secretary delegated the authority to hear such appeals to the Appellate Division of the Departmental Appeals Board. I have been appointed by the Board Chair as the deciding official in this case. I must uphold the ALJ's recommended decision unless I determine that it was based on an error of fact or law.

There is no statutory or regulatory provision expressly authorizing an interlocutory appeal; however, neither party objected to the ALJ's determination that his recommended decision should be appealable to the Secretary of HHS on an interlocutory basis. See ALJ Recommended Decision at 16. Moreover, I have previously considered an interlocutory appeal under the procedures at 25 C.F.R. Part 900, noting the absence of any provision in the applicable regulations precluding an interlocutory appeal, or of any authority for the proposition that an administrative body may never consider an interlocutory appeal. Oglala Sioux Tribe, DAB No. 1891, at 8 (2003).

Factual Background

The following facts are undisputed.

WIHCC, a Navajo Nation tribal organization, entered into its initial ISDA contract with IHS for the delivery of health care to the local Navajo population effective September 1, 2002. ALJ Recommended Decision at 3, 7. (5) Article I, Section 2.C., of the contract states that "WIHCC anticipates that [the PFSAs] will be provided either directly by WIHCC or by subcontracts . . . ." IHS Ex. C. (6) Article V, Section 5, of the contract, captioned "Use of Federal Employees," states that "Section 104 of the Indian Self-Determination and Education Assistance Act, as amended, shall apply to this Contract and to any individuals assigned or detailed or leaving federal employment to perform under this Contract." Id.

The contract includes as an attachment an Annual Funding Agreement (AFA), which in turn includes as an attachment a "Buyback Agreement." Id. at 3. The FY 2002-2003 Buyback Agreement provides that WIHCC would pay the "entire cost" of assignments of federal employees to WIHCC under the Intergovernmental Personnel Act (IPA) or, in the case of Commissioned Corps personnel, pursuant to a Memorandum of Agreement (MOA). Id.; IHS Ex. E, section 2.3. As relevant here, the agreement specifies that these costs include the following:

2.3.1.4. Severance pay for employees separated pursuant to a reduction in force (RIF) by NAIHS.

2.3.1.6. Lump sum leave payments for employees who leave federal service. The liability for accrued leave on existing, renewed, and new IPA/MOAs shall be the responsibility of WIHCC. All leave accrued by an employee prior to his/her assignment to WIHCC shall be identified in the IPA/MOA negotiated between the parties.

IHS Ex. E.

In July 2003, WIHCC submitted to IHS a proposal for a renewal AFA, including as an attachment a proposed Buyback Agreement which modified the language concerning severance costs and lump-sum leave payments as follows:

That portion of any severance pay due an employee assigned to WIHCC and separated pursuant to a reduction in force by IHS attributable to the pro-rated length of time the employee was on IPA or MOA assignment to WIHCC, unless a greater portion of such costs are made available to WIHCC from IHS through contract support or other funds, and in that event, WIHCC shall reimburse that portion or all of such costs commensurate with the amount provided by IHS for that purpose[.]

That portion of any lump sum leave payments due an employee assigned to WIHCC and subsequently separated from federal employment attributable to the pro-rated length of time the employee was on IPA or MOA assignment to WIHCC, unless a greater portion of such costs are made available to WIHCC from IHS through contract support or other funds, and in that event, WIHCC shall reimburse that portion or all of such costs commensurate with the amount provided by IHS for that purpose[.]

Id. at 5; IHS Ex. H, section 2.3. It is undisputed that the effect of these changes would be that WIHCC would be responsible only for severance pay and leave costs attributable to the period of time that the individual was assigned to WIHCC.

The parties agreed on all terms of the AFA and the Buyback Agreement except this new provision. Id. Ultimately, IHS offered to approve the FY 2004 AFA by removing references to the Buyback Agreement while the issue in the proposed Buyback Agreement remained in dispute. Id. at 6. WIHCC refused that offer, and WIHCC has continued to operate under a series of 90-day extensions of its FY 2003 AFA. Id.

ANALYSIS
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As indicated above, the ALJ rejected IHS's position that the appeal should be dismissed as not within his jurisdiction to hear appeals from decisions declining proposals for ISDA contracts or contract amendments. IHS argued before the ALJ that-

the Buyback Agreement is a separate, discretionary agreement for WIHCC to employ federal personnel, and is not an agreement to plan, conduct, or administer IHS programs. NAIHS thus concludes that the Buyback Agreement does not fall within the definition of a "self-determination contract" in 25 U.S.C. �450f(a)(1), and is therefore not subject to the declination and appeal procedures in �450f(a)(2) and (b).

ALJ Recommended Decision at 8. The ALJ concluded that the proposed Buyback Agreement is "more logically viewed as an integral part of the AFA and self-determination contract, which has real implications on the funding available to WIHCC to carry out its contracted PFSAs." Id. The ALJ noted that IHS's reason for not entering into the proposed Buyback Agreement "squarely falls within the reason for declining a portion of a contract in [25 U.S.C. �450f(a)(2)(D) (ISDA Section 102(a)(2)(D))], that the amount of funds sought by WIHCC would be in excess of the NAIHS's determination of the applicable funding level for the contract." Id. at 9. The ALJ stated that IHS's argument "is unduly restrictive in its interpretation of the nature of the self-determination contracting process." Id. The ALJ continued:

Such a Buyback Agreement, with a provision requiring WIHCC to pay all leave and severance costs, was included in the 2002 and 2003 contracts. It was physically attached as Attachment F and is explicitly incorporated into the AFA and repeatedly referred to. See AFA, �� 5(A), 5(C), 5(G), and 6(B). The Buyback Agreement (Section I) likewise states it is adopted pursuant to the AFA. Generally, "the terms and specifications of a Government contract necessarily include all items included in the schedule, general provisions, and attachments." United Food Services v. U.S., 19 Ct. Cl. 539 (1990).

Id. at 9. The ALJ further noted that the ISDA "explicitly recognizes the need for tribes and tribal organizations, at least in their initial self-determination contracts, to hire federal employees in order to adequately staff their facilities." Id. at 10, citing 25 U.S.C. �450i (ISDA Section 104). (7) The ALJ then stated that since "the need for WIHCC to hire such federal employees on assignment in order to carry out its PFSAs is not in dispute," the costs associated with hiring these employees--

are therefore appropriately considered as part of a "self-determination contract" as defined in the ISDA - "a contract between a tribe and the appropriate Secretary for the planning, conduct and administration of programs and services which are otherwise provided to Indian tribes and their members pursuant to Federal law." 25 U.S. �450b(j). It is neither practical nor logical to separate the costs of retaining necessary personnel to carry out the contract from being included in the contract and annual funding agreement.

Id. at 10. The ALJ also noted that-

[t]he Departments' own manual for negotiation of self-determination contracts, the DOI/HHS Internal Agency Procedures Handbook for Non-Construction Contracting Under Title I of the Indian Self-Determination and Education Assistance Act, recognizes Buyback Agreements as fully within the scope of negotiation for contracts and AFAs.

Id. Finally, the ALJ concluded that, contrary to what IHS argued, the annual appropriations statutes for the Indian Health Service authorizing IHS to provide goods and services on a reimbursable basis with respect to functions transferred by IHS to tribes or tribal organizations do not "constitute persuasive authority to simply assert that a buyback agreement is outside the scope and jurisdiction of the ISDA." Id. at 11. In support of this conclusion, the ALJ noted that-

the IPA/MOA assignments to tribes were entered into under the much more specific authority in the ISDA itself, the amendments now codified at 5 U.S.C. � 450i which set forth guidelines for tribes' hiring of federal employees.

Id.

Summary of IHS's Arguments on Appeal

On appeal, IHS argued that the ALJ erred in finding that WIHCC's proposed Buyback Agreement was an integral part of a self-determination contract and was thus subject to the declination procedures. IHS pointed out that the statutory model AFA states that the contract--

shall only contain-(i) terms that identify the programs, services, functions, and activities to be performed or administered, the general budget category assigned, the funds to be provided, and the time and method of payment; and (ii) such other provisions . . . to which the parties agree.

IHS Br. dated 6/2/04, at 25, quoting 25 U.S.C. � 450l(c) (ISDA section 108(c)). (8) IHS asserted that, at the time WIHCC submitted the proposed Buyback Agreement, "WIHCC had already contracted for the PFSAs and received the funding for them." Id. at 22. IHS characterized the proposed Buyback Agreement as "essentially a subcontract between WIHCC and NAIHS under which WIHCC would pay NAIHS for the provision of staffing services to use in the operation of the PFSAs transferred to WIHCC under its self-determination contract." Id. at 27. IHS contended that the ALJ's determination that the proposed Buyback Agreement identified PFSAs was predicated on his erroneous finding that WIHCC needed federal employees under IPAs and MOAs to carry out its PFSAs. IHS asserted that although section 104 of the ISDA, in conjunction with the appropriations statutes, authorizes tribes and tribal organizations to use federal employees to carry out PFSAs under reimbursable contracts with IHS, the section does not require such arrangements. IHS argued that accordingly the proposed Buyback Agreement could not properly be considered part of the proposed FY 2004 AFA since the parties did not agree on its terms. IHS argued that it was thus immaterial that the proposed Buyback Agreement was incorporated by reference in the AFA. IHS also asserted that the chapter of the Internal Agency Procedures Handbook on which the ALJ relied was inapplicable to the proposed Buyback Agreement, which was instead covered by another chapter which does not treat IPA/MOA assignments as modifying a self-determination contract. Finally, IHS argued that the fact that IHS determined not to enter into the proposed Buyback Agreement for a reason that is a potential basis for declination under the ISDA does not mean that the proposed Buyback Agreement is subject to the declination procedures. (9)

Discussion

I conclude that the ALJ did not err when he concluded that IHS's determination not to enter into the proposed Buyback Agreement was subject to the declination procedures.

Section 102(b)(3) of the ISDA provides that, "[w]henever the Secretary declines to enter into a self-determination contract . . . ," the Secretary "shall provide the tribal organization with a hearing on the record . . . under such rules and regulations as the Secretary may promulgate . . . ." Section 900.150 of 25 C.F.R. provides in relevant part that an Indian tribe or tribal organization can appeal:

(a) A decision to decline to award a self-determination contract, or a portion thereof, under section 102 of the Act;

* * * * *

(c) A decision to decline a proposed amendment to a self-determination contract, or a portion thereof, under section 102 of the Act[.]

It is undisputed that WIHCC was awarded a self-determination contract at the end of FY 2002. Thus, the salient issue here is whether the proposed Buyback Agreement constitutes a proposed amendment to a self-determination contract within the meaning of these statutory and regulatory provisions.

There is no doubt that on its face the proposed Buyback Agreement purports to be an amendment to a self-determination contract and therefore fits the jurisdictional requirements of the declination procedures. In form, the proposed Buyback Agreement is no different from the FY 2002-2003 Buyback Agreement, which IHS agreed was a part of the self-determination contract. (10) The proposed Buyback Agreement is expressly incorporated by reference into the proposed AFA for FY 2004. Section 5 of the proposed AFA, captioned "Amount of Funds," states in paragraph (A) that "IPA/MOA costs to be paid to NAIHS will be determined, funded, and processed as detailed in the Buyback Agreement between IHS and WIHCC which is attached as Attachment F and is incorporated by reference." In addition, the proposed AFA contains other references to the proposed Buyback Agreement. Section 5(C) provides that "[f]unds will be retained from the funding available to WIHCC to pay for costs associated with services provided by IHS as agreed between the parties and as specified in the Buyback Agreement (Attachment F)." Section 5(G), captioned "Adjustments and Increases," states in pertinent part: "The funding amounts referenced in this AFA and its attachments are subject to change based upon the IHS Fiscal Year 2004 final appropriations, the number of federal employees assigned to WIHCC under IPAs and MOAs, the level of transitional support necessary to carry out the Buyback Agreement . . . ." Finally, section 6, captioned "Programs, Functions, Services, and Activities, Retained by IHS," provides in paragraph (B) that the retained functions and resources "include the administrative support necessary to administer IPAs/MOAs and other services and goods provided under the Buyback Agreement (Attachment F)." IHS Ex. G. WIHCC's self-determination contract dated August 16, 2002 expressly contemplates that an AFA will be part of the contract. See IHS Ex. C, Article VI, Section 2. Thus, as part of the proposed FY 2004 AFA, the proposed Buyback Agreement was clearly intended as an amendment to WIHCC's self-determination contract, which is subject to the declination procedures pursuant to section 900.150.

The same conclusion follows from the application of 25 C.F.R. � 900.32, which provides in pertinent part:

Any portion of an annual funding agreement proposal which is not substantially the same as that which was funded previously (e.g., a redesign proposal; waiver proposal; different proposed funding amount; or different program, service, function, or activity) . . . is subject to the declination criteria and procedures.

As IHS conceded, the proposed FY 2004 AFA is not substantially the same as the prior year's AFA since the proposed Buyback Agreement incorporated by reference in the former AFA provides for pro-rating severance pay and lump-sum leave payments of detailed employees who are subject to a reduction in force whereas WIHCC was responsible for all of these costs under the FY 2002-2003 Buyback Agreement that was incorporated in the FY 2003 AFA. See IHS Reply Br. at 13, n.8.

IHS took the position, however, that the proposed Buyback Agreement could not be considered a proposed amendment to WIHCC's self-determination contract because its subject--the general terms under which federal employees will be detailed to WIHCC to carry out the PFSAs that WIHCC has contracted to perform--is not a mandatory part of a self-determination contract. IHS characterized the mandatory contract terms as specifying only what PFSAs are being contracted and what funding is being provided for those PFSAs. In IHS's view, pursuant to section 108 of the ISDA, other, discretionary terms may be included in a self-determination contract only if agreed to by both parties. Thus, according to IHS, although the FY 2002-2003 Buyback Agreement is part of the self-determination contract, having been agreed to by the parties, the proposed Buyback Agreement for the following fiscal year is not a proposed amendment to a self-determination contract since it contains terms that have not been agreed to by the parties.

I conclude that this position lacks merit. While section 108 of the ISDA requires that both a self-determination contract and an AFA contain certain provisions, nothing in the ISDA indicates that only proposals addressing those provisions are subject to the declination procedures. (11) Clearly, provisions not required by section 108 may nevertheless further significant objectives of the ISDA and have a demonstrable impact on the success of the self-determination undertaking. Indeed, to the extent that such provisions relate to the "planning, conduct and administration" of PFSAs transferred to a tribal organization, they fall within the statutory definition of a self-determination contract.

Moreover, the regulations implementing the ISDA make no distinction between mandatory and discretionary contract provisions (much less provide guidance on how to apply such a distinction in determining entitlement to a declination appeal). Rather, as discussed above, the regulations fully support WIHCC's position that the declination procedures apply here because IHS has made "[a] decision to decline a proposed amendment to a self-determination contract, or a portion thereof" (section 900.150) and has declined a portion of a "proposed successor annual funding agreement" that is "not substantially the same as that which was funded previously" (section 900.32). In addition, as discussed later, the fact that the proposed Buyback Agreement pertains to matters addressed by the declination criteria is a clear indication that the declination procedures are applicable.

In any event, even if sections 900.150 and 900.32 apply only to contract and AFA provisions mandated by section 108 of the ISDA, the proposed Buyback Agreement can be viewed as containing such provisions under the implementing regulations. IHS is correct that section 104 of the ISDA authorizes, but does not require, IHS to detail federal employees to a tribal organization to carry out the PFSAs that a tribe has contracted to provide. Section 900.8(k) of 25 C.F.R. nevertheless requires that an initial contract proposal contain specific information, including "[t]he extent of any planned use of Federal personnel and Federal resources." This requires information about any plans a tribal organization may have to use federal employees to carry out PFSAs. (12) The proposed Buyback Agreement falls within the scope of this requirement since it sets out the general terms for details of federal employees to WIHCC for that purpose. (13) Although the proposed Buyback Agreement does not specify any PFSAs or the amounts necessary to carry them out, the agreement has a direct bearing on the amount available to WIHCC to carry out the PFSAs for which it contracted. (14) (15) Thus, the proposed Buyback Agreement is reasonably considered a proposal to amend a mandatory contract term, which IHS concedes is subject to the declination procedures.

As IHS noted, if the proposed Buyback Agreement is subject to the declination procedures, a decision that the declination was not justified would mean that the terms of WIHCC's choosing specified in that proposal would apply to details of federal employees during FY 2004. (16) Since the statute and regulations specifically contemplate the use of details, it is entirely appropriate to require IHS to approve a proposal for the terms of those details unless one or more of the declination criteria apply. This result is not inconsistent with section 104 of the ISDA since nothing in the proposed Buyback Agreement requires IHS to detail any particular employee, to approve a detail for a particular purpose, or even to approve any details at all.

Moreover, contrary to what IHS suggested, it is not merely coincidental that its refusal to enter into the proposed Buyback Agreement raises an issue which is a potential basis for declination under the statute and regulations. While the five reasons for declining a self-determination contract or contract amendment are not jurisdictional requirements by name, they identify the only circumstances in which a declination is justified and as such identify the nature and scope of the type of dispute covered by the declination process. In a January 7, 2004 letter to WIHCC, IHS stated:

[T]o the extent that WIHCC's October 9, 2003 proposal for a Buyback Agreement requires the IHS to pay for severance pay and lump sum annual leave costs associated with staff assigned to WIHCC under the Agreement, the proposed project or function cannot be properly completed or maintained and the amount of funds proposed for the contracted PFSAs is in excess of the applicable funding level for such PFSAs. See ISDA section 102(a)(2)(C) & (D), 25 U.S.C. � 450f(a)(2)(C) & (D).

WIHCC Notice of Appeal filed with the IBIA 2/5/04, Ex. A. IHS's determination that the proposed Buyback Agreement could be declined for two of the reasons specified in the statute is a further indication that the declination procedures are applicable here.

Indeed, IHS admitted that its refusal to enter the proposed Buyback Agreement would have been subject to the declination procedures if WIHCC had simply followed a different approach in seeking to shift the responsibility for some of the severance costs and lump-sum leave payments to IHS. As indicated above, the proposed Buyback Agreement states, as an alternative to the pro-rating of these costs, that "a greater portion of such costs [be] made available to WIHCC from IHS through contract support or other funds . . . ." IHS stated that, in light of this language, if WIHCC had submitted a proposal to increase contract support costs or funding under section 106(a)(1) of the ISDA by a specific amount for this purpose, that proposal would have been subject to the declination procedures. Tape of 6/18/04 oral argument (sides 2 and 3). Thus, the substance of the proposed Buyback Agreement clearly involves issues which IHS indicated are covered by these procedures.

Furthermore, the Internal Agency Procedures Handbook supports the conclusion that the declination procedures apply here. Chapter 23 of the Handbook, titled "Indian Health Service Buyback Procedures," states in pertinent part:

Upon the request of a [tribe or tribal organization], the IHS shall negotiate the terms for the buyback of a PFSA authorized pursuant to a previously negotiated contract and AFA under the ISDA. When the request is submitted as an amendment to the contract or AFA, it should be treated as a request to modify the contract and the 90-day time period shall apply . . . .

IHS Ex. Q. IHS pointed out that the proposed Buyback Agreement "did not propose to amend [WIHCC's] scope of work to 'buy back' a PFSA from the IHS," which IHS contended is the situation addressed by Chapter 23. IHS Br. dated 6/2/04, at 29-30. However, the details contemplated by the proposed Buyback Agreement would have a similar result in that federal employees would continue to provide the same services that they performed before WIHCC entered into the self-determination contract. Since IHS approved the same type of agreement for FY 2002-2003 without objecting to the fact that it was labeled a "Buyback Agreement," it is reasonable to infer that IHS intended that this type of agreement would be subject to the declination procedures. Moreover, IHS conceded that Chapter 23 of the Handbook and Chapter 19 of the Handbook, which is titled "Intergovernmental Personnel Act Assignments and Memoranda of Agreement" and contains no mention of appeal rights, are not necessarily mutually exclusive. Tape of 6/18/04 oral argument (side 2).

Finally, I note that 25 C.F.R. � 900.3(b)(11) provides that it is "Secretarial policy" that--

these regulations be liberally construed for the benefit of Indian tribes and tribal organizations to effectuate the strong Federal policy of self-determination, and further, that any ambiguities here be construed in favor of the Indian tribe or tribal organization so as to facilitate and enable the transfer of programs, functions, and activities, or portions thereof, authorized by the Act.

Thus, to the extent that there is more than one reasonable interpretation of the regulations, they should be read to afford WIHCC the right to a hearing.

Conclusion

For the foregoing reasons, I uphold the ALJ's conclusion that IHS's determination not to enter into the proposed Buyback Agreement was appealable. Accordingly, I remand the case to the ALJ for further proceedings.

JUDGE
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Donald F. Garrett, Board Member
Departmental Appeals Board

FOOTNOTES
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1. As explained in the ALJ's Recommended Decision, WIHCC filed two separate hearing requests in the same matter. The first request alleged that IHS had not issued the requisite declination letter. IHS subsequently issued a letter which it said would serve as a declination in the event it were determined that a declination was required. WIHCC filed a second hearing request after receipt of this letter.

The Recommended Decision also denied WIHCC's motion for summary judgment, which asserted that IHS did not comply with the requirement to approve or decline a proposed self-determination contract within 90 days.

2. During the oral argument, WIHCC objected to the admission of Exhibit A to IHS's reply brief dated 6/17/04 on the ground that it is not appropriate to add to the record at this stage of the appeal. Tape of 6/18/04 oral argument (side 1). The exhibit is captioned "Declaration of Charles O. Dowell Under Penalty of Perjury" and asserts that "[a]s of September 25, 2003, WIHCC and NAIHS had reached an agreement on language for Attachment A to the AFA, the Scope of Work for FY 2004, which incorporated minor changes from the Scope of Work for the FY 2003 AFA." The exhibit includes as Exhibit 1 a document captioned "Attachment A to 2004 AFA/Winslow Indian Health Care Center, Inc./Scope of Work." (By letter dated 6/18/04, IHS substituted a new Exhibit 1 for the attachment originally submitted, stating that there had been some confusion about what Mr. Dowell intended as the exhibit.)

I conclude that the exhibit is properly considered part of the record in this case. WIHCC did not cite any authority which precludes the admission of exhibits at this juncture. Moreover, WIHCC is not prejudiced by the admission of this exhibit since 1) the declaration appears to repeat an assertion in Mr. Dowell's earlier declaration dated 2/6/04 (IHS Ex. F), to which WIHCC did not object, and 2) I do not rely on the declaration (or the attachment) as a basis for my decision.

3. The term "self-determination contract" is defined in section 4 of the Indian Self Determination and Education Assistance Act, of which the ISDA is Title I, as "a contract . . . entered into under this subchapter between a tribal organization and the appropriate Secretary for the planning, conduct and administation of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law . . . ." 25 C.F.R. � 450b(j).

4. Section 900.6 defines the term "Annual funding agreement" as "a document that represents the negotiated agreement of the Secretary to fund, on an annual basis, the programs, services, activities and functions transferred to an Indian tribe or tribal organization under the Act."

5. Neither party disputed the effective date identified by the ALJ. However, the contract is dated August 16, 2002, and states that it shall become effective upon signature by both parties. IHS Ex. C. The FY 2002 AFA, also dated September 16, 2002, provided for a start date of September 1, 2002 for all programs, functions, services and activities (PFSAs) except one, for which the start date was the date the AFA was signed. Appellant's Response to Appellee's Motion to Dismiss, Ex. A.

6. For convenience, I cite to the exhibits submitted with IHS's appeal dated 6/2/04 although the same documents are part of the record for the ALJ's Recommended Decision.

7. This provision includes the language of amendments to the Public Health Service Act and the Intergovernmental Personnel Act of 1970 that permit the assignment of federal personnel to Indian tribes or tribal organizations to carry out the provisions of contracts under the ISDA.

8. Section 108(a) of the ISDA similarly states:

Each self-determination contract entered into under this Act shall-

(1) contain, or incorporate by reference, the provisions of the model agreement described in subsection (c) (with modifications where indicated and the blanks appropriately filled in), and

(2) contain such other provisions as are agreed to by the parties.

9. Although particular arguments may not be mentioned in this summary or specifically addressed in my decision, I have nevertheless considered all of the points made by IHS in reaching the conclusions set forth here.

10. In its appeal from the ALJ's Recommended Decision, IHS stated that it "agrees that the Buyback Agreement was part of the overall agreement between the parties in fiscal years 2002 and 2003." IHS Br. dated 6/2/04, at 25.

11. IHS pointed to numerous provisions of the ISDA making the declination procedures applicable to proposals other than proposals for a self-determination contract or contract amendment. IHS Br. dated 6/2/04, at 19, citing ISDA sections 105(j), 105(m), 107(e), and 109. However, the existence of these provisions has no bearing on whether WIHCC's proposed Buyback Agreement constitutes a proposal to amend a self-determination contract, which IHS concedes is appealable.

12. The regulations also require the proposal to include "[a]n identification of any . . . programs, functions, services, or activities to be contracted, including administrative functions." 25 C.F.R. � 900.8(g)(3). To the extent that an agreement to detail a federal employee to a tribal organization can be considered a contract, this provision would also require information about such details.

13. Section 1 of the proposed Buyback Agreement states that "WIHCC wishes to utilize federal personnel in providing services under its 2004 AFA in accord with the terms of the Contract, 2004 AFA, individual IPA and MOA agreements among the parties, and this Buyback Agreement." IHS Ex. H.

14. Moreover, contrary to what IHS argued, the proposed Buyback Agreement is not comparable to a subcontract with an outside party to carry out a PFSA since the parties to the proposed Buyback Agreement are the same as the parties to the self-determination contract and since the use of federal personnel to carry out PFSAs is specifically addressed in the ISDA and the implementing regulations.

15. I do not reach any conclusion about whether the provisions of the proposed Buyback Agreement that are at issue here would be properly declined under section 102(a)(2)(D) of the ISDA, however.

16. IHS agreed to detail at least two federal employees to WIHCC during FY 2004. See Appellant's Response to Appellee's Motion to Dismiss, Ex. B.

CASE | DECISION | ANALYSIS | JUDGE | FOOTNOTES