
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 25USC458aaa-6]

 
                            TITLE 25--INDIANS
 
                        CHAPTER 14--MISCELLANEOUS
 
    SUBCHAPTER II--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE
 
          Part E--Tribal Self-Governance--Indian Health Service
 
Sec. 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.

(Pub. L. 93-638, title V, Sec. 507, as added Pub. L. 106-260, Sec. 4, 
Aug. 18, 2000, 114 Stat. 719.)

                       References in Text

    Section 3 of the Tribal Self-Governance Amendments of 2000, referred 
to in subsec. (e), is section 3 of Pub. L. 106-260, which is set out as 
a note under section 458aaa of this title.
