Chapter 26 - Conferring with Urban Indian Organizations

5-26.1  INTRODUCTION

1. Purpose.  Congress has specifically declared that it is the policy of the Nation "to ensure the highest possible health status for Indians and urban Indians."  25 United States Code (U.S.C.) § 1602(1).  The U. S. Department of Health and Human Services (HHS) is committed to working with Indian and urban Indian communities to meet this policy.  This policy applies to the Indian Health Service (IHS).

   This policy establishes the IHS policy and procedures for conferring with urban Indian organizations (UIOs). The IHS will use this conferring policy to ensure that the health care needs of the urban Indian population are considered at the local, Area, and national levels when implementing and carrying out the Indian Health Care Improvement Act (IHCIA or Act).

2. Background.  UIOs are a major provider of health care to urban American Indians and Alaska Natives (AI/ANs) across the country. When the IHCIA was enacted into law in 1976, it identified the authorities, responsibilities, and functions of the IHS, the primary Federal agency with responsibility for providing health care to American Indians and Alaska Natives. The IHCIA included the authority for the IHS to “establish programs in urban centers to make health services more accessible to urban Indians” [Indian Health Care Improvement Act, Title V, section 501, Public Law No. (Pub. L. No.) 94-437, 90 Statute (Stat.) 1400, 1410 (1976), codified at 25 U.S.C. § 1651]. The IHS carries out this authority through contracts and grants to UIOs. In March 2010, as part of the Affordable Care Act, Congress reauthorized and amended the IHCIA. The reauthorization of the IHCIA included a requirement that the IHS “confer” to the maximum extent practicable, with UIOs in carrying out the IHCIA.
3. Policy.  It is IHS policy to confer with UIOs to the maximum extent practicable whenever a critical event or issue, as defined in this policy, arises in implementing or carrying out the IHCIA.
4. Requirement.  The IHCIA, as amended, includes four provisions that require the IHS to confer with UIOs.
   1. Indian Health Care Improvement Act, 25 U.S.C. § 1660d(b). “The Secretary shall ensure that the Service confers, to the maximum extent practicable, with urban Indian organizations in carrying out this [Act].”
   2. Indian Health Care Improvement Act, 25 U.S.C. § 1602(5). “Congress declares . . . that all actions under this [Act] shall be carried out with . . . conference with urban Indian organizations, to implement this [Act] . . .”
   3. Indian Health Care Improvement Act, 25 U.S.C. § 1631(f). “The Secretary shall . . . confer with urban Indian organizations, in developing innovative approaches to address all or part of the total unmet need for construction of health facilities . . .”
   4. Indian Health Care Improvement Act, 25 U.S.C. § 1665k(a)(2)(A)(vii). “Funding provided pursuant to [25 U.S.C. § 1665k “fetal alcohol spectrum disorders programs”] shall be used . . . [t]o develop and implement . . . in conference with urban Indian organizations, culturally sensitive assessment and diagnostic tools, including dysmorphology clinics and multidisciplinary fetal alcohol spectrum disorders clinics for use in Indian communities and urban centers.”
5. Authorities.
   1. Indian Health Care Improvement Act, 25 U.S.C. §§ 1601-1683, as amended, including, §§ 1602(1), 1603(29), 1651, 1653(a), 1660d.
6. Definitions.
   1. Confer.  The term "confer" means to engage in an open and free exchange of information and opinions that:
      1. Leads to mutual understanding and comprehension, and
      2. Emphasizes trust, respect, and shared responsibility. 25 U.S.C. § 1660d(a).
   2. Conferring Activities.  The term “conferring activities” means implementing confer mechanisms, such as face-to-face meetings, teleconferences, virtual platforms and hybrid connectivity options, and mailings to solicit comments and discuss critical events or issues.
   3. Critical Event or Issue.  A “critical event or issue,” as used in this policy, is an event or issue that significantly affects one or more UIOs. Critical events or issues are complex, have significant implications, and are time- sensitive. Examples of critical events or issues include developing program regulations, formulating the budget, allocating new resources, and changing policy, as well as public health or environmental events.
   4. IHS Confer with UIOs Report.  The phrase “IHS Confer with UIOs Report” means an annual report to the Secretary, HHS, describing critical events or issues to UIOs arising in implementing or carrying out the IHCIA.
   5. Rare Instances.  The term “rare instances” means occurrences or situations that are uncommon, unusual, or infrequent, such as pending decisions or outcomes of Tribal advisory committees on critical events, critical events involving multiple interagency programs affecting outcomes, or due to the complex nature of the critical events or issues.
   6. IHS Service Unit.  An IHS Service Unit is an administrative entity operated by the IHS with the responsibilities for planning, managing, and evaluating the IHS program serving a defined geographic area less than that for which an Area Office is responsible. It includes only land within a Health Service Delivery Area.
   7. Urban Indian Organization.  The term "urban Indian organization" means a nonprofit corporate body situated in an urban center, governed by an urban Indian controlled board of directors, and providing for the maximum participation of all interested Indian groups and individuals, which body is capable of legally cooperating with other public and private entities for the purpose of performing the activities described in [25 U.S.C. § 1653(a)]. 25 U.S.C. § 1603(29).

5-26.2  OBJECTIVES

1. To formalize the IHS approach to conferring with UIOs to ensure that urban Indian health priorities and goals are considered.
2. To establish a minimum set of requirements and expectations with respect to conferring for the three levels of IHS management: Headquarters, Area Offices, and IHS Service Units.
3. To identify critical events or issues arising in implementing or carrying out the IHCIA for which conferring with UIOs will be required for the three levels of IHS management: Headquarters, Area Offices, and IHS Service Units.
4. To identify critical events or issues arising in implementing or carrying out the IHCIA where partnerships and the inclusion of UIOs would complement consultation with Tribes.
5. To require conferring with UIOs on proposed, new, and existing health policies and programs that qualify as critical events or issues arising in implementing or carrying out the IHCIA.
6. To promote and develop innovative methods of involving UIOs in IHS policy development and in the decision-making processes of the IHS.
7. To charge and hold responsible all levels of management within the IHS, including Headquarters, Area Offices, and IHS Service Units for implementing this policy.

5-26.3  ROLES

The IHS has the responsibility to engage in an open and free exchange of information and opinions with UIOs that leads to mutual understanding and comprehension and emphasizes trust, respect, and shared responsibility whenever a critical event or issue, as defined in this policy, arises in implementing or carrying out the IHCIA.

1. Headquarters.  The Director, IHS, is responsible for providing overall guidance and direction to the Office of Urban Indian Health Programs (OUIHP) and ensuring that the IHS confers at the local, Area, and national levels to the maximum extent practicable, with UIOs in accordance with this policy.
   1. The Director, OUIHP, is responsible for monitoring compliance with this policy, including submissions to the IHS conferring email address: urbanconfer@ihs.gov
   2. The Director, OUIHP, will ensure that all levels of the IHS conduct official conferring sessions that are publicized through correspondence or, when necessary, Federal Register Notices (FRN) and request conferring reports from Headquarters, Area Offices, and IHS Service Units.
   3. The Director, OUIHP, will receive and acknowledge receipt of written correspondence from UIOs and notify UIOs of the conferring activity to initiate confer within 30 calendar days. The UIOs’ written correspondence should identify critical events or issues arising in implementing or carrying out the IHCIA, the affected UIOs, and the proposed conferring activity for which conferring with UIOs will be recommended to the Director, IHS. After receiving the UIOs’ written correspondence or identifying a critical event or issue by the IHS, all affected UIOs will be notified through a Dear Urban Indian Organization Leader Letter (DUIOLL) and broadcast emails and, if necessary, through FRN. The notice will identify the issue, the conferring method, and the timeline for the conferring activity.
   4. The Director, OUIHP, will notify UIOs within 30 calendar days after all conferring activities have concluded, including live conferring sessions and comment periods. After conferring activities, the IHS will notify all affected UIOs through a DUIOLL and broadcast emails and, if necessary, through FRN, on the outcome of conferring activities and provide additional follow-up on issues or concerns as necessary. In rare instances, a written notification may exceed 30 calendar days.
   5. The Director, OUIHP, is responsible for preparing the annual IHS Confer with UIOs Report for submission to the Secretary, HHS. The report will consist of conferring activities conducted at Headquarters, Area Offices, and IHS Service Units.
   6. The Headquarters Office Directors will identify potential critical events or issues arising in implementing or carrying out the IHCIA for which conferring with UIOs will be recommended to the Director, IHS. Upon identification of a critical event or issue by an Office Director, IHS will notify all affected UIOs through a DUIOLL and broadcast emails and, if necessary, through FRN. The notice will identify the issue, the conferring method, and the timeline for the conferring activity. The Office Director is responsible for ensuring compliance with this policy by conferring with UIOs that are otherwise affected by the critical event or issue.
   7. The Office Director will notify UIOs within 30 calendar days after the completion of all conferring activities. All affected UIOs will be notified through a DUIOLL and broadcast emails and, if necessary, through FRN on the outcome of conferring activities. The Office Director will provide additional follow-up on issues or concerns as deemed necessary after conferring activities and assist the OUIHP in completion of the annual IHS Confer with UIOs Report. In rare instances, written notification may exceed 30 calendar days.
2. Area Offices.  The Area Directors will receive and acknowledge receipt of written correspondence from UIOs in their respective regions and notify UIOs of the conferring activity to initiate confer within 30 calendar days. The UIOs’ written correspondence should identify critical events or issues arising in implementing or carrying out the IHCIA, the affected UIOs, and the proposed conferring activity. After receiving the UIOs’ written correspondence or identifying a critical event or issue by the Area Office, all affected UIOs will be notified through a DUIOLL and broadcast emails. The notice will identify the issue, the conferring method, and the timeline for the conferring activity. The Area Director is responsible for ensuring compliance with this policy by conferring with UIOs that are located in their respective region, if applicable, or with UIOs that are otherwise affected by the critical event or issue.
   1. The Area Director will notify UIOs within 30 calendar days after the completion of conferring activities. All affected UIOs will be notified through a DUIOLL and broadcast emails on the outcome of conferring activities. The Area Director will provide additional follow-up on issues or concerns as necessary and assist the OUIHP in completion of the annual IHS Confer with UIOs Report to ensure inclusion of confers at the Area and IHS Service Unit levels. In rare instances, written notification may exceed 30 calendar days.
      1. IHS Service Units.  The IHS Service Unit Chief Executive Officer (CEO) will receive and acknowledge receipt of written correspondence from UIOs in their respective service delivery area and notify UIOs of the conferring activity to initiate confer within 30 calendar days. The UIOs’ written correspondence should identify critical events or issues arising in implementing or carrying out the IHCIA, the affected UIOs, and the proposed conferring activity. After receiving the UIOs’ written correspondence or identifying a critical event or issue by the CEO, all affected UIOs will be notified through a DUIOLL and broadcast emails. The notice will identify the issue, the method for conferring, and the timeline for the conferring activity. The CEO is responsible for ensuring compliance with this policy by conferring with UIOs located in the IHS Service Unit’s service delivery area, if applicable, or with UIOs that are otherwise affected by the critical event. The CEO should coordinate with the Area Director in carrying out urban confer activities.
         
         The CEO will notify UIOs within 30 calendar days after completing conferring activities. All affected UIOs will be notified through a DUIOLL and broadcast emails on the outcome of conferring activities. The CEO will provide additional follow-up on issues or concerns as necessary and assist the OUIHP in completion of the annual IHS Confer with UIOs Report to ensure the inclusion of confers at the IHS Service Unit level. The CEO shall provide the IHS Service Unit conferring activities and results, or outcomes reports to the Area Director, who will report them to the OUIHP. In rare instances, a written notification may exceed 30 calendar days.

5-26.4  CONFER MANAGEMENT

1. Identification of Critical Event or Issue.  A potential critical event or issue arising in implementing or carrying out the IHCIA may be identified by either UIO(s) and/or the IHS.
   1. An UIO(s) may identify a critical event or issue at the national, Area, or local level. If an UIO(s) identifies a critical event or issue in implementing or carrying out the IHCIA, an UIO(s) must submit written correspondence to the Director, IHS, Area Director, or IHS Service Unit CEO, as appropriate, describing the critical event or issue, the affected UIO(s), and the proposed conferring activity.
   2. The IHS will identify critical events or issues in implementing or carrying out the IHCIA.
2. Initiation of Confer..  Consequent to the identification of a critical event or issue significantly affecting UIO(s), the UIO(s) or IHS, Area Office, or the IHS Service Unit will initiate confer and the conferring activity regarding the critical event or issue.
   1. The IHS will conduct official conferring activities that shall be publicized, through correspondence such as a DUIOLL and broadcast emails and, if necessary, through FRN.
      
      The notices will include information such as the mechanism, dates, and locations of the conferring activity (if applicable), the agenda, and any critical events or issues that will be discussed.
   2. In the event that a conferring activity will be conducted, the degree and extent of the conferring and the mechanism for conferring shall depend upon several factors, including:
      1. the nature of the critical event or issue;
      2. the number of potentially affected UIOs; and
      3. the most cost-effective and efficient conferring mechanism, based on the nature of the critical event or issue and the number of potentially affected UIOs. This includes utilizing virtual platforms and hybrid connectivity options to enhance conferring activities and mechanisms to maximize UIO participation.
3. Conferring Activities.  The IHS will consider the following confer mechanisms as options that provide the opportunity for an open and free exchange of information and opinions that lead to mutual understanding and comprehension and emphasize trust, respect, and shared responsibility:
   1. Mailings
   2. Teleconferences/Webinars
   3. Regular or special program level conferring sessions
   4. Conferences or meetings
   5. Opportunities for comment, including submissions to urbanconfer@ihs.gov
   6. Face-to-face meetings, including meetings conducted at the IHS Service Unit level, Area Office level, or at the national-level Indian health system meetings that include the IHS, Tribes, and UIO(s).
   7. FRN with a request for comment
   8. Virtual platforms and hybrid connectivity options
4. Submission of Comments.  The IHS, Area Office, or IHS Service Unit shall develop instructions for submitting comments on the critical event or issue. A comment period of 60 calendar days from which the DUIOLL is sent will allow UIOs to provide comments and recommendations on the critical event or issue. In rare instances, a comment period of less than 60 calendar days may be initiated for critical events or issues that require expeditious comments and recommendations.
5. Confer Decision.  The IHS, Area Office, or IHS Service Unit will provide official notice of the confer decision within 30 days after the conclusion of conferring activities. In making this determination, the IHS reviews comments and recommendations related to the critical events or issues, and consults with IHS subject matter experts for additional feedback and recommendations.
   
   The Director, IHS, Area Director, or IHS Service Unit CEO makes an informed decision about the critical event or issue and notifies all affected UIOs through correspondence such as a DUIOLL. In rare instances, the notice may exceed 30 calendar days.
6. Unresolved Issues.  The IHS will document and follow-up on any unresolved issue(s) that would benefit from the ongoing involvement of the affected UIO(s) upon the completion of any of the conferring activities in this section. Documentation of the conferring process and outcomes will be maintained by the OUIHP and the Area Office(s) in which the affected UIO(s) are located.
7. Contract- and Grant-Specific Issues.  A UIO may request to meet one-on-one with an IHS representative at the Headquarters, Area Office, or IHS Service Unit level to confer on issues specific to that UIO (e.g., contract and grant awards from the IHS).
8. Level of Satisfaction.  The IHS will administer a confer satisfaction survey after each conferring activity. The surveys will be administered in accordance with the Indian Health Manual, Part 5, Chapter 34 - Information Collection Clearance. The results will be included in the annual IHS Confer with UIOs Report to HHS and a similar report to UIOs. The information will be used to improve the conferring process. Office Directors, Area Directors, and IHS Service Unit CEOs will assist the OUIHP in administering a confer satisfaction survey at the national, Area, and local levels, when necessary, to improve the conferring process at all levels of the IHS.
9. Annual IHS Confer with UIOs Report to HHS.  The IHS shall prepare and submit the annual IHS Confer with UIOs Report to the Secretary, HHS, describing critical events or issues arising in implementing or carrying out the IHCIA, related conferring activities, and the results and outcomes of conferring with UIOs.

   The report shall include a description of each critical event or issue(s) initiating confer, a description of the confer mechanism implemented, a discussion of results, outcomes, or recommendations from the conferring activity, a list of any follow-up items, a timeline for addressing these items, and a discussion of the level of satisfaction with the conferring process. The IHS shall prepare a similar report to UIOs with confer satisfaction survey results excluding contract and grant-specific information.

10. Conflict Resolution.
    1. This policy intends to promote mutual understanding and comprehension and emphasize trust, respect, and shared responsibility between the IHS and UIOs.
    2. However, the IHS and UIOs may not always agree. Where such disagreement occurs, nothing in this policy creates a right of action against the IHS or the HHS for failure to comply with this policy.

5-26.5  FEDERAL ADVISORY COMMITTEE ACT

Conferring activities pursuant to this policy are not intended to include consensus advice to the agency that would trigger the Federal Advisory Committee Act (FACA), 5 U.S.C. App. § 1-16. However, FACA may be implicated by conferring activities. The FACA is implicated when an Agency establishes, manages, or controls a group that includes one or more participants who are not Federal employees to obtain the group’s consensus advice or recommendations on Agency issues or policies. The FACA imposes several procedural requirements on Federal Agencies that convene advisory committees. Although FACA may not apply to groups consisting solely of Tribal Leaders serving on the group in their official capacities, UIOs do not meet the “inter-governmental” exemption requirements. Accordingly, any conferring activities that qualify as an advisory committee under the FACA that is convened for the purpose of developing consensus recommendations will be required to comply with the procedures set out in FACA. For questions regarding the applicability of FACA, please contact the Director, IHS Division of Regulatory Affairs, Office of Management Services.

5-26.6  SUMMARY

This policy considers a wide range of needs and unique characteristics in crafting these guidelines. Therefore, it is important for the IHS urban confer policy to remain dynamic and be responsive to changing circumstances that affect UIOs. It is expected that the confer process may result in the need to update the policy from time to time.

5-26.7  DELIBERATIVE PROCESS PRIVILEGE

Nothing in this policy waives the Government’s deliberative process privilege. Examples of the Government’s deliberative process privilege are as follows:

1. When the Secretary, HHS, is specifically requested by a member or members of Congress to respond to or report on proposed legislation, the development of such responses and related policy is a part of the Executive Branch’s deliberative process privilege and should remain confidential.
2. In specified instances, when Congress requires the HHS to work with UIOs to develop recommendations that may require legislation, such as reports, recommendations, or other products that are developed independent of a Department position, the development is governed by the Office of Management and Budget Circular A-19.