STATEMENT OF HON. JOHN R. OTTINA, ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, ACCOMPANIED BY BERNARD FEINER, ASSISTANT GENERAL COUNSEL, BUSINESS AND ADMINISTRATIVE LAW DIVISION; SIDNEY EDELMAN, ASSISTANT GENERAL COUNSEL, PUBLIC HEALTH DIVISION; AND DR. EMERY JOHNSON, DIRECTOR, INDIAN HEALTH SERVICE, HEALTH SERVICES ADMINISTRATION

Secretary OTTINA. Good morning.

Senator BARTLETT. Your statement in full can be placed in the record and you may summarize or highlight, whichever you desire.

Secretary OTTINA. With the chairman's permission, I would like the entire statement to be entered in the record, and I would like to highlight portions of it.

Senator BARTLETT. That will be fine.

Secretary OTTINA. Mr. Chairman and members of the subcommittee, I am pleased to appear before you in conjunction with Public Law 93-638, the Indian Self-Determination and Education Assistance Act, and to inform you of the progress we have made in preparing to implement the act. While much has been accomplished, we have also gained much in the way of experience, particularly in reviewing the comments we have received in response to our proposed regulations and reviewing the testimony presented to this subcommittee last week. Thus, at the outset I want you to know that even as we prepare to issue regulations within the time frame prescribed in the act, we plan to undertake a major revision in format. Before I discuss that endeavor, I believe it would be appropriate to highlight the steps that we have already taken.

In the true spirit of self-determination, we have taken extraordinary measure to seek and include the recommendations of the Indian people in the drafting of the rules and regulations needed to implement this

act.

We have held numerous joint meetings with the Bureau of Indian Affairs and the Civil Service Commission regarding similar obligations under the act, recognizing the need for a set of regulations that would be as similar and as applicable as possible to both IHS and BIA.

Strategy meetings were held in early January and February resulting in a plan for conducting extensive field orientations and working consultations with the tribes.

An initial draft of implementation regulations was drawn up and sent to the tribes and field offices for review. During March and April, IHS and BIA sent teams to 15 strategic locations to discuss the draft regulations with Indian leaders and people and record their recommendations. Workshops and task forces were then set up to incorporate both the input from the tribes into a working set of draft regulations and to develop issue or position papers outlining areas of potential conflict in order to avoid or diminish such conflict.

A second set of draft regulations was then sent out to the field and in late May and June the IHS and the BIA teams again set forth to meet with the Indian people. To preserve continuity, the meetings were held,

whenever possible, in the same place with the same teams making the presentations.

The resulting input received from the tribes and field offices was again reviewed and incorporated into a final set of draft regulations which were submitted to the appropriate congressional committees on August 4.

An advance notice of proposed rulemaking was published in the Federal Register on August 14, to give the Indian people yet another opportunity to review the proposed regulations, and the notice of proposed rulemaking was published on September 15.

Each publication of the proposed regulations in the Federal Register appeared as a separate section. We obtained 1,000 extra copies of the advance notice and 2,000 copies of the notice of proposed rules.

Copies of these publication were mailed directly to the president or chairman of the National Indian Health Board, the National Tribal Chairmen's Association, the National Congress of American Indians, and a supply was sent to the executive director of each association for their distribution to the members of their executive committees.

In addition, copies of the advance notice and the notice were mailed to Indian tribal leaders and to tribal health officials. The notice of proposed rulemaking was mailed on September 19, 1975, the day the additional copies were delivered to us by the Government Printing Office.

As you know, the Indian Self-Determination Act is a very unique law which requires the development of an entirely new approach and new methods for carrying out the functions, authorities, and responsibilities of the Secretary of Health, Education, and Welfare in the area of Indian health.

In no other federally administered program of which we are knowledgeable does the prospective contractor have an apparent right to contract and, after the contract is awarded, the right to retrocede, thus requiring the Government to reassume the functions encompassed by the contract.

Therefore, in addition to establishing a major change in the Federal Indian policies, the act requires the development of a completely new aspect of the Government's procurement policies, procedures, and methodologies.

The act permits the award of grants to Indian tribes and tribal organizations for the purpose of constructing adequate health facilities. The issue here is who has title to the completed facility.

Historically, Federal grants-in-aid have been awarded to State and local units of government or private nonprofit organizations to carry out functions inherent to their responsibilities. Whenever grants were awarded for the construction of a facility, the title of the facility and the land had to be in the name of the grantee. In addition, construction grant awards are frequently conditioned on the future use of the facility for the purpose for which the grant was awarded.

Public Law 93-638 is silent on this issue and the legislative history of the pertinent section, section 104 (b) (1), does not address this issue. With respect to existing Federal facilities, section 106 (e) indicates that such facilities may be used by the contractors or grantees in carrying out the purpose of the contracts or grants. It seems clear that the intent of this section is not to transfer title of facilities and property to contractors and grantees but to permit their use of existing Government facilities.

This issue of who retains title takes on added significance with the right of the contractors to retrocede the functions, responsibilities and duties back to the Government.

The General Counsel's office is researching this and a number of similar issues. Our plan is to move expeditiously in the resolution of these issues so that unnecessary limits are not imposed on the implementation of the act.

Also, because of the previously mentioned unique character of this act, we may encounter additional issues that are not now anticipated but which will require resolution so that the Indian people and the Government can proceed with the prudent implementation of the act. We have reviewed the analysis of the proposed BIA and HEW regulations implementing this act. It was prepared by the American Law Division of the Library of Congress. The analysis mentions several substantive matters which are among those under study. One of these is a deficiency in contract rescission regulations regarding rescission for violation of rights or gross negligence or mismanagement. We felt that the technical assistance provided under section 36.232 would be applicable. However, we agree that the availability of technical services should have been specifically cited and we are making that correction.

Another area discussed in the analysis is the procedures for contract change. Section 106 (d) of the act calls for consent by the tribal contractors to IHS initiated changes, but clause 13 contains no such provision. Our approach was that adequate protection was built in for both parties, but this was not clear. Therefore, clause 13 is being revised to clarify the protections for both parties.

A third issue is a requirement in the grant regulations that the legally established organizations of Indians be nonprofit (section 36.102 (d)), whereas the contract regulations (section 36.204 (i)) do not require this. It is our intention to amend the regulation to make grants awardable to any tribe or tribal organization regardless of whether it is a profitmaking entity.

This brings me to an issue that has been raised not just in the analysis, but in the public comments we have received and in the testimony before you. While there has been a significant amount of cooperation between our staff and that of the Bureau of Indian Affairs of the Department of the Interior, the regulations issued by our respective Departments are not sufficiently similar. To be frank, this has resulted simply from different draftsmen working within different organizations, each striving to produce an end-product in keeping with their customary standards. We now realize that what is needed above all is uniformity wherever possible, that is, in every situation where programmatic differences do not require that distinctions be made.

This need for uniform language and organization is of great importance because the Indian tribes seeking to benefit from the act should not be burdened with the problem of reading different texts to derive basically the same information about closely related problems, nor should they have to trace cross-referenced material where this could be avoided.

Thus, we intend to overcome these obstacles as soon as possible, and we have asked the Bureau of Indian Affairs to cooperate with us in this endeavor.

Mr. Chairman, this concludes my remarks this morning. My colleagues and I will be pleased to try to answer any questions which you or other members of the subcommittee may have.

Senator BARTLETT. Secretary Ottina, if you will retire temporarily, we will have Commissioner Morris Thompson present his testimony and we will then call you back after his testimony. Thank you. [The prepared statement of Secretary Ottina follows:]

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