Comments

During the year, USET SPF leadership attends consultations, listening sessions, commission meetings, and various committees to advocate legislation on various issues, subjects, and initiatives.  USET SPF also will comment on notices of proposed rulemaking, legislation, or court cases.  Click on the links below for specific comments you would like to view from USET SPF.

Topic
Title
Consultation – Coronavirus

USET SPF Comments re: NIH Tribal Consultation on COVID-19 Research June 5

SUMMARY: During the consultation, NIH representatives discussed the agency’s desire to fast-track COVID-19 research in Indian Country, which would have major implications for Tribal communities during the COVID-19 pandemic and beyond. As the agency seeks to expedite COVID-19 research, USET SPF remains deeply concerned with the continued lack of NIH policies and procedures in place to protect our data, our communities, and our sovereignty. We underscore that all research, including that related to COVID-19, in Tribal communities and with Native individuals must contain protocols for integrating Tribal consent and oversight, as well as protections for Tribal data ownership and Native participants. Without these protections in place, USET SPF contends that NIH-facilitated or funded research, including on COVID-19, should not occur in our communities or with our people.
On May 21, 2020, NIH issued a Dear Tribal Leader Letter (DTLL) announcing the initiation of Tribal consultation to gather input from Tribal leaders on NIH’s COVID-19 research initiatives, with a digital consultation held on May 28th. The subjects of the consultation include the Rapid Acceleration of Diagnostics (RADx) initiative and a study to identify COVID-19 antibodies in samples previously collected under the All of Us research program. While the nature of the virus is largely unknown, it is evident that COVID-19 has had a disproportionate impact on Tribal Nations across the country, who have been using already limited resources to mitigate the spread and treatment of COVID-19 in our communities. As such, USET SPF recognizes that research is critical in both understanding how the virus causes disease and developing strategies to mitigate illness and death in all communities. However, USET SPF and others in Indian Country are deeply concerned about the premature deployment of these initiatives within Tribal communities as an attempt to respond to the pandemic. Specifically, RADx would not only fast-track the deployment of unvetted COVID-19 laboratory tests in Indian Country, but the proposal itself is coercive and unethical in nature as it promotes access to COVID-19 testing for Tribal communities within a research project. In addition, we deeply disagree with the proposal to open access to All of Us data prior to the conclusion of the All of Us consultation.
The accelerated deployment of these, and other initiatives proposed by NIH, within Indian Country are premature, disingenuous, ill-advised, and dangerously blur the line between research and ethical practices. While it is critical that we understand how COVID-19 has uniquely affected Indian Country, it is inappropriate to propose NIH research in our communities in the absence of policies that honor, protect and uphold Tribal sovereignty. Until these policies are in place, USET SPF cannot support NIH’s proposals for COVID-19 research.

Funding – Coronavirus

USET SPF Comments re: Provider Relief Fund May 8

SUMMARY: These funding authorizations were secured by Congress in order to provide broad relief to the American healthcare system, including the Indian Healthcare System, which has been facing deep economic impacts due to both losses in revenue and additional expenses associated with caring for COVID-19 patients. While Indian Country welcomes the $400 million Tribal set-aside within the relief fund, this amount is far from adequate in covering the revenue shortfalls that Tribal Nations are facing. In spite of this, as well as assurances of Tribal provider eligibility, it appears that Tribal Nations were not meaningfully included in any of the other distributions from the PRF thus far. This is unacceptable, and IHS and HRSA must work to ensure that the Indian Health System has substantially increased access to current and future distributions under the PRF.
Decades of neglect, underfunding, and inaction on behalf of the federal government have left Indian Country severely under-resourced and at extreme risk during this COVID-19 crisis. Our existing systems of service delivery and infrastructure, including our health care delivery systems, are experiencing greater stress than those of other units of government, as we seek to maintain essential services and deliver upon our commitments, as well as dedicate resources to the unique circumstances of COVID-19 response. While the crisis is impacting all health care providers, Tribal Nations are the only providers to which the federal government has a trust obligation. With this in mind, Tribal Nations must have substantially greater access to relief under the PRF. As always, USET SPF stands ready to assist IHS and HRSA in ensuring that the Indian Healthcare System is meaningfully included in all funding disbursements.

Funding – Coronavirus

USET SPF Comments on the Implementation of Section 1102 of the CARES Act–The Paycheck Protection Program April 17

SUMMARY: USET SPF urges SBA to ensure that Indian Country has broad, flexible access to relief under the PPP, as intended by Congress, so that we may continue to support our employees and local economies during this time of great uncertainty.
The purpose of the PPP, and all of Title I of the CARES Act, is to provide certainty and support to workers during the COVID-19 emergency. As businesses of all sizes and industries are forced to temporarily close their doors or otherwise experience steep reductions in revenue, it is critically important that employees be offered the stability of continued pay and/or economic relief. In establishing the PPP, Congress sought to ensure that small businesses of all types had access to forgivable loans to maintain payroll. In acknowledgement of the role that our businesses play in supporting economies across the country and the federal trust obligation, Congress explicitly included Tribal Business Concerns (TBCs), without regard for industry, as eligible for these loans.
As SBA and Treasury seek to implement the PPP in fulfillment of Congressional intent and the spirit of the law, TBCs must be meaningfully and broadly included. This involves removing all arbitrary barriers to access that have been imposed during interim rulemaking. These barriers serve no valid purpose. Rather, they unfairly disadvantage Tribal Nations and our employees during a time of economic crisis. To continue to apply the PPP in this way represents a failure to uphold obligations to Tribal Nations, as well as American wage earners. USET SPF urges that these barriers be removed immediately.

Funding – Coronavirus

USET SPF Comments on Distribution of CARES Act Title V Tribal Set Aside April 8

SUMMARY: The Coronavirus Relief Fund was established to provide relief to all units of government across the United States, including Tribal governments, as they seek to respond to the current public health crisis. In administering and distributing the $8 billion set aside for Tribal governments, we urge you to ensure there is both equity and flexibility as the funds are dispersed. Because we are making the reasonable assumption that all Tribal Nations will face financial impacts as a result of the COVID-19 pandemic, this process must be inclusive of all Tribal Nations and reflect the great diversity found across Indian Country.
If distributed fairly, the funding available under Title V of the CARES Act will be a critical source of relief for all federally-recognized Tribal Nations. Like other units of government, Tribal Nations are responsible for the provision of governmental services to our citizens (and oftentimes, the surrounding community), including public safety and justice, emergency management, health, housing, education, and social services. Unlike other units of government, Tribal Nations lack access to many resources that the U.S. family of government enjoys, including certain funds, supplies, and infrastructure, capital and tax revenue, many direct federal programs, housing, and others, despite federal trust and treaty obligations. Decades of neglect, underfunding, and inaction on behalf of the federal government have left Indian Country severely under-resourced and at extreme risk during this COVID-19 crisis. Our existing systems of service delivery and infrastructure are likely to experience greater stress than those of other units of government, as we seek to maintain essential services and deliver upon our commitments, as well as dedicate resources to the unique circumstances of COVID-19 response.
In providing a set aside for Tribal Nations, the law recognizes that Tribal government revenue has been significantly diminished and that there will be unanticipated expenses that Tribal Nations will experience while working to manage the impacts of this crisis. In addition, by clearly including Tribally-owned entities, the CARES Act acknowledges the role that economic entities play in supporting governmental purposes. It is critical, then, that the funding distribution methodology and allowable expenses reflect this reality, and not rely on an oversimplified process that does not reflect the intent of the law. With this in mind, USET SPF provides the attached recommendations in order to ensure relief reaches all Tribal Nations and is flexible enough to ensure Tribal governments are able to determine its best use.
USET SPF urges the equitable and expeditious disbursement of the Tribal set aside in keeping with Tribal sovereignty, the diversity of Indian Country, and Congressional intent. These funds will do more than provide critical resources and certainty to Tribal governments during this unprecedented crisis; they will also be a vital part of ensuring a comprehensive, all-of-government response to COVID-19. An incomplete response will be detrimental to Indian Country and the nation as a whole.

April 22 Follow Up: RE: USET SPF Comments on Distribution of CARES Act Title V Tribal Set Aside FOLLOW UP: Treasury Guidance 

Housing

USET SPF Comments re: HUD Two-Year Notices of Funding Availability for ONAP Competitive Programs March 13

SUMMARY: According to HUD, ONAP is moving to a new funding cycle which would “encourage long-term planning,” “further support the development of larger projects,” and would relieve the workload of Tribal applicants who may have limited resources for submitting grant applications. USET SPF underscores that changes in funding cycles and awards would have an impact on the amount and timeliness of resources available to Tribal housing programs.  We further note that these changes were made without Tribal consultation and that the agency is seeking input after implementation during recent funding cycles.
As an agency of the federal government, HUD has treaty and trust obligations to Tribal Nations, which include ensuring equitable access to funding intended to support housing and other infrastructure within our communities. While we appreciate HUD’s interest in alleviating Tribal Nation workloads as we seek ONAP program grants, USET SPF underscores that extending the funding cycle to two years could hinder current processes, as well as the award and distribution of funds for successful proposals. We strongly recommend HUD work closely with Tribal Nations through meaningful and ongoing consultation to determine appropriate funding mechanisms. We urge that any changes avoid arbitrary caps or funding limits, and  reflect the diversity of government structures, priorities, and planning across Indian Country. USET SPF looks forward to our continued work with HUD on this and other issues facing Indian Country.
National Environmental Policy Act

USET SPF Comments on Proposed NEPA Revisions March 10

SUMMARY: While USET SPF is pleased to see that the NPRM endeavors to be more inclusive of Tribal Nations and our areas of concern, we remain concerned about other proposed revisions that will affect Tribal Nations, our communities, and our cultural resources. In addition, we note the complete lack of Tribal consultation on the proposed update. The proposed update is touted as the most significant update to NEPA since 1978. With this in mind and in accordance with federal trust and treaty obligations, the promulgation of the proposed rule should be executed in a manner that ensures the opportunity for meaningful consultation with all 574 federally recognized Tribal Nations.
As an agency of the federal government, it is incumbent upon CEQ to ensure all regulatory actions are reflective of the federal trust and treaty obligations. CEQ must conduct a meaningful consultation process with Tribal Nations and comply with the fundamental principles articulated in E.O. 13175. To that end, we request an extension of the comment period for an additional 60-day comment period.
Economic Sovereignty

USET SPF Comments on OCC Proposed Rule Modernizing the  Community Reinvestment Act March 9

SUMMARY: The proposed regulations provide financial institutions with clarity as to the types of activities that count for CRA credit and how those activities will be measured. We are especially supportive of the express inclusion of Indian Country after decades of uncertain standing.
Economic sovereignty is essential to Indian Country’s ability to be self-determining and self-sufficient. Rebuilding our Tribal Nations includes rebuilding our Tribal economies as a core foundation of healthy and productive communities. USET SPF has identified and seeks action on number of barriers to economic development in Indian Country, including access to capital, lack of parity in the tax code, and the indeterminate status of trust lands. Limited access to capital often serves as our greatest challenge and interferes with our ability to pursue economic development opportunities.
The NPRM clarifies qualifying activities, develops a transparent formula for determine CRA compliance, and gives banks the clarity they need to understand their CRA status. By including the prominent role that technology will have in the banking sector, the proposal is forward looking. We are pleased the proposed regulations are inclusive and urge that these provisions remain in the Final Rule.  USET SPF strongly supports CRA modernization efforts that seek to drive more capital toward Tribal Nations and our communities, so that we so that we may achieve our own revenue generating potential.

Health / CMS Scope of Practice USET SPF Comments to CMS – Scope of Practice Medicare regulations January 17

SUMMARY: USET SPF provides comment to the Centers for Medicare and Medicaid Services (CMS) on the agency’s request for input and recommendations regarding the elimination of specific stringent Scope of Practice Medicare regulations, including supervision and licensure requirements. According to CMS, the agency is seeking feedback on part of President Trump’s Executive Order (EO) #13890, “Protecting and Improving Medicare for Our Nation’s Seniors.” The EO directs HHS to propose regulations that would eliminate a number of burdensome regulatory requirements of the Medicare program. As CMS considers the elimination of burdensome regulatory requirements, it must, in consultation with Tribal Nations, work to identify those that act as barriers to the exercise of Tribal sovereignty and the execution of the federal trust responsibility and obligations. This includes the requirement for physician supervision of mid-level practitioners.
Despite the critical role that 3rd party billing has in the Indian Healthcare System, Tribal health programs must meet stringent requirements under 42 CFR part 405, subpart X, and 42 CFR part 491 in order to bill Medicare under current regulations as a Federally Qualified Health Center (FQHC). These regulations mandate that services rendered by Tribal health programs as an FQHC must be provided under the supervision of a physician.
In order to meet these statutory requirements, some of our member Tribal Nations have turned to contracting the services of locum tenens, or temporary physicians. While locum tenens serve a valuable purpose in covering gaps in patient care during short-term and usual circumstances, Tribal Nations have been faced with contracting locum tenens as a long-term and expensive solution due to lack of available options. This requirement has placed an unfunded mandate on Tribal Nations by requiring Tribal health programs to use limited resources to essentially pay to bill Medicare; a violation of the trust obligation.
While USET SPF appreciates CMS’s efforts to reduce regulatory burdens within Medicare, the agency must ensure these efforts include Tribal Nations and the Indian Health System as full partners. This includes removing barriers to accessing the resources and health care to which we are entitled.  As always, USET SPF stands ready to assist CMS in endeavors that would improve the agency’s delivery of its trust responsibility and obligations.

Health / Data Management & Sharing

USET SPF Comments to NIH_Draft Policy for Data Management and Sharing and Supplemental Guidance

SUMMARY: USET SPF recognizes that sharing data among the scientific community is imperative for scientific discovery and advancement. However, as NIH advances its policy regarding data management and sharing, the agency must recognize the historical relationship between scientific study and Tribal Nations, where researchers committed ethical violations against our communities and our people. We underscore that NIH must seek to prevent these violations from ever occurring again by ensuring all NIH policies are reflective of the federal government’s obligation to honor, protect and uphold Tribal sovereignty by requiring explicit consent from Tribal Nations.
Native people and Tribal communities continue to face negative impacts from previously unauthorized and unpermitted use of genomic data without Tribal Nation informed consent (Arizona Board of Regents v. Havasupai Tribe). Despite Tribal efforts to require informed consent regarding the use of Tribal data, NIH has continued to advance certain initiatives, including a Tribal Consultation Policy, without engaging in meaningful consultation with Tribal Nations. In August 2018, USET SPF provided comments to NIH regarding the agency’s inadequate Tribal consultation on three initiatives, including proposed provisions for the Draft NIH Data Management and Sharing Policy. In our comments, we note NIH’s ineffective and insufficient consultation practices with Tribal Nations which are in violation of the U.S. Department of Health and Human Services (HHS) Tribal Consultation Policy. While we recognize some improvement with the addition of clear deadlines and a request for broader guidance on research with our population, we remain focused on the results of these efforts. As stated in past communications, we expect NIH to engage in consultation with Tribal Nations in a transparent and meaningful manner to resolve outstanding concerns from Indian Country to ensure sovereignty is upheld and past abuses never happen again. This includes taking active steps to implement the recommendations and guidance of Tribal Nations.
Within the Draft NIH Policy for Data Management, the ‘Effective Date’ seems to include only research to be conducted in the future.  Because of the historical research abuses outlined above, USET SPF believes that ALL projects, current and future, be required to submit a Data Management Plan. There is an opportunity to ensure that data currently being collected and utilized is protected. Under the ‘Compliance and Enforcement’ section, USET SPF insists that an oversight mechanism, specific to Tribal Nation data, designed consultation with Tribal Nations, be included. This mechanism would detail Tribal Nation data protection best practices, procedures, ensure researcher compliance, and recommend consequences for violations.
In addition, No Tribal Nation data should be included in any level of access without explicit Tribal Nation consent. The consent mechanism varies from Tribal Nation to Tribal Nation and may take the form of Tribal Nation Council resolutions, signed memorandums of understanding with a designated Tribal Nation leader, etc. In addition to documented Tribal Nation consent, the plan must address additional considerations between the researcher and the Tribal Nation. USET SPF believes that such a required element for all NIH-funded research proposals will integrate Tribal Nation protection and sovereignty concerns into common research practice.