View all text of Subchapter V [§ 5381 - § 5399]
§ 5387. Provisions relating to the Secretary
(a) Mandatory provisions
(1) Health status reportsCompacts 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 5397 of this title.
(2) Reassumption
(A) In generalCompacts 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) ProhibitionThe 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 generalNotwithstanding 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
(D) Hearings
(b) Final offer
(c) Rejection of final offers
(1) In generalIf 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 subchapter;
(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 5383 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 5331(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
(d) Burden of proof
(e) Good faith
(f) Savings
(g) Trust responsibility
(h) DecisionmakerA 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, § 507, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 719.)