Tribal Programs: Resource Constraints and Management Weaknesses Can Limit Federal Program Delivery to Tribes
Released: 2019-11-19T00:00:00

Letter

Background

Federal agencies have many programs that provide services and benefits to tribes and their members. For example, the Department of the Interior’s (Interior) Bureau of Indian Affairs (BIA) within the Office of the Assistant Secretary-Indian Affairs (Indian Affairs) administers programs in natural resources management, Indian child welfare, and economic development—among other responsibilities. One key BIA responsibility is to facilitate tribes’ development of energy resources on and beneath tribal lands by reviewing and approving leases, permits, and other documents required when the lands with Indian energy resources are held in trust or restricted status. The Bureau of Indian Education (BIE), also within Indian Affairs at Interior, administers education programs to approximately 41,000 students on or near Indian reservations at 185 schools around the country. The Indian Health Service (IHS) within the Department of Health and Human Services is charged with providing health care to approximately 2.6 million Indians through more than 600 IHS or tribally operated facilities as of 2019. When services are not available at these facilities, IHS may pay for services provided through external providers. In addition, as part of its disease prevention efforts, IHS provides technical and financial assistance to Indian tribes for the cooperative development and construction of drinking water and wastewater systems and support facilities.

These and other federal programs may also be administered by tribal governments under a self-determination contract or self-governance compact under the Indian Self-Determination and Education Assistance Act of 1975, as amended. BIA and IHS are responsible for administering self-determination contracts that allow for tribal administration of specific government programs, including negotiating and approving each contract and its associated annual funding agreement and disbursing funds to the tribes. Each federally recognized tribe voluntarily decides whether, and to what extent, to pursue the administration of federal programs. According to a 2017 law journal article, by that year, nearly all tribes had used a self- determination contract or self-governance compact to take over the administration for one or more federal programs.

In February 2017 we added federal management of programs that serve tribes and their members to our high-risk list of federal areas that are most vulnerable to fraud, waste, abuse, or mismanagement or that are in need of transformation to address economy, efficiency, or effectiveness challenges. In particular, we found numerous challenges facing BIE and BIA and IHS in administering education and health care services, that put the health and safety of American Indians served by these programs at risk. In addition, we reported that BIA mismanages Indian energy resources held in trust and thereby limits opportunities for tribes and their members to use those resources to create economic benefits and improve the well-being of their communities. Our recommendations identified in the high-risk area do not reflect the performance of programs administered by tribes nor are they directed at any tribally operated programs and activities.

In our March 2019 high-risk update, we reported that the three agencies demonstrated progress to partially meet all five criteria for addressing high-risk issues: leadership commitment, capacity, action plan, monitoring, and demonstrated progress. We continue to monitor and report on progress made by the agencies in addressing issues in these three program areas.

Federal Agency Capacity, Funding Constraints, and Budget Uncertainty Limit Effective Delivery of Some Federal Programs Serving Tribes

We have previously reported that constraints in federal agency capacity, funding and budget uncertainty limit effective delivery of some federal programs for tribes and their members managed by Indian Affairs, BIA, BIE, IHS, and in other agencies’ tribal consultation activities as shown in the following examples:

High staff vacancies. In November 2016, we found BIA had high vacancy rates at some agency offices and that the agency had not conducted key workforce planning activities to ensure its workforce resources are appropriately deployed. We recommended that BIA establish a documented process for assessing its workforce composition at agency offices taking into account BIA’s mission, goals, and tribal priorities. In response to our recommendation, BIA has taken initial steps to assess its workforce composition; however more work is needed from BIA to establish a process to regularly assess its workforce composition and ensure it meets BIA and tribes’ needs. In February 2017 when we added improving federal management of programs that serve tribes and their members to our high-risk list, we found that high vacancies or declining staff levels across all three designated high-risk areas—education, health care, and Indian energy resources programs. For example, we reported that IHS had over 1,550 vacancies for various health care positions nationwide in 2016, and IHS officials said that the agency’s insufficient workforce was the biggest impediment to providing timely primary care. IHS has made some progress in demonstrating it has the capacity necessary to address the program risks we identified in our reports. For example, among other actions, in January 2019, IHS established an Office of Quality which includes divisions for Enterprise Risk Management and Internal Controls, Quality Assurance, Innovation and Improvement, and Patient Safety and Clinical Risk Management. As of August 2019, the Office of Quality had filled 14 positions. However, there are still key positions in the agency not yet permanently filled, including the Director of the Office of Finance and Accounting and the Deputy Director for Management Operations. In our August 2018 report, we also found that IHS’s overall vacancy rate for clinical care providers was 25 percent. Additionally, in our March 2019 high risk update and testimony, we reported that about 50 percent of all BIE positions had not been filled, according to recent BIE documentation, for a variety of reasons, including difficulty recruiting qualified individuals.

Insufficient staff skills or knowledge. We have also identified concerns about existing staff having the right skills and expertise to adequately perform job duties for effective implementation of Indian energy development programs. For instance, in November 2016, we found that BIA had not completed key workforce planning activities, such as an assessment of work skills gaps, that contributed to BIA’s inability to effectively support energy development. We recommended that BIA incorporate effective workforce planning standards by assessing critical skills and competencies needed to fulfill BIA’s responsibilities related to energy development and by identifying potential gaps. Interior agreed with this recommendation and in fiscal year 2019, BIA began identifying the skills and competencies necessary for select Indian energy-related occupations. BIA officials told us that, once complete, agency officials will be able to use the catalog of necessary skills and competencies to identify training needs for existing staff. Additionally, in our March 2019 report on tribal consultation, 47 of 100 tribes that provided comments to federal agencies in 2016 identified insufficient agency officials’ knowledge or training on tribal consultation as a key factor that hinders effective consultation. Several tribal officials we interviewed shared similar concerns, and officials from 9 of 21 agencies we spoke with (43 percent) identified staff knowledge or training as a factor that hinders effective consultation.

Inadequate funding. We have previously reported on agency and tribal perspectives on the adequacy of funding and how it impacts federal programs and also examined spending levels of some programs. In May 2018, we reported that federal agencies provided about $370 million to develop, construct, or repair tribal drinking water and wastewater infrastructure projects to address tribes’ needs in fiscal year 2016. This amount is about 11 percent of the more than $3 billion in total existing tribal drinking water and wastewater infrastructure needs that IHS had identified that same year. Further, in January 2019, we found that funding shortfalls— estimated at 60 percent for one BIA program in a 2013 report to Congress— may limit tribal options for administering federal programs using self- determination contracts or self-governance compacts. Many tribal stakeholders told us that they supplement federal funding when there are funding shortfalls. As we have previously reported, when tribes financially supplement the federal program they take over, it diverts funds away from other economic development opportunities and other government functions and services they provide to their communities and citizens. In our March 2019 report on tribal consultation, according to tribal comments we reviewed and interviews with tribal officials we found tribes’ ability to participate in consultations is limited by availability of funding from the tribe, federal agencies, or other sources. Tribes and agencies both identified insufficient resources, including funding to support tribes’ participation in consultation activities, as a key factor hindering effective consultation.

Effects of budget uncertainty. Budget uncertainty arises during continuing resolutions—temporary funding periods during which the federal government has not passed a budget—and during government shutdowns. Failure to enact annual appropriations for federal tribal programs in a timely manner may exacerbate the problem of limited resources. For example, in our September 2018 report examining advance appropriations authority for IHS, IHS officials and tribal representatives described several effects of budget uncertainty on their health care programs and operations. Among other things, we reported that effects of budget uncertainty include (1) exacerbated challenges related to recruitment and retention of staff, and (2) additional administrative burden and costs for both IHS and tribes involved in calculating revised allocations and modification of hundreds of tribal contracts each time a new continuing resolution is enacted. IHS officials and tribal representatives said that advance appropriation authority could mitigate the effects of this uncertainty because IHS could use this authority to ensure continuity of health care services during lapses in annual appropriations.

Management Weaknesses at Federal Agencies Hinder Effective Delivery of Some Federal Programs Serving Tribes

In our prior work, we have found a range of management weaknesses related to internal controls at Indian Affairs, BIA, BIE, and IHS that hinder effective delivery of some federal programs for tribes as shown in the following examples:

Oversight weaknesses. In March 2016, we found that weaknesses in Indian Affairs oversight led to safety and health deficiencies at BIE school facilities that endangered students. We recommended that Indian Affairs ensure that all BIE schools are annually inspected for safety and health, as required by its policy, and that inspection information is complete and accurate. Indian Affairs has taken steps toward implementing our recommendations. For example, in April 2019 Indian Affairs provided documentation that it had assessed the quality of two fiscal year 2018 BIE safety inspection reports. However, Indian Affairs has not provided us with documentation that it has assessed the quality of BIE safety inspection reports for fiscal year 2019—the first year BIE was responsible for inspecting all of its schools. We believe it is important that the agency demonstrate that BIE is capable of inspecting all schools for safety in fiscal year 2019 and that they produce inspection reports for schools that are complete and accurate. As of November 2019, we have not received further updates from the agency on this recommendation’s status. Additionally, in March 2016, we reported on weaknesses in IHS’s oversight of the timeliness of patient care that led to long wait times at IHS facilities. We found that IHS had not set any agency-wide standards for patient wait times at IHS federally-operated facilities. We recommended that IHS (1) develop and communicate specific agency-wide standards for patient wait times in federally- operated facilities, and (2) monitor patient wait times and ensure corrective actions are taken when standards are not met. IHS agreed with our recommendations and implemented the first recommendation by publishing patient wait time standards as part of its Indian Health Manual website in August 2017. As of March 2019, IHS officials said that the agency was working to implement the second recommendation by developing system-wide monitoring capacity. We will continue to review IHS’s progress.

Management weaknesses. In June 2015, we found shortcomings in BIA’s management of permits, and other approvals for energy development have led to lengthy review times and negatively impacted energy development on tribal lands. These lengthy review times have increased energy development costs for tribes, delayed projects, and led to lost revenue, among other impacts. For example, according to a tribal official, BIA took as long as 8 years to review some of its energy-related documents. In the meantime, the tribe estimates it lost $95 million in revenue that it could have earned from tribal permitting fees, oil and gas severance taxes, and royalties. We recommended that BIA develop a documented process to track its review and response times and enhance its data collection efforts. As of November 2019, the agency had taken initial steps toward implementing the recommendation by developing system enhancements to capture key dates during the review and approval process for energy-related documents. However, BIA needs to collect data from its system, develop time frames, and monitor agency performance to fully address these recommendations. In our January 2019 work on tribal self-governance, we reported that Interior’s process does not ensure that funds associated with self-determination contracts and self-governance compacts are disbursed in a timely manner, according to tribal stakeholders. These funding delays can therefore be a factor that hinders tribal use of these agreements. When funds are not disbursed in a timely manner, a tribal stakeholder told us that tribes may have to use funds from their general revenue accounts or seek other sources to cover federal program expenses. According to several tribal stakeholders, when a tribe has to use its own funds for the administration of federal programs—even temporarily—it can adversely affect the tribe in various ways. To help ensure that funds are disbursed in a timely manner, we recommended that Interior establish a process to track and monitor the disbursement of funds associated with self-determination contracts and self-governance compacts. Interior agreed with this recommendation, and as of November 2019, we are following up on its status.

Weaknesses in planning. In May 2017, we found that Indian Affairs did not have a comprehensive capital asset plan to guide funding for construction projects to maintain, repair, or replace infrastructure at its 185 BIE schools. Specifically, although Indian Affairs had determined which 10 schools it planned to replace next, it did not have a long-term capital asset plan for the remaining 175 BIE schools. Many of the 175 schools were in poor condition and had safety hazards. We recommended Indian Affairs develop a comprehensive long-term capital asset plan that includes a prioritized list of projects with the greatest need of funding. Indian Affairs agreed with the recommendation. As of October 2018, Indian Affairs provided a list of deferred maintenance projects for 2018 and documentation of processes for prioritizing such projects, among other things, but as of November 2019 had not yet provided documentation that it had completed a comprehensive long-term capital asset plan.

In conclusion, the resource constraints and management weaknesses in federal programs that serve tribes limit federal agencies’ effective delivery of programs to Native Americans. In many cases, we have made recommendations to agencies to take steps to address identified issues. While agencies have made some progress addressing recommendations to improve tribal programs identified in our high-risk and other areas, continued work to address these and other issues is needed. Sustained congressional attention to these issues and the relevant factors contributing to the disparities identified in the U.S. Civil Rights Commission’s report will help the federal government makes progress in addressing the needs of Native Americans.

Chairman Gallego, Ranking Member Cook and Members of the Subcommittee, this completes my prepared statement. I would be pleased to respond to any questions that you may have at this time.

GAO Contacts and Staff Acknowledgments

For further information regarding this testimony, please contact Anna Maria Ortiz at (202) 512-3841 or ortiza@gao.gov. If you or your staff have any questions about health care issues in this testimony or the related reports, please contact Jessica Farb at (202) 512-7114 or farbj@gao.gov. For questions about education, please contact Melissa Emrey-Arras at (617) 788-0534 or emreyarrasm@gao.gov. For questions about energy resource development, please contact Frank Rusco at (202) 512-3841 or ruscof@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement.

Key contributors to this statement include Lisa Van Arsdale (Assistant Director), Swati Thomas (Analyst-in-Charge), Edward Bodine, Kelly DeMots, Summer Lingard-Smith, Elizabeth Sirois, Jeanette Soares, Kiki Theodoropoulos and Leigh White.

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