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BIPARTISAN INFRASTRUCTRE CONSULTATOIN

On December 18, 2023, a Tribal Consultation was held between Tribal leaders and the Indian Health Service (IHS). IHS initiated the consultation to gather input to develop a spend plan for the third year of the Bipartisan Infrastructure Law (BIL).

WHY IS BIL IMPORTANT

The legislation, also known as the Infrastructure Investment and Jobs Act, appropriated $3.5 billion to the IHS, with $700 million made available over five years, beginning in FY 2022. According to IHS, the funds will provide 71,000 AI/ANs homes with critical services like water wells and onsite wastewater disposal systems and connections to community water supply and wastewater disposal systems. Such improvements are aimed at reducing inpatient and outpatient visits related to respiratory, skin and soft tissue, and gastroenteric disease, as every $1 spent on water and sewer infrastructure can save $1.23 in avoided direct healthcare costs, according to the Department of Health and Human Services.

The funding goes towards projects that fall within one of three categories. The category that is subject of consultation is “Tier 1,” which are projects that are ready to fund because all stages of planning are complete. IHS plans to allocate $581 million to support 475 Tier 1 projects. IHS also plans to allocate $60 million for design and construction document creation activities related to these projects, which include engineering design activities for proposed sanitation facilities, contract documents, and contract plans and specifications.

DISCUSSION

Representatives from IHS posed one question to Tribal leaders to help facilitate discussion: should IHS continue to apply BIL funding to only Tier 1 (Ready-to-Fund) “legacy projects” (e.g. projects included on Sanitary Deficiency Systems (SDS) list at the EOY 2021) for construction, design and construction documents as needed?

Several Tribal leaders suggested that IHS should prioritize funding projects, regardless of the tier they may be in, that will have the highest impact on health, as that method aligns with the Biden Administration’s goal of addressing immediate infrastructure needs across Indian Country.

Tribal leaders inquired as to the obstacles in staffing that IHS is facing, and IHS representatives explained that staffing, for positions such as construction engineers, is a continuing challenge because of the unique circumstances that exist within Indian Country when it comes to hiring and retention. The representatives added that, when it comes to the annual funding under the BIL, none of the funds can go to a Title V Tribe for that purpose. To address the Title V issue, IHS is “reprogramming” the annual allocation to support Title V Tribes for the workload that they have. Further, IHS has shared services center (SSC) staff, and dedicated human resources (HR) staff, tasked with identifying all of the current vacant positions that are needed to ensure project completion. IHS also focused resources on retention and relocation incentives for new engineers coming to IHS by providing a 10% group retention incentive for all current SSC staff, and on hosting recruitment events at engineering colleges and universities.

When asked if there are requirements that building materials and services be made and located in the United States, if there is a waiver for Indian Country, IHS representatives explained that the consulted with the Office of General Counsel, who told them that IHS is not held to that standard.

IHS representatives, in answering if Congress is satisfied with the progress IHS is making on the building of facilities, they answered in the negative and explained that, since projects are funded on an annual basis, that they are inherently going to take a long time to complete or to be “shovel ready.” The representatives also explained that the current project duration is 4 years from the time a Tribe signs an agreement until construction has been completed and that IHS has a goal of having 115 of the 475 projects fully designed by the end of current fiscal year. Over the last year, IHS has filled over 80 positions within the agency and have 40 selections pending.

When asked how IHS determines when to provide “shortfall funding,” IHS representatives explained that the agency requires an abstract that includes an actual amount of the shortfall, adding that emergency funds exist when going through the approval process would take too long. In terms of shortfall funding, IHS representatives explained that IHS held back $65.8 million in 2023 and that it had already sent out $30 million, which went towards projects that were over budget. As far as a plan moving forward, funds will remain within IHS until bids are received, at which time, a Tribe can submit a request for shortfall funds. If there are remaining shortfall funds at the end of FY 26, then those funds will be put towards Tier 1 projects.

Other Tribal leaders discussed the need of funds aimed at prevention as opposed funds to repair critical failures in infrastructure, which then require the need for engineers and the like. IHS representatives explained that all funding within IHS goes towards funding projects, and sometimes those projects have a planning need, but IHS does not set aside funds solely for maintenance.

The period to submit written comments concluded on January 4. According to IHS, there is a backlog of 1,369 needed sanitation facilities construction projects, and Indian Country critically needs the investment provided by BIL funds to provide Tribal communities with safe drinking water and adequate sewage systems in their homes.

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